August 2019: This chapter was updated as a result of local review and should be re-read throughout.
- 1. Introduction: Who are People with No Recourse to Public Funds?
- 2. Identifying people who have no recourse to public funds
- 3. Duty to inform the Home Office
- 4. Restrictions on the Local Authority
- 5. Undertaking a Human Rights Assessment
- 6. What to do when Someone with No Recourse to Public Funds asks for Support from Adult Social Care
- 7. Terminating Support
- Appendix 1: Human Rights Assessment Template
1. Introduction: Who are People with No Recourse to Public Funds?
People who have no legal entitlement to financial support or assistance from the state are people who have no recourse to public funds (NRPF). These are usually migrants who are excluded from mainstream benefits and housing due to their immigration status.
People with no recourse to public funds may be:
- people who have been granted refugee status from another European Economic Area (EEA) country (other than the UK) or are dependents of people in the UK who have refugee status from another EEA country;
- people who are citizens of an EEA country other than the UK or are the dependents of people who are citizens of an EEA country other than the UK;
- failed asylum seekers who have exhausted their appeal rights and who have failed to co-operate with removal directions;
- people who are unlawfully present in the UK who are not asylum-seekers, for example, people who have overstayed their leave to remain, people who have been trafficked into the country or people who entered the country illegally;
- people who have been granted limited leave to remain on the condition that they have no recourse to public funds; for example, people who are spouses/unmarried partners of someone with British citizenship or who has indefinite leave to remain who have been granted a two year probationary period on condition of no recourse to public funds;
- people who have been granted discretionary leave to remain, for example, ‘separated’ children or young people from non-suspensive appeal countries to whom the Home Office does not grant either refugee status or humanitarian protection, and are given 12 months leave to remain or until their 18th birthday, whichever is shorter;
- people on student visas who are unable to work and have no recourse to public funds.
The list is not exhaustive.
2. Identifying people who have no recourse to public funds
People who have no recourse to public funds should be identified as early as possible, but everyone is entitled to a respectful and humane response from the local authority which upholds their dignity and is perceived as helpful. Asking people at the point of contact about their residency and immigration status will create barriers and could be perceived as racist, but information gathered early on should identify people who have no recourse to public funds, as they will not have a national insurance number or be eligible for state benefits such as:
- 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.
If someone does approach the local authority for support and appears to have no recourse to public funds, because they have no national insurance number and are not in receipt of any state benefits, their residency and immigration status must be checked. This can be done by asking to see the person’s passport. If they are citizens of another EU country or have been granted refugee status by another EU country, they have no recourse to public funds. If they are citizens of a different country you should ask to see their immigration documents. If they have immigration permission on condition that they have no recourse to public funds, the statement ‘no public funds’ will be written on the person’s immigration documentation. If their status cannot be verified in any other way, you should check with the Home Office. You should inform the person that you need to do this (it is a legal requirement) and contact the Home Office by email. The email address is: EvidenceandEnquiry@homeoffice.gsi.gov.uk.
3. 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.
4. Restrictions on the Local Authority
The local authority is restricted by legislation with regard to what it can provide in terms of assistance and support for all the groups of people who have no recourse to public funds.
Schedule 3 of the Nationality, Immigration and Asylum Act 2002 (amended 2016) states that the following five groups of people are ineligible for support and assistance under Part 1 of the Care Act 2014:
- persons granted refugee status by another EEA State and their dependents;
- EEA nationals and their dependents (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: people who have overstayed their visas; illegal entrants; 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 dependent children who have been certified by the Secretary of State as having failed to take steps to leave the UK voluntarily.
In addition, Section 21 of the Care Act 2014 states that a local authority may not meet the needs for care and support of an adult or carer or perform their duty to prevent the needs for care and support of an adult to whom section 115 (Exclusion from benefits) of the Immigration and Asylum Act 1999 (amended 2016) applies ) whose needs for care and support have arisen solely:
- because they are destitute; or
- because of the physical effects, or anticipated physical effects, of being destitute.
A person is destitute if:
- s/he does not have adequate accommodation or any means of obtaining it; or
- s/he has adequate accommodation or the means of obtaining it, but cannot meet his / her other essential living needs.
Section 115 applies to people who are subject to immigration control and this means a person who is not a national of an EEA State and who:
- requires leave to enter or remain in the United Kingdom but does not have it;
- has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;
- has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or
- has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4. This paragraph gives leave to remain only until a pending appeal has been heard.
Note – “Maintenance undertaking”, in relation to any person, means a written undertaking given by another person in pursuance of the immigration rules to be responsible for that person’s maintenance and accommodation.
If section 115 applies to someone who has needs for care and support which do not arise solely because they are destitute, the local authority can assess and provide support in the usual way to the person and their carer.
5. Undertaking a Human Rights Assessment
The restrictions outlined above are, however, subject to the overriding obligation upon local authorities not to perform their duties in such a way as to breach people’s human rights. If it appears that to withhold support could create a breach, the local authority must undertake a human rights assessment. If this shows that the withholding of support would indeed breach the person’s human rights, then discussion should take place with a senior manager who will make a decision whether the bar on providing support or assistance under Schedule 3 of the Nationality, Immigration and Asylum Act 2002 or Section 21 of the Care Act 2014 should be lifted. The assessment must include consideration of whether the person can return to their country of origin without that causing a breach of their human rights. If there are no legal or practical barriers to the person returning, then the local authority does not have a duty to support. Paragraph 5 of Schedule 3 of the Nationality, Immigration and Asylum Act 2002 states that:
‘A person who is in an excluded group can only be provided with support or assistance under the Care Act 2014 where this is necessary for the purpose of avoiding a breach of a person’s rights under the European Convention on Human Rights (ECHR) or European Union (EU) treaty rights.’
The Court of Appeal, in the case of R (Kimani) v LB Lambeth (2003), found that: ‘A State owes no duty under the Convention to provide support to foreign nationals who are permitted to enter their territory but who are in a position freely to return home.’
The local authority should therefore conduct a human rights assessment to establish whether the person is able to return to their country of origin to avoid remaining destitute and homeless in the UK, therefore preventing a breach of Article 3 of the ECHR. This will involve consideration of whether there are any legal or practical barriers in place which may prevent the person from doing so.
When interviewing the individual, social workers should explore, as fully as possible, existing sources of help and support in the community, voluntary groups, social networks etc. A template is included as part of this guidance to help structure the assessment and to help social workers to demonstrate that all requirements under legislation have been met.
5.1 Returning to country of origin.
The first stage of the Human Rights assessment is to identify whether return is reasonably practicable, which means establishing if there are any legal or practical barriers preventing a person from leaving the UK. If there is a barrier preventing return, there is little point in continuing the assessment when it is already clear that a return to the person’s home country cannot realistically happen. The human rights assessment in such cases may therefore be brief, simply documenting and evidencing the barrier, and noting at what point it may need reviewing.
Where a person is eligible for care and support (including accommodation) under the Care Act and this is not provided even though a legal or practical barrier is preventing the person from leaving the UK, then this is likely to result in the local authority breaching the person’s right to be free of inhuman and degrading treatment under Article 3 of the ECHR. In the case of Secretary of State v Limbuela (2004), the court found that a decision which compels a person to sleep rough or without shelter and without funds usually amounts to inhuman treatment and therefore engages Article 3 of the ECHR.
When there is clearly no legal or practical barrier to return, then the local authority does not have a duty to support a person. The courts have determined that the denial of support in such instances does not constitute a breach of human rights: see R(AW) v Croydon LBC (2005).
5.1.1 Legal barriers to return
An outstanding application or appeal made to the Home Office raising human rights grounds (for example, Article 3 and/or Article 8) would constitute a legal barrier to return.
5.1.2 Practical barriers to return
There may be a clear practical issue that presents a barrier to a person being able to return. Examples would include, the person’s inability to:
- acquire identity or travel documentation, for example, due to the lack of a national embassy in the UK or functioning government in their country of origin; or
- travel due to ill health or a medical condition, such as pregnancy.
When such a barrier is temporary, it might be appropriate to provide support on a short term basis and to assist the person to overcome this.
For people who require documentation to be able to travel then their national embassy should be able to explain how they can obtain this or this issue may be addressed if they return with assistance from the Home Office Voluntary Returns Service.
If someone has a health condition which may impair their ability to travel, medical advice should be sought to establish whether or not they are able.
5.1.3 Medical cases
When a person is receiving treatment in the UK for a medical condition, they may claim that they cannot return to their country of origin because they will be deprived of the type or level of medical treatment that they are receiving in the UK. This issue has been considered by the Courts in the context of whether the removal of such a person from the UK engages Article 3 but the threshold for being granted leave to remain on medical grounds alone is very high. The leading case is N v Secretary of State for the Home Department (2005), in which the House of Lords held that the Secretary of State’s decision to return a Ugandan woman with AIDS did not breach her Article 3 rights, even though she could live for decades on treatment in the UK but would most likely die within a matter of months if returned to Uganda. Baroness Hale stated:
‘The test in this sort of case, is whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity..
There may, of course, be other exceptional cases, with other extreme facts, where the humanitarian considerations are equally compelling.’
This means that even when the medical care a person would receive in their country of origin is less than what they require and can access in the UK, return would only breach the person’s human rights if there is insufficient care to enable them to die with dignity.
In 2017, the European Court of Human Rights provided some guidance on the health and social circumstances which would meet the test set out in N, in a case of a person in Belgium who had multiple health issues including TB and leukaemia, which extends the scope in which Article 3 may be engaged. The court stated:
‘… that the “other very exceptional cases” within the meaning of the judgment in N v the United Kingdom (§43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.’
In an adult social care case, De Almeida v Royal Borough of Kensington and Chelsea (2012), the High Court found that there would be a breach of Article 3 if the Portuguese national in question, who was terminally ill with AIDS and also suffered from depression and skin cancer, was refused accommodation under section 21 National Assistance Act 1948 (pre-dating the Care Act 2014) and returned to Portugal. It was found that Mr De Almeida was a very exceptional case, as referenced in N: he was at the end of his life, and, despite Portugal having a health and welfare system, returning him to Portugal would have led to an undignified and distressing death, with him facing delay and difficulty in obtaining accommodation and benefits, whilst being away from his existing support network of friends and healthcare professionals.
When determining whether the exclusions to social care support apply, it is likely that only certain articles of the ECHR will need to be considered, but this will depend on a person’s circumstances. Article 3 is the most likely to be breached by the withholding of adult social care support, and so is explored in more detail below.
5.1.4 Article 3
‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
Article 3 is an absolute right, which means it is never defensible to breach this right.
If someone has needs for care and support, careful consideration must be given to whether failing to meet those needs would result in the person being in a situation which amounts to inhuman or degrading treatment.
If someone is barred from receiving support and there are insufficient grounds to lift the bar, there is still no prohibition on a local authority undertaking its general duties with regards to providing information and advice or prevention. It can also undertake a needs assessment and may meet urgent needs for care and support whilst undertaking the relevant assessments.
Social workers should also consider family circumstances, where appropriate, and consider any issues around other adult family members or children. If there are concerns around issues involving children in the family, the social worker must liaise with children’s social care. If there are adult safeguarding concerns, a referral to the Safeguarding Team must be made.
6. What to do when Someone with No Recourse to Public Funds asks for Support from Adult Social Care
Some benefits and state services are not classified as ‘public funds’ and so may be accessed; this includes primary healthcare, compulsory psychiatric care and aftercare under S117, emergency medical treatment and education for children up to the age of 18.
The Local Authority may also have a responsibility to provide social care support, although establishing eligibility for support for someone with no recourse to public funds does require more steps to be taken than establishing eligibility for other adults. These steps are set out below.
6.1 Step 1: Does the person have needs which meet the National Eligibility criteria?
The person’s eligibility for support should be assessed in the usual way, identifying all of their needs and mapping those needs against the National Eligibility Criteria. If the person does not meet the eligibility criteria, they cannot be provided with social care support, although they can be provided with advice and information in the same way as anyone else. If the individual is in need of urgent / immediate support, the social worker should discuss the case with the line manager and obtain specific authorisation to arrange the necessary support for a limited period until the steps set out here can be completed.
Paragraph 4 above sets out the groups of people who are barred from receiving support under either Schedule 3 of the Nationality, Immigration and Asylum Act 2002 (amended 2016) or Section 21 of the Care Act 2014.
If someone is barred from receiving social care support, but has needs which meet the National Eligibility criteria, a human rights assessment should be undertaken.
6.3 Step 3: Undertaking a human rights assessment
The assessment should be undertaken using the template in Appendix 1 below.
6.4 Step 4: Deciding whether or not to lift the bar
This decision should be made by a senior manager – Assistant City Manager or above as making the wrong decision will always mean breaking the law. The assessment of need and the human rights assessment should be carefully considered and one of the following decisions should be taken:
- If the person does not have needs which meet the National Eligibility criteria, they cannot be offered support from Adult Social Care. If the person has other needs, which arise because they are destitute and if their human rights would be breached if those needs were not met, the local authority may still have a duty to support, but discussion should take place with the Asylum Team;
- If the person has needs which meet the National Eligibility criteria, but their human rights would not be breached by withholding support, the bar on providing support should remain in place;
- If the person has needs which meet the National Eligibility criteria and their human rights would be breached by withholding support, the decision should be made to lift the bar on providing support.
The decision, and the evidence on which the decision was made should be carefully recorded to demonstrate consideration of and compliance with the law. When concluding that the provision of care and support under the Care Act 2014 is not required because a person can return to their country of origin to avoid a breach of their human rights which may be incurred if they remain destitute in the UK, then this must be clearly documented in the human rights assessment. Potential barriers to return must be addressed and a detailed assessment of return must be documented.
6.5 Step 5: Arranging support
Social workers must ensure the assessment record and support plan sets out the basis upon which support is provided and outlining the needs. This should cover:
- the communication needs of the person;
- any special accommodation needs;
- health needs;
- length of proposed support.
7. Terminating Support
The decision to terminate support for an ongoing case should be made by the team manager. This needs to be informed with an up to date assessment.
The social worker must inform the person if their support is to be terminated. This should be done in an interview, with the use of an interpreter if necessary.
The social worker should arrange for a letter to be sent to the person, including the 28 day notice period from when support will terminate and advising them of their right to appeal if they disagree with the decision. This letter should be translated into the person’s first language as appropriate.
Appendix 1: Human Rights Assessment Template
Click here to access the Human Rights Assessment Template