May 2020: Coronavirus / COVID-19 Guidance
- 1. Introduction
- 2. Legal Restrictions on Providing Assistance
- 3. Role of the Local Authority
- 4. Terminating Support
The term no recourse to public funds (NRPF) applies to people who are subject to immigration control.
The definition of ‘subject to immigration control’ includes non-European Economic Area (EEA) nationals who:
- require leave to enter or remain in the UK but do not have it;
- have leave to enter or remain in the UK which is subject to a condition that they do not have recourse to public funds; or
- have leave to enter or remain in the UK given as a result of a maintenance undertaking (for example, they are adult dependant relatives of people with settled status).
The statement ‘no public funds’ will be written on the person’s immigration documentation, if they have immigration permission with NRPF.
People subject to immigration control are not entitled to receive the following welfare benefits:
- Attendance Allowance;
- Carer’s Allowance;
- Child Benefit;
- Child Tax Credit;
- Council Tax Reduction (formerly Council Tax Benefit);
- Disability Living Allowance/Personal Independence Payment;
- Housing Benefit;
- Income Support;
- Income Based Jobseeker’s Allowance;
- Income Related Employment and Support Allowance;
- Personal Independence Payment;
- Severe Disablement Allowance/Employment and Support Allowance;
- Social Fund Payment;
- State Pension Credit;
- Universal Credit;
- Working Tax Credit.
They are also not entitled to allocated local authority housing, or assistance from the local authority in relation to homelessness.
People who are subject to immigration control may require the support of an interpreter in their contact with adult social care (see Interpreting, Signing and Communication Needs).
There are additionally other groups of migrants who may request subsistence and /or accommodation from the local authority, because they are not entitled to welfare benefits and local authority housing, and therefore require NRPF services. These may include:
- EEA nationals who are not subject to immigration control but may not be able to access certain welfare benefits and homelessness assistance if they fail the right to reside and / or habitual residence tests, which are applied when determining eligibility for these services. This also applies to British citizens who are returning to the UK after having lived abroad for a period of two years or more;
- Asylum seekers and refused asylum seekers with care needs.
For more detailed information, see Practice Guidance for Local Authorities (England): Assessing and Supporting Adults who have No Recourse to Public Funds (NRPF) (No Recourse to Public Funds Network).
Asylum seekers may be entitled to support from UK Visas and Immigration. For more information see UK Visas and Immigration: Asylum Support, Section 4 Policy and Process.
Duty to inform the Home Office
The local authority is required to inform the Home Office of:
- any person they suspect or know to be unlawfully present in the UK; and
- a refused asylum seeker who has not complied with removal directions.
This duty should be explained to adults upon presentation to the local authority.
2. Legal Restrictions on Providing Assistance
2.1 Adults subject to immigration control who are destitute but have no additional needs
The Care Act 2014 provides that a local authority may not meet the needs for care and support of an adult or carer (and may not perform their duty to prevent the needs for care and support of an adult) to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies and whose needs for care and support have arisen solely:
(a) because the adult is destitute,
(b) because of the physical effects, or anticipated physical effects, of being destitute.
A person is destitute if:
(a) s/he does not have adequate accommodation or any means of obtaining it (whether or not his/her other essential living needs are met); or
(b) s/he has adequate accommodation or the means of obtaining it, but cannot meet his/her other essential living needs).
2.2 Adults ineligible for support and assistance
Schedule 3 of the Nationality, Immigration and Asylum Act 2002 (as amended) states that the following five classes of person are ineligible for support and assistance under Part 1 of the Care Act 2014:
- persons granted refugee status by another EEA State and their dependants;
- EEA nationals and their dependants (but not UK nationals or children);
- failed asylum seekers who fail to comply with removal directions, and their dependents;
- persons unlawfully present in the UK. This includes:
o people who have overstayed their visas,
o illegal entrants,
o refused asylum seekers who made their application for asylum in-country i.e. at the Home Office rather than at the port of entry.
- failed asylum seekers with dependant children who have been certified by the Secretary of State as having failed to take steps to leave the UK voluntarily.
Note that this category is wider than Section 2.1 Adults subject to immigration control who are destitute but have no additional needs’
Please note also that, whilst those falling within this category are not entitled to ‘support or assistance’ under the local authority’s duty to meet eligible needs or its duties towards carers under the Care Act 2014, there is no prohibition on a local authority undertaking its general duties with regard to providing information and advice or prevention.
2.3 Human Rights considerations
The legal restrictions as set out above are, however, subject to the obligation upon local authorities not to perform their duties in such a way as to breach the human rights of service users.
In all situations, the local authority should provide support if this is necessary for the purpose of avoiding a breach of the service user’s human rights, that is the local authority should go on to assess needs if there would be a breach of human rights if support is not provided.
In practice this means that local authorities must undertake a human rights assessment to consider whether, or to what extent, the circumstances are such that the bar on providing support or assistance under Part 1 of the Care Act 2014 should be lifted in order to avoid a breach of human rights or (in the case of EEA nationals and their family members) community treaty rights. This will involve consideration as to whether the adult is freely able to return to their country of origin without there being any breach of their human rights. If there are no legal or practical barriers to return, the local authority does not have a duty to support an adult who is freely able to return to their country of origin, as was found in Kimani v LB Lambeth (2003). The courts have determined that the denial of support in such instances does not constitute a breach of human rights: see AW v Croydon LBC; A, D and Y v Hackney LBC and another (2006).
Local authorities must have regard to the case of Limbuela v Secretary of State (2004), in which the High Court determined that a decision which compels a person to sleep rough, or be without shelter, and without funds usually amounts to inhuman treatment and therefore engages Article 3 of the European Convention on Human Rights (ECHR).
In an email to the NRPF Network dated 29 July 2015, the Home Office and Department of Health confirmed that:
- Schedule 3 of the Nationality, Immigration and Asylum Act 2002 prevents excluded groups from receiving ‘support or assistance’ under the Care Act 2014 (see (link) 3.2 Adults Ineligible for Support and Assistance;
- local authorities may undertake needs assessments for adults requiring care and support (under section 9) and carers (under section 10);
- local authorities may meet urgent needs for care and support whilst undertaking the relevant assessments (section 19(3));
- there is no prohibition on a local authority undertaking its general duties with regards to providing information and advice (section 4) or prevention (section 2).
3. Role of the Local Authority
3.1 Pre-assessment screening: all cases
In all cases, in establishing the facts of the case when an adult with NRPF requests assistance, the local authority should:
- establish whether it is the responsible local authority, that is, whether the person is ordinarily resident within its area (see Ordinary Residence);
- carry out an immigration check to establish any eligibility for public funds under immigration legislation. The adult must be asked to provide evidence of their nationality and, if relevant, evidence of their immigration status in the UK. To obtain immigration status checks from the Home Office on a case by case basis, contact Home Office’s Intervention and Sanctions Directorate (ISD) by email EvidenceandEnquiry@homeoffice.gsi.gov.uk;
- check whether there are any legal restrictions on providing assistance (see Section 2, Legal Restrictions on Providing Assistance) and
- establish whether it needs to meet urgent needs for care and support, including the provision of accommodation.
3.2 If there are legal restrictions on providing assistance
3.2.1 Adults Subject to Immigration Control who are Destitute but have no Additional Needs
- Do they fall within the statutory bar to the provision of care, support and prevention under Section 21 Care Act 2014, i.e have their needs arisen solely as a result of destitution and are they subject to immigration control? (see Section 2.1 Adults subject to immigration control who are destitute but have no additional needs above);
- If so, a human rights assessment should be undertaken to assess whether, or to what extent, the bar on providing support or assistance should be lifted in order to avoid a breach of human rights (see Section 2.3, Human Rights considerations);
- If not (that is, they have additional needs not arising solely from destitution), an assessment of needs should be undertaken in the usual way. These include situations where there is a possibility or evidence that a migrant has additional mental or physical health, learning disability or social care needs, or any safeguarding concerns (see Adult Safeguarding).
3.2.2 Adults Ineligible for Support and Assistance under Schedule 3 of the Nationality, Immigration and Asylum Act 2002
- Do they fall within the statutory bar to the provision of care and support? (see Section 2.2 Adults ineligible for support and assistance above);
- f so, there is no restriction on the local authority providing information and advice or prevention;
- If so, a human rights assessment should be undertaken to assess whether, or to what extent, the bar on providing support or assistance should be lifted in order to avoid a breach of human rights( see Section 2.3, Human Rights Considerations);
- If not, an assessment of needs should be undertaken in the usual way.
4. Terminating Support
Where support is to be terminated, this decision should be made by the service manager who should be informed by a current assessment record.
The adult should be informed of this decision by the social worker. This should be confirmed in writing and should include the 28 day notice period from when support will terminate. It should also advise the person to seek legal advice if they disagree with the decision. The letter should be translated into the person’s first language as appropriate.