This procedure and associated practice guidance information (see above) was added to the APPP in October 2020.
1. Introduction to this Procedure
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:
- EEA citizens;
- people granted asylum in other EEA countries;
- failed asylum seekers;
- visa overstayers; and
- others without leave to remain.
However, Paragraph 5 of Schedule 3 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.
When working with someone who is barred from accessing support, an assessment must be undertaken to find out whether there are grounds to lift the bar.
2. Interface with other Policies or Guidance
This procedure should be used in conjunction with the Hull City Council No Recourse to Public Funds Practice Guidance and the Hull City Council guidance on ordinary residence (see Ordinary Residence chapter).
People who are barred from accessing adult social care support 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. Therefore, one single check, not on citizenship but on entitlement to support from Hull City Council adult social care should be carried out on everybody who asks for support. This should seek to identify a person’s ordinary residence, citizenship and right to access support. This one check, applied indiscriminately, will identify people who are British citizens and ordinarily resident in Hull, those who are British citizens but ordinarily resident elsewhere, and those who are not British citizens.
If someone is barred from receiving adult social care support, the first consideration should be whether they can be assisted to return to their country of origin in order to avoid a breach of their human rights which may occur if they remained in the UK without adult social care support. For example, if the withholding of support meant someone would become homeless and destitute, or otherwise be forced to live in inhuman and degrading conditions, this would be a breach of their human rights created by remaining in the UK. Wherever possible, they should be supported to apply to the Home Office for an assisted return to their country of origin.
The bar on providing support under Part 1 of the Care Act 2014 can only be lifted if the person’s human rights or EU treaty rights would be breached by failing to do so.
If someone is barred from receiving support, unable to return to their country of origin 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.
4. Procedure Steps
|1||Carry out an assessment to find out whether the person has needs which meet the National Eligibility criteria and complete a support plan if necessary||Social worker/ assessor|
|2||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 legal section and the Asylum Team||Social worker/ assessor|
|3||Establish the person’s ordinary residence and citizenship.||Social worker / assessor|
|4||If the person appears to be unlawfully present in the local authority area, you must inform the Home Office and tell the person of this requirement.||Social worker / assessor|
|5||Establish whether the local authority is barred from providing support – is the person an EEA citizen (with or without a right to reside), someone granted asylum in another EEA country, a failed asylum seeker, a visa overstayer or someone not granted leave to remain.||Social worker / assessor|
|6||Carry out a human rights assessment using the template contained within the NRPF practice guidance.||Social worker / assessor|
|7||Establish whether there are any legal or practical barriers to the person returning to their country of origin in order to avoid a breach of their human rights which may result from remaining in the UK without funds and becoming destitute. If there are barriers, offer the person support to overcome them.||Social worker / assessor|
|8||Establish whether the person’s human rights would be breached if they were to return to their country of origin. If there is evidence that they would, the person may be referred to legal advice, provided with advice and information and otherwise assisted to apply to the Home Office for asylum on human rights grounds but the local authority cannot take the decision to facilitate their remaining in Britain unlawfully. The duty to inform the Home Office remains in place. (See step 4 above)||Social worker / assessor|
|9||If concluding that 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, document this and the rationale for this in the Human rights assessment. Seek advice from legal section.||Social worker / assessor|
|10||If the person’s human rights would not be breached by a return to their country of origin, assist them to complete the online application to the Home Office for an assisted return.||Social worker / assessor|
|11||If the person is unable to return to their country of origin, even with assistance, consider whether the person’s human rights would be breached if the bar on providing social care support was not lifted. If it appears that they would, seek advice from legal section.||Social worker / assessor / Team Manager|
|12||If legal section concur that a breach would occur if the bar was not lifted, submit a request to the Q&R Panel to lift the bar.||Social worker / assessor / Team Manager|
|13||Following careful consideration of the needs assessment and the human rights assessment, one of the following decisions must be made:
a) 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 and the bar should not be lifted because the prohibition placed by section 21 of the Care Act on the provision of adult social care to meet needs of people subject to immigration control which arise out of destitution remains in place.
b) If the person has needs which meet the National Eligibility criteria, but their human rights or EU treaty rights would not be breached by withholding support, the bar on providing support should remain in place.
c) If the person has needs which meet the National Eligibility criteria and their human rights or EU treaty rights would be breached by withholding support, the decision should be made to lift the bar on providing support.
|14||The decision and the evidence on which the decision was made should be carefully recorded to demonstrate consideration of and compliance with the law.||Q&R Panel|
|15||If the decision is taken to lift the bar on providing support, the support plan should be considered and referred to JWF if necessary. Support may be provided via a managed budget or a direct payment and the decision making in respect of the method of delivering the personal budget must be made in accordance with the HCC policy on direct payments||Q&R Panel|
|16||In addition to support commissioned by Hull City Council, there may also be a need for an additional financial payment to be requested. Additional payments may only be requested where they are necessary to avoid a breach of the person’s human rights under article 3 – the right to freedom from inhuman and degrading treatment. This right is upheld if the person has access to adequate food, warmth, shelter and hygiene facilities. If these are not delivered by commissioned support, an additional payment may be necessary. Any payment should be calculated in accordance with the HCC minimum income guarantee currently applied in respect of everyone supported by ASC. The level of the MIG is adjusted annually and is published in the paying for care handbook. Any request for additional funding should be made to the Quality and Risk Panel.||Social worker / assessor|
|17||If an additional cash payment is agreed which cannot be paid into the person’s bank account within the terms of the HCC policy on direct payments, a request must be made to the HCC Cash and Banking service to open an account and administer the payment in a similar way to the administration of appointeeships. An email should be sent to email@example.com.||Social worker / assessor|
|18||Once the account has been set up, the worker supporting the person should fill in the funds request form The amount requested should only be sufficient to cover day to day needs and should never exceed the agreed weekly allowance as any amount in excess of this would constitute a loan and the City Council is only able to loan funds in certain prescribed circumstances, such as those under a deferred payment agreement. If the person wishes to request further funding, the request should be made to ASC via the usual funding request channels, i.e. the Quality and Risk Panel and the Joint Working Forum||Social worker / support worker|
|19||The worker should email the completed funds request form to firstname.lastname@example.org giving at least 2 working days notice of intention to collect. Requests can be made more than 2 working days in advance to support future planning but cannot be made with less notice as the cash and banking service may only hold sufficient ready cash to meet anticipated need.||Social worker / support worker|
|20||The cash and banking team will enter the details onto the Pick up requests spreadsheet in use at the cash and banking service to manage cash flow, using the Cost centre code C1864 and the sub code 4101||Cash and banking team|
|21||Terminating Support: The decision to terminate adult social care support for someone should only be made if the person no longer meets the eligibility criteria set out in the Care Act. This should follow the same process for terminating support in operation for all people receiving adult social care support, i.e. following review and reassessment. However, for people with NRPF, the withdrawal of support may lead to a breach of their human rights and so, prior to enacting any termination, the impact of withdrawing support on their human rights must be assessed by following steps 6 – 10 set out above.||Social worker / assessor|
|22||If further support is necessary to avoid breaching the person’s human rights, this support cannot be provided under the Care Act but may be provided under the Localism Act which confers a power on local authority to do what they consider necessary to avoid acting in a way which breaches a person’s human rights. Discussion should take place with HCC legal section and with the Asylum Team to agree what support is necessary, on what basis and by which local authority department it should be funded. Although the nature and type of support may change, there should be no gap between the provision of support under the Care Act and the provision of support under the Localism Act which could result in a breach of the person’s human rights.|