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 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 on their future residence rights. If they have pre-settled status they may need advice about how return will impact on their ability to meet the continuous residence requirement to apply 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 a child in need assessment;
• 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 child in need assessment to determine whether the family are eligible for support. Families should not be refused support without proper enquiries being made to identify needs of the child.

Emergency Support

Local authorities will undertake a detailed investigation into the family's financial and housing circumstances to establish whether the family will be eligible for support under section 17 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.

The local authority is restricted by legislation in what it can provide in terms of assistance and support for all the categories of people outlined in the previous section.

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 need in the local authority's area. There may be a requirement for an additional local authority to co-operate, e.g. where the child resides in one local authority area but attends school in a different local authority area.

Under Section 54 of the Nationality, Immigration and Asylum Act 2002, families who fall under categories a. to d. are not eligible for support from the local authority under Sections 17, 23C, 23CA, 23CZB, 24A or 24B of the Children Act 1989. They are also not eligible for adult social care support under the Care Act 2014 or accommodation under homelessness legislation.

The Home Office allows for limited forms of assistance to be given by local authorities to some families and this could be in the form of:

• Travel assistance to leave the UK to people with dependents under 18 years;
• Temporary accommodation to people with dependents under 18 years awaiting the implementation of their travel arrangements;
• Temporary accommodation to people in category d. with dependents under 18 who are awaiting instructions for removal.

However, the local authority still has the following duties towards all children, young people and families regardless of their status:

• To carry out a Child in Need Assessment for all children under 18 years old who are in families, where there may be concerns about a child/children's welfare and/or safety under the Children Act 1989 (including any issues that may indicate that the child is or has been trafficked or a victim of compulsory labour, servitude, and slavery);
• To carry out a Child in Need Assessment for all 'separated' children under the age of 18 and to provide them with services in line with needs identified under the Children Act 1989;
• To carry out an assessment of an adult for community care services under the Care Act 2014 where the adult's need for such services have not arisen solely due to destitution and/or to avoid a breach of the adult's human rights which would otherwise occur if no services were provided.

In practice this means that where a referral has been made with NRPF as the sole reason for referral children’s services will:

• Keep the case open for assessment and annual review under the Children Act to safeguard and promote children, even where the family is housed out of county;
• Support accommodation and subsistence costs for families and dependents until a resolution as outlined above is achieved;
• In an emergency, or in the case of an out of hours referral where a child is destitute, provide accommodation on the day until an assessment of need has been carried out;
• Liaise with the Home Office;
• Provide families with a list of registered local practitioners / legal representatives who can give legal advice regarding their situation.

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 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 who are lawfully present in the UK but are prevented by their immigration status from being able to claim benefits usually provided to families with a low income.

The local authority must gather information which is adequate for the purpose of performing its statutory duty under section 17 Children Act 1989, and must also have due regard to the child's best interests in the context of having regard to 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 child in need assessment, in balance with 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;
• 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 has with them and whether they are providing any support.

Depending on the family's particular circumstances, information and documents relating to the family's finances and housing will need to be requested.

The child in need assessment must consider all relevant information, all findings and the reasoning behind them must be fully documented, with the parents being given an opportunity to respond.

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 will also need to be undertaken in conjunction with the child in need assessment in order to determine whether support must be provided to prevent a breach of the family's human rights.

Ongoing Duty to Reassess Need

Section 17 is an ongoing duty, and when a family's circumstances change the local authority must decide whether this means that the child's needs must be reassessed.

Excluded Groups

When a family with NRPF requests support, the local authority must establish whether the parent is in an excluded group, and therefore the family can only be provided with the support or assistance that 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 person 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 has been granted by another EEA country.

They can only receive 'support or assistance' under section 17 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 and they are habitually resident in the UK;
• Pre-settled status and are exercising a qualifying right to reside.

In such cases, eligibility for support will be determined through a needs assessment, and a human rights assessment will only be required when these classes of EEA national are 'in breach of immigration laws'.

For further information, see Eligibility Rules for EEA nationals (NRPF Network).

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 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 may occur if they remain destitute in the UK. This means that, along with establishing whether there is a child in need, local authorities must identify whether there are any legal or practice barriers preventing the family's return to the parent's country of origin, as return cannot be considered unless these are cleared. This is done by undertaking a human rights assessment.

Families that are Not Excluded

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 port of entry (providing the other categories specific to refused asylum seekers do not apply).

Such families are not excluded from section 17 support and would need to be provided with assistance 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 because section 17 of the Children Act 1989 provides a safety net to protect destitute children.

Conducting the Human Rights Assessment

The human rights assessment should consider whether the family can freely return to the parent's country of origin. If so, would 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 identify whether return is reasonably practicable, which means establishing if there are any legal or practical barriers preventing the family from leaving the UK. If there is a barrier preventing return, then further consideration at this time will not be needed, 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 reviewing.

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 late stages of pregnancy or caring for a new-born baby.

When such barriers apply they may only be temporary, and it might be appropriate to provide support to the family on a short term basis and assist them to overcome 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 has the nationality of one country and a right of residency in another country, then return to both countries must be considered.

Limitations on the Ability to Self-support

When considering the parent's 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 on a quarterly basis;
• 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;
• 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 in order 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 can secure accommodation or has other housing arrangements available to them, the local authority must consider whether the family can realistically access this alternative support and whether the suggested accommodation arrangement is suitable for the child.

Providing Support

The local authority has a power to provide a wide range of services in order to meet assessed needs under section 17 Children Act 1989. The local authority is not under a duty to meet all formally assessed needs; section 17 is a target duty and may take into account its resources in determining which needs are to be met, but 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 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.

The Asylum Support webpage (GOV.UK) sets out the basis for housing, financial support, access to NHS healthcare and schools which may be available for an asylum seeker and their family while waiting to find out if they will be given asylum.

The person seeking a service must have sufficient identification although this may not be possible if, for example, the person is fleeing domestic abuse. In such cases evidence should be established at a later date via the assistance of a solicitor or the police;

If they do not bring the necessary documentation on first presentation, the assessment can still go ahead but the social worker must inform them that any decisions regarding provision of support can only be made when they have provided the appropriate documents, and they should have all the required documents before another interview is arranged;

If an interpreter is required, arrangements should be made with the interpreter to inform the person concerned of the documentation required;

Those seeking a service should be asked to verify their identity and immigration status with the production of the following forms of identification:

• Passports and birth certificates for all members of the family;
• If available, travel documents e.g. return air tickets;
• Home Officer papers (Application Registration Card (ARC), application letters or refusal letters) and solicitors' letters; and
• If available, bank account statements (from the last 3 months).

All identification documents supplied must be original documents, which should be photo-copied or scanned and the copy/scanned documents retained on the relevant file;

If the applicant or any dependents have health needs, they must provide any documented evidence of ill health or disability for any member of the family, e.g. OT reports, mental health/psychiatric reports.

• It is important to establish where the person has a local connection as it may be another local authority, which has responsibility for this person;
• Local connection criteria need not always apply, for example, if the person is at risk of violence if they return to the local authority where they have a local connection;
• It should be stressed social workers will follow up on the contact details given by those seeking a service to make enquiries to verify the local connection;
• If it is established that the person has a local connection with another local authority, social workers should refer the person to that local authority.

When a family requests accommodation and/or financial support, the local authority will establish 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 7.3, Assessments when the Exclusion under Schedule 3 Nationality, Immigration and Asylum Act 2002 Applies - Human Rights Assessment);
3. Where a parent is in an excluded group, find out whether there are any immigration claims pending with the Home Office or appeal courts, or other legal barriers preventing them from leaving the UK or returning to their country of origin.

If return to country of origin is being considered, the child in need 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.

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 parent's 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 addressed and a detailed assessment of return must be documented.

The human rights assessment must also outline what options the family may be offered in order 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.

The primary reason for establishing the parent's nationality and immigration status is because local authorities need to find out whether the family 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 - see Section 7.3, Assessments when the Exclusion under Schedule 3 Nationality, Immigration and Asylum Act 2002 Applies - Human Rights Assessment.

Nominated persons will be able to ring the Home Office to check if the person concerned has a 'live' asylum application, been refused asylum, or has some other application pending;

Social workers should have the documentation outlined in Key Documents to establish the status and identity of the applicant and his/her dependents and this should be cross-referenced with the Home Office as fully as possible;

Social workers need to tell over-stayers they have a duty to inform the Home Office as they have approached the local authority for assistance.

It is important to build up a clear picture of the family's circumstances and social workers need to assess if the client is indeed destitute, i.e. he/she has no means of supporting him/herself nor family or friends whom he/she can rely on for support;

Social workers must consider if the information given both verbally and in documented form is credible. If they do not think it is credible, they must be confident that there is enough evidence to the contrary (taking care to record this) in case the local authority decision is subject to legal challenge.

When the assessment is completed, the social worker should discuss the outcome of the assessment with their line manager.

If the family is in need of urgent/immediate support, the social worker should seek legal advice and discuss the case with the line manager. Authorisation must be sought from the Service Manager before any provision of immediate support.

The decision to terminate support for an ongoing case should be made by the Service Manager. This needs to be informed with an up-to-date assessment.

The social worker will need to inform the parents 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 persons concerned including the 28-day notice period from when support will terminate and to advise them to seek legal advice if they disagree with the decision. This letter should be translated into the person's first language as appropriate.

Social workers will need to ensure the Assessment Record sets out the basis upon which support for the family is provided and outlining the needs of the family. This should cover:

• If the family needs an interpreter;
• Special accommodation needs;
• Health needs;
• Length of proposed support;
• The legislation under which the family is being supported, e.g. Section 17 of the Children Act 1989.

For families with no recourse to public funds who require accommodation the following steps should be taken:

1. The person concerned and the social worker should identify the specific needs of the family taking into account location, type of property required;
2. The social worker should identify appropriate properties;
3. The social worker and person/s concerned should view suitable properties and identify a suitable property taking into account the needs of the family and the location;
4. Accommodation must be fully furnished;
5. The social worker will negotiate with the landlord the payment of the bond, rent and acquire the relevant information to make payment;
6. The social worker will obtain copies of documents indicating that all safety checks have been completed in relation to the property;
7. The tenancy agreement will only be in the parent's name as this will facilitate future claims for benefits if leave to remain is granted;
8. The social worker will make arrangements for payments of rent to the landlord on a monthly basis directly to his/her bank account and ensure that Council tax is also paid;
9. The social worker will ensure that prior to and after the family move into the tenancy everything is in place;
10. If the family is granted leave to remain at a future date the social worker will meet with the landlord and family to clarify payment of rent, council tax and tenancy agreement. This will be confirmed in writing to the landlord and the tenant;

The landlord and family has a duty to notify the local authority that they are in receipt of benefits/housing benefit and any over payment of rent to the landlord will be reclaimed by the local authority.

Under s. 54A Borders, Citizenship and Immigration Act 2009 (inserted by s.3 Immigration Act 2014), the Secretary of State must consult the Independent Family Returns Panel in each family returns case, on how best to safeguard and promote the welfare of the children of the family, and in each case where the Secretary of State proposes to detain a family in pre-departure accommodation, on the suitability of so doing, having particular regard to the need to safeguard and promote the welfare of the children of the family.

A family returns case is a case where a child who is living in the United Kingdom is to be removed from or required to leave the United Kingdom, together with their parent/carer.

Pre-departure accommodation is a secure facility designed to be used as a last resort where families fail to co-operate with other options to leave the UK, such as the offer of assisted voluntary return.

The Panel may request information in order that any return plan for a particular family has taken into account any information held by other agencies that relates to safeguarding, welfare or child protection. In particular a social worker or manager from Children's Services may be invited to contribute to the Panel.

A decision to refuse or withdraw support under section 17 of the Children Act 1989 may be made following a child in need and/or human rights assessment.

When the provision of accommodation and financial support is being refused following a human rights assessment, which has determined that the family can return to the parent's country of origin, then assistance with return must be offered to the family. This could be provided by the Home Office or local authority.

When section 17 support is being terminated because there has been a change of circumstances that 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 homelessness assistance. 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.

Once the case is resolved, Children's Services should:

• Review the case in order to understand if there are any remaining Child in Need or child protection issues;
• Hold an exit interview with the family capturing the outcome for the family and their voice;
• Write to the family to confirm the decision including the start of a 28-day notice period until NRPF support will finish;
• In the case of being granted status, support the family to get documentation that will enable access to benefits and make referrals to the appropriate support (for housing, employment and any other services that they are now eligible for);
• Close the case on LCS if there are no further concerns.

Children's Services will complete a C&F assessment within 45 working days with management oversight by day 10.

If required, a human rights assessment must be completed within 10 working days. It is not a requirement that a qualified social worker undertakes this assessment, therefore if there are family support workers who develop a specialism within the team, they may undertake this assessment to be completed prior to the completion of the C&F.

Children's Services will ensure that information on LCS and NRPF Connect are up to date. NRPF Connect is a shared database used by local authorities and the Home Office which allows for the quicker progression and resolution of queries related to immigration status. The Care Leavers' Service manages this database in Surrey County Council. All correspondence with the Home Office related to immigration status should be via NRPF Connect. This will require close attention to efficient communication between the area teams and the Care Leavers' Service.

Children's Services will hold responsibility for cases on LCS and will keep the case open for the duration of support.

Team Managers with their Service Managers will review the NRPF caseload, spend and upcoming case reviews on a quarterly basis in order to speed up the resolution of cases and maximise the resources of the council.