Guidance for local authorities: Assessing and supporting victims of domestic violence who are from abroad and have no recourse to public funds (NRPF)

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1 Guidance for local authorities: Assessing and supporting victims of domestic violence who are from abroad and have no recourse to public funds (NRPF) 1. Purpose This paper provides additional guidance for local authorities in assessing whether they have a duty to support people who are subject to immigration control, who are victims of domestic violence and have no recourse to public funds (NRPF). This supplements the guidance provided in Guidance for local authorities: assessing and supporting destitute people from abroad with NRPF. This additional guidance is provided as the legal position regarding the assessment of, and support for, victims of domestic violence can be particularly unclear. As with the initial guidance document, this document is intended as background guidance only on local authority duties and powers and how authorities might wish to respond to requests for service provision. It does not attempt to provide an exhaustive statement of the relevant law; nor is it a substitute for legal advice either generally or in relation to individual cases. 2. Context The Association of Chief Police Officers (ACPO) Guidance on Investigating Domestic Violence (2004) defines domestic violence as Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, [i.e. aged 18 or over], who are or have been intimate partners or family members, regardless of gender and sexuality. Family members are defined as mother, father, son, daughter, brother, sister and grandparents, whether directly or indirectly related, in-laws or stepfamily. Victims of domestic violence who are from abroad and have NRPF will usually have been granted limited leave to enter the United Kingdom as a spouse or a fiancé of a person present and settled in the UK. This leave is granted subject to a condition that the individual has no recourse to public funds, although individuals granted leave as spouses or civil partners are permitted to take up employment. NRPF Network: Domestic Violence Guidance 1

2 Under the Immigration Rules there is a concession for victims of domestic violence. Under the concession people who were admitted to the UK with limited leave to remain as spouses or unmarried partners or civil partners may apply for indefinite leave to remain, as long as they can provide evidence that the relationship broke down permanently before the end of their limited leave (or during the marriage or partnership probationary period ) as a result of domestic violence. However, whilst this application is pending at the Borders and Immigration Agency (previously the Immigration and Nationality Directorate (IND)), people in this situation have no access to public housing provision or welfare benefits. Spouses and partners of EEA nationals fleeing domestic violence may be entitled to alternative support (depending on their individual circumstances) and should seek advice from their local Job Centre regarding what support or benefits they may be entitled to. 3. Summary of key steps As set out in the original NRPF guidance, there are two fundamental steps that an authority should undertake in assessing whether they have a duty to support an individual or an individual with children 1. Conduct an eligibility test; and 2. Carry out an assessment of need. 3.1 Assessing eligibility In assessing eligibility a local authority should: Establish whether it is territorially responsible (that is whether the person is ordinarily resident in the borough); Establish that the applicant is destitute; Carry out an immigration check to establish eligibility under immigration legislation; Check whether the authority is excluded from supporting the person under section 54 and schedule 3 of the Nationality, Immigration and Asylum Act 2002; and Where the applicant falls within one of the excluded groups, carry out a human rights assessment to establish whether there is an obligation on the authority to provide support in order to prevent a breach of the person s human rights. 3.2 Assessing needs In order to assess needs, local authorities should carry out, as appropriate a community care assessment; or a community care mental health assessment; or NRPF Network: Domestic Violence Guidance 2

3 (The needs assessment is to establish whether the applicant is destituteplus, that is whether they have needs over and above mere destitution: details and outcomes of the assessment should be recorded.) a section 17 Children Act assessment. 4. Establishing eligibility for services additional guidance for cases involving domestic violence 4.1 Establishing ordinary residence A victim of domestic violence who flees to another local authority remains ordinarily resident in the local authority from which they fled, until such time as they are permanently housed in another local authority. In cases that do not involve NRPF the agreed practice between local housing authorities is that a victim fleeing to a refuge in another local authority area is likely to be accepted for housing by the local housing authority in the new area. This practice cannot apply where the victim has NRPF as individuals are excluded from social housing. A few refuges may offer NRPF places, which are available for use in an emergency situation. The difficulty arises when the victim cannot stay elsewhere until they are provided with indefinite leave to remain enabling them to access public funds and housing. In these situations the victim is still ordinarily resident in their original authority but is physically in need of services in the new authority. Good practice is for the two authorities to work in partnership in meeting the individual s needs and those of any dependent children. Where there is a duty on the original local authority to provide support to people who have an assessed need for care and attention (see 3.2 and 5), the original authority could make financial provision to allow the victim to move out of the refuge into local rented accommodation i.e. pay rent and subsistence. The new authority is responsible for providing local services in respect of health, community care, education etc. In the event of the victim being granted indefinite leave to remain, giving them access to work or benefits, including housing benefit, then the individual would become ordinarily resident in the new authority. 5. Establishing whether someone is destitute-plus additional guidance for cases of domestic violence 5.1 Single women In assessing whether an individual is destitute-plus, that is whether an individual s need is to any material extent made more acute by some NRPF Network: Domestic Violence Guidance 3

4 circumstance other than mere lack of accommodation and subsistence, domestic violence may be relevant. The case of Khan v Oxfordshire indicated that there may be instances where a victim of domestic violence does have a need for care and attention which arises from domestic violence itself and not solely because of destitution. This will depend on the individual circumstances of each case. The letter to local authorities from the Crime Reduction and Community Safety Group at the Home Office, dated 16 February 2006, reminds local authorities: to be mindful that some victims of domestic violence could have specific needs for care and attention and/or have dependent children, which may make them eligible for assistance under section 47 of the NHS & Community Care Act, the Local Government Act s.2, the Children Act 1989 or other relevant legislation. 5.2 Cases involving the needs of the child Where the applicant is an adult with parental responsibility for a child in their care, there should be an assessment of whether the adult is destitute plus. If the adult is accepted by a local authority for support then it follows that their dependent children should also be supported so that they can remain in their parent s care. Consideration must be given to undertaking a section 17 assessment to establish whether the child has needs over and above those that apply to the carer, for example the existence of special needs. It is also important to check that the child has access to appropriate health and educational provision. If the adult is not accepted as destitute-plus and they have a dependent child in their current care, then it is essential that a section 17 assessment is carried out under the Children Act In addition to the usual holistic assessment of the child s needs and circumstances, the assessment must include: establishing ordinary residence; checking immigration status; and establishing destitution, as these may be different from those of their carers. If the child is found to be destitute then the local authority has a duty to provide services including accommodation to that child. Under the Children Act 1989 this can be in the form of accommodation of the child alone under section 20 or by the provision of services which can include accommodation for the child and their carer under section 17. In making this decision consideration needs to be given to the child s individual needs and its right to family life under Article 8 of the European Convention on Human Rights (ECHR). NRPF Network: Domestic Violence Guidance 4

5 Expectant and nursing mothers may also qualify for support under section 21 (1)(a) and section 21 (1)(aa) of the National Assistance Act Where the child or their carer is ineligible for support under Schedule 3 of the Nationality, Immigration and Asylum Act 2002, it is advisable for the local authority to seek legal advice for each individual case due to potential conflict between this and the requirements of the Children Act Further information Further information on domestic violence can be obtained from: NRPF Network: Domestic Violence Guidance 5