Families with No Recourse to Public Funds

The Home Office may assist an EEA national with a voluntary return, including arranging and purchasing travel documents and financial assistance, if they are without status or leave to remain in the UK.

An EEA national wishing to return to their country of origin should be advised to seek legal advice about how this will impact their future residence rights. If they have pre-settled status, they may need advice on how returning will affect their ability to meet the continuous residence requirement for applying for settled status.

See also: Get Help to Return Home if You're a Migrant in the UK (GOV.UK).

When a family is referred for or requests accommodation and/or financial support, the local authority will need to consider:

• Whether there is a duty to undertake an assessment, this is part of the triage of the referral [see above];
• What the parents' nationality and immigration status is in order to:
  • Ascertain eligibility for employment, welfare benefits or asylum support; and
  • Determine whether the family can only receive support if this is necessary to prevent a breach of their human rights.
• Whether emergency support needs to be provided whilst assessments are being carried out.

At this first point of contact, the parent can be asked for information relating to their financial circumstances, which may be used to inform the assessment to determine whether the family are eligible for support. Families should not be refused support without proper enquiries being made to identify the needs of the child.

5.1.1 Threshold to Undertake an Assessment

Assessment will be conducted in accordance with the Working Together to Safeguard Children. An assessment is likely to be required for any family with children presenting on the basis that they do not have adequate accommodation and/or sufficient income to meet their/the child’s living needs because of their inability to access benefits or employment, or where the child's circumstances suggest this may be the case. For example:

• The child regularly does not have adequate food, warmth, shelter or essential clothing;
• The child has a disability, in which case the child is a child in need;
• When a parent's limited financial resources or having no recourse to public funds increases the vulnerability of the children to criminal activity, e.g. illegal working; and
• When a parent is unable to provide for material needs, which negatively impacts on the child.

Where evidence is provided that families are destitute or homeless, then the child is in need.

5.1.2 Checking Immigration Status

When a family requests accommodation and/or financial support, the local authority will also seek to establish the nationality and immigration status of the parents for several purposes:

1. To ascertain any possible entitlement to welfare benefits, housing assistance, employment or Home Office asylum support;
2. To identify whether the parent is in an excluded group and so can only be provided with support where this is necessary to prevent a breach of their human rights (see Section 5.3, Assessments when the Exclusion under Schedule 3 Nationality, Immigration and Asylum Act 2002 Applies - Human Rights Assessment);

The primary reason for establishing the parent's nationality and immigration status is because local authorities need to find out whether the family can receive 'support or assistance' under section 17 of the Children Act 1989 or if such support is only available where it is necessary to prevent a breach of their human rights - see Section 5.3, Assessments when the Exclusion under Schedule 3 Nationality, Immigration and Asylum Act 2002 Applies - Human Rights Assessment.

However, the absence of clarity about immigration status, or the extent to which the family or child has access to public funds by reason of immigration status, should not inhibit an assessment of the family and child’s needs, in particular in circumstances  of urgent and/or immediate need.

5.1.3 Emergency Support

Local authorities will conduct a detailed investigation into the family's financial and housing circumstances to determine whether the family is eligible for support under Section 17 of the Children Act 1989.

Under section 17, a local authority has the power to provide emergency housing and/or financial support to a family when a child's welfare is at risk whilst assessments or enquiries are being carried out, including where this is apparent at the point of first contact.

While the initial pre-assessment screening for a visa application does not include interim support, a family with children facing destitution due to their immigration status can seek urgent interim support from the local authority under section 17 of the Children Act 1989. The local authority has a duty to assess the child's needs and can provide temporary accommodation and financial support to prevent the child from coming to harm.

5.2.1 Which authority must undertake an assessment?

Various court cases have found that the duty to assess under section 17(1)(a) of the Children Act 1989 is triggered by the physical presence of a child in the local authority's area. There may be a requirement for an additional local authority to cooperate, e.g. where the child resides in one local authority area but attends school in a different local authority area.

5.2.2 Assessment Considerations

As part of the assessment, the local authority would need to establish what other support options are available to the family in the UK, or whether return to the country of origin may resolve the family's inability to self-support in the UK when the parent is in an excluded group.

The courts have been clear that the purpose of Section 17 is to provide a safety net of support for families who either cannot leave the UK or are lawfully present in the UK but are prevented by their immigration status from claiming benefits usually provided to families with low incomes.

The local authority must gather information which is adequate for the purpose of performing its statutory duty under section 17 of the Children Act 1989 and must also have regard to both the child's best interests in the context of the need to safeguard and promote the welfare of children.

Any information and evidence already gathered by the local authority as part of its initial enquiries must be considered within the assessment, weighing all other factors relating to the welfare of the child:

• How the family's financial and housing circumstances are affecting the child's health and development, what assistance the child needs and how the child would be affected if they do not receive such help;
• How urgently the family needs assistance;
• Details of any medical conditions affecting the child or their family members;
• Details of the child's current and previous schools; and
• If the child's other parent is not in the family household, their details, including nationality and immigration status, what contact the parent and child have with them and whether they are providing any support.

Depending on the family's particular circumstances, information and documents related to their finances and housing will need to be requested. There will be circumstances where individuals may not always be able to fully or readily provide evidence of their circumstances. The absence of such documentation does not mean that an assessment of whether and to what extent the child is in need and what services can be provided to meet that need should not be undertaken and completed.

The assessment must consider all relevant information, including all findings and the reasoning behind the decision made. The child’s plan must be set out in writing and provided to both parents and any referring organisation, with the parents being allowed to respond. The local authority should also inform the family and all relevant agencies of the outcome of the assessment and, if the child is in need, the support plan, in accordance with Working Together to Safeguard Children.

5.2.3 Limitations on the Ability to Self-support

When considering the parents' ability to self-support, it is important to be aware of the restrictions imposed by the Immigration Act 2014 and Immigration Act 2016 that apply to people who do not have any current immigration permission:

• Since 12 December 2014, banks and building societies have been prohibited from allowing a person with no current immigration permission to open a new current account;
• A person with no immigration permission may have their bank accounts closed or frozen, as, since 1 January 2018, banks and building societies have been required to check details of current account holders against a database of Home Office information every quarter;
• Since 1 February 2016, private landlords in England have not been able to legally rent or sub-let a property to a person who does not have any current immigration permission and who has not been granted permission to rent on an exceptional basis by the Home Office. This also applies to renting a room to paying lodgers;
• Since 1 December 2016, landlords have been required to take action to end a tenancy or evict a tenant when they find out or have reasonable cause to believe that the occupier does not have any immigration permission; when the Home Office informs a landlord that this applies to their tenant, the landlord may undertake possession proceedings without having to obtain a court order; and
• On 12 July 2016, undertaking work or self-employment became a criminal offence, punishable by imprisonment, for people who do not have any current immigration permission, or have a condition attached to their leave to remain restricting employment.

Local authorities must be fully aware of these measures to ensure that they do not inadvertently encourage or condone criminal activity when determining what alternative support options are available to a family.

When a local authority finds that a child is not in need because the parent[s]/family can secure accommodation or has other housing arrangements or income/support available to them, the local authority must identify where and what kind of support the network can provide i.e. consider whether the family can realistically access this alternative support and/or whether the accommodation arrangement is suitable for the child. [1]

5.2.4 Providing Support

The local authority has the power to provide a wide range of services to meet assessed needs under Section 17 of the Children Act 1989. The local authority is not under a duty to meet all formally assessed needs. Section 17 is a target duty, and the local authority may take into account its resources in determining which needs are to be met. However, such a decision must be reached rationally, and the local authority must act reasonably.

The Court of Appeal in R (C, T, M & U) v LB Southwark [2016] EWCA Civ 707, set out the following principles:

• An assessment must be carried out to determine the needs of a particular child, in line with statutory guidance (e.g. Working Together to Safeguard Children) and with proper consideration of the best interests of the child;
• Support for families with NRPF should not be fixed to set rates or other forms of statutory support without any scope for flexibility to ensure the needs of an individual child are met;
• Local authorities must undertake a rational and consistent approach to decision-making, which may involve cross-checking with internal guidance or other statutory support schemes, so long as this does not constrain the local authority's obligation to have regard to the impact of any decision on a child's welfare.

5.2.5 Ongoing Duty to Reassess Need

Section 17 is an ongoing duty, and when a family's circumstances change, the local authority must reassess whether the child's needs have also changed.

_{[1] R. (on the application of OK and Others) v. London Borough of Barking and Dagenham [2017] EWHC 2449 (Admin) - "Local authorities need to properly consider the support available and specifically identify where support will come from. It is insufficient for a local authority to say a child can be supported by their network without specifying particularly where and what kind of support the network can provide."}

5.3.1 Excluded Groups

When a family with NRPF requests support, or support is requested on their behalf, the local authority must establish whether the parent is in an excluded group. Therefore, the family can only be provided with support or assistance where it is necessary to prevent a breach of their human rights —a 'human rights assessment'.

Section 54 and Schedule 3 Nationality, Immigration and Asylum Act 2002 (as amended) set out categories of persons who are not eligible for support from local authorities, being families where a parent is:

• In breach of immigration laws, for example, is a visa overstayer, illegal entrant, or appeal rights exhausted (ARE) in-country asylum seeker;
• An ARE asylum seeker who has failed to comply with removal directions;
• A person with refugee status that another EEA country has granted.

They can only receive 'support or assistance' under section 17 of the Children Act 1989 if such support is necessary to prevent a breach of their human rights.

The exclusion will not apply when an EEA national has settled status, pre-settled status, or leave to enter as a visitor. In such cases, eligibility for support will be determined through a needs assessment. A human rights assessment will only be required in limited cases when an EEA national is 'in breach of immigration laws'.

Schedule 3 does not mean that assistance can automatically be refused to a family when the parent is in an excluded group, because support must be provided where this is necessary to avoid a breach of any member of the family's human rights.

The purpose of Schedule 3 is to restrict access to support for a family where the parent is in an excluded group because they either have no permission to remain in the UK, or can no longer self-support, and when returning to country of origin (where they may be able to access employment and receive services), would avoid a breach of human rights which would otherwise occur if they remain destitute in the UK. This means that, in addition to determining whether a child is in need, local authorities must also identify any legal or practical barriers that may prevent the family's return to the parents' country of origin, as return cannot be considered unless these are addressed. This is done by undertaking a human rights assessment.

5.3.2 Families that are Not Excluded

Hence, the Schedule 3 exclusions do not apply to all families with NRPF. A family will not be excluded from receiving assistance under section 17 where the parent has one of the following immigration status types:

• Leave to enter or remain in the UK with the NRPF condition;
• Pre-settled status (five years' limited leave to remain);
• Settled status (indefinite leave to remain);
• EEA family permit or EU Settlement Scheme family permit;
• Asylum seeker;
• Refused asylum seeker who claimed asylum at the port of entry (providing the other categories specific to refused asylum seekers do not apply).

Such families are not precluded from section 17 assessment support if they are found to be eligible for this following a child in need assessment.

When a parent can work but is unable to claim benefits to top up a low income, such as housing benefit and tax credits, and cannot access more affordable social housing, they will face difficulties funding childcare and sustaining employment that enables them to afford accommodation and provide for their family's living needs. When the child is 'in need' as a result of this, local authorities will be required to provide accommodation and/or financial support in the absence of such benefits. The courts have found that this is a positive duty and also that national policies restricting access to mainstream welfare support are lawful, as Section 17 of the Children Act 1989 provides a safety net to provide assistance to children in need.

5.3.3 Conducting the Human Rights Assessment

The human rights assessment should consider whether the family can freely return to the parents' country of origin. If so, would the return result in a breach of the family's human rights?

Determining Whether the Family Can Freely Return

The first stage of the assessment is to determine whether return is reasonably practicable, which involves identifying any legal or practical barriers that may prevent the family from leaving the UK. If there is a barrier preventing return, further consideration at this time will not be necessary, and 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 to be reviewed.

Legal Barriers to Return - e.g. an outstanding application or appeal to the Home Office on human rights grounds.

Practical Barriers to Return - e.g. where a family member is unable to:

• Obtain identity or travel documentation;
• Travel due to ill health or a medical condition; or
• Travel due to being at a late stage of pregnancy or caring for a newborn baby.

When such barriers apply, they may only be temporary, and it may be appropriate to provide support to the family on a short-term basis and assist them in overcoming this barrier, for example, by helping to obtain travel documentation.

Determining a Breach of Human Rights

When it is clear that return is reasonably practicable because there are no legal or practical barriers preventing a family from leaving the UK, the next step is to determine whether the family can return to the parent's country of origin to prevent a human rights breach from occurring, or whether return would give rise to a human rights breach and therefore support must be provided.

If a parent has dual nationality or holds the nationality of one country and has the right of residency in another country, then returning to both countries must be considered.

Return to Country of Origin

When concluding that the provision of accommodation and financial support under section 17 of the Children Act 1989 is not required because the family can return to the parents' country of origin to avoid a breach of 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 identified and addressed, and a detailed assessment of the return process must be documented.

The human rights assessment must also outline what options the family may be offered to prevent a breach of human rights:

• Whether accommodation and financial support will be provided pending return;
• What method of return has been recommended and whether any additional support will be provided, for example, through a Home Office assisted return.

5.3.4 Considerations when Parents are in an Excluded Group

When a parent is in one of the groups of people that are excluded from receiving accommodation and financial support under section 17, a human rights assessment may also need to be undertaken in conjunction with the child in need assessment to determine whether support must be provided to prevent a breach of the family's human rights.

If a return to the country of origin is being considered, the assessment should also address the child's needs within the country of origin and how they may or may not be met, as this information would be relevant to the human rights assessment.

A decision to refuse or withdraw support under section 17 of the Children Act 1989 may be made following an assessment, which may also include a human rights assessment.

When the provision of accommodation and financial support is refused following a human rights assessment that determines the family can return to their country of origin, assistance with return must be offered to the family. The Home Office or local authority may be able to provide this.

When section 17 support is being terminated because there has been a change of circumstances, which means that a family can now claim welfare benefits and homelessness assistance, they will need to be given a notice period and support with making these claims. Local authorities are under a legal duty to refer a family to the housing authority of their choice for assistance with homelessness. In England, the housing authority is required to establish whether homelessness can be prevented when a person is eligible and threatened with homelessness within 56 days.