NO RECOURSE TO PUBLIC FUNDS GUIDANCE AND PROCESS

Transcription

1 NO RECOURSE TO PUBLIC FUNDS GUIDANCE AND PROCESS Summary: Individuals or Families identified as having No Recourse to Public Funds may be particularly vulnerable because of a community care need and therefore may become eligible for a service from the local authority. This guidance outlines London Borough of Suttons responsibilities under the National Assistance Act 1948 and Children Act 1989 and 2004 Draft NoRecourseToPublicFunds LBS v1 AK Page 1 of 11

2 CHILDREN AND FAMILIES WITH NO RECOURSE TO PUBLIC FUNDS GUIDANCE Introduction No Recourse to Public Funds (NRTPF) is a condition imposed by the UK Border Agency (UKBA) on people subject to immigration control, disentitling them to welfare benefits, public housing and UKBA asylum support. There are significant restrictions on the right to work for people with NRTPF. Despite these restrictions to services, families with NRTPF or people with NRTPF who are particularly vulnerable because of a community care need may be eligible for a service from the local authority. Support, in the form of accommodation and subsistence, under the National Assistance Act 1948 and Children Act 1989 are not considered public funds. Local authorities therefore must undertake relevant assessments of eligibility and need for people with NRTPF who present at social services departments. Key groups include: Failed asylum seekers (usually supported by UKBA) Families that have overstayed their visa Families where a parent has a spousal visa but cannot support themselves or their family in the UK Families where a parent has a spousal visa for less than 2 years and has become a victim of domestic violence Key issues include: Central government does not issue statutory guidance on the eligibility of people with NRTPF for services from local authorities Central government does not reimburse local authorities for their expenditure on people with NRTPF NRTPF is a complex issue and subject changes arising from case law For unaccompanied asylum seeking children (UASCs) please refer to the separate LBS policy and procedure. Key legislation: Children Act 1989 and 2004 National Assistance Act 1948 Children (Leaving Care) Act 2000 and 2010 Immigration and Asylum Act 1999 Nationality, Immigration and Asylum Act 2002 Asylum and Immigration (Treatment of Claimants etc) Act 2004 Immigration, Asylum and Nationality Act 2006 Local Government Act 2000 Human Rights Act 1998 Draft NoRecourseToPublicFunds LBS v1 AK Page 2 of 11

3 NHS and Community Care Act 1990 Mental health Act 1983 Assessing entitlement for support There are 2 fundamental components to this assessment (1) eligibility (2) need. Eligibility: The local authority area where the child was living when the need arose is responsible for assessing that family. (Exceptions are where a child is accommodated by another local authority or subject to a care order to another local authority.) The local authority must establish that the child/family is destitute i.e. not having adequate accommodation or the means to meet essential living needs. The individual must demonstrate that they have no other means of support available, including support from family, friends, the voluntary or community sector, savings, a sponsor, eligibility for welfare benefits or selling anything of value. Immigration status must be established by the local authority. This can be done through the UKBA s LA Communications and General Applications Service (GAPs). The local authority must also check as to whether the family is excluded from support under the Nationality, Immigration and Asylum Act 2002, i.e. person granted refugee status by another EEA state, an EEA national and dependants, a failed asylum seeker who has failed to comply with removal directions or a person unlawfully present in the UK. (If the family is excluded the local authority must still undertake a human rights assessment, to establish whether there is an obligation to provide support to prevent a breach of a family s human rights.) Assessment of need: This will need to take into account whether the parent is presenting solely as having a child or as having community care needs in their own right. If a family is unlawfully in the UK, or an EEA national, there are substantial restrictions on the level of support that can be provided. A child that is destitute may be considered a child in need and therefore may be eligible for support under section 17 of the Children Act 1989 and must be assessed under this section. The child in need assessment must take into account needs and risks for the child, plus the local authority must establish ordinary residence, destitution and immigration status of the child. If the child is found to be a child in need then the local authority has a duty to provide services. This could be services under section 17 for the child and their family or, in very exceptional circumstances, accommodation for the child alone under section 20. If the family is excluded from support under the Nationality, Immigration and Asylum Act 2002 then a human rights assessment should be Draft NoRecourseToPublicFunds LBS v1 AK Page 3 of 11

4 undertaken in conjunction with the needs assessment. Consideration must be given to the child s needs in the UK and in the country of origin, should they be returned there. (Country of origin information can be accessed from the Home Office website and national embassies.) Local authorities will need to consider resolving the family s destitution by offering assistance in returning the family to the parent s country of origin. A human rights assessment should include o Support history in the UK o The child in need assessment o Family, friends or other ties in the UK and in the country of origin o Whether the parent will be able to access resources in their country of origin o Current case law and legislation o What support will be offered by the local authority to avoid a breach of their human rights If one parent has British citizenship/indefinite Leave to Remain and has meaningful contact with the child then they may make an application for leave to remain for their family under article 8 Human Rights Act If it is found that withholding support would be a breach of the family s human rights then subsistence support must be provided. If it is found that withholding support would NOT be a breach of the family s human rights then support may be offered for the family to return to their country of origin. A human rights assessment is the lead assessment for EEA nationals requesting support. Special considerations Families with NRTPF fleeing domestic violence: If an adult has been in the UK on a spousal visa for less than 2 years and they and/or their dependent become victims of domestic violence, they can apply for indefinite leave to remain under the Domestic Violence Rule. Those making such applications must seek legal advice in completing the application. These families are also able to apply immediately to the UKBA for 3 months limited leave to remain, which allows them to apply for benefits for that period. The notification form Protecting Victims of Domestic Violence (Des./DV) must be downloaded from and returned to domestic.violence@homeoffice.gsi.gov.uk. A separate application for benefits must then be made to the Department for Work and Pensions. If a person fears returning to their country of origin because of the stigma associated with domestic violence or the breakdown of a marriage then an application can be made under article 3 of the Human Rights Act Draft NoRecourseToPublicFunds LBS v1 AK Page 4 of 11

5 Leaving care provisions: Post 18 former UASC whose appeal rights have been exhausted have NRTPF, although they will be entitled to leaving care services. However leaving care provisions fall within schedule 3 Nationality, Immigration and Asylum Act This means that some former UASC may fall within the excluded groups and the duties of the local authority to provide support will be limited and subject to a human rights assessment. Onward referral for those found ineligible for support For families to whom the local authority owes no duty to support, they should be referred on to organisations that can help them return home or arrangements should be made by the local authority for travel home. Refused asylum-seeker families should be referred to the UKBA if there is no duty to support. Visa overstayer families who are not eligible for support should be referred to the International Organisation for Migration (IOM) who may assist them to return to their country of origin. The local authority may also purchase tickets home for such families by exercising powers under the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 or section 2 of the Local Government Act With regards to EEA migrant families or families who gained refugee status in another EEA state, the local authority may purchase return home tickets, in order to avoid a breach of a person s human rights. If a family refuses to return to their country of origin in situations where the local authority has no duty to support, any hardship that follows will not be caused by a failing on the part of the local authority. However duties to children under the Children Act 1989 remain. National Organisations UK Border Agency Department for Works and Pensions International Organisation for Migration NRPF Network British Red Cross PROCEDURE Referral and assessment Referrals are most likely to be made to Referral and Assessment service, although the situation of NRTPF could arise on existing allocated cases. Draft NoRecourseToPublicFunds LBS v1 AK Page 5 of 11

6 An Initial Assessment should be completed within 15 working days, although some of the work involved may need to be completed outside of the Single assessment. If there are childcare or child protection concerns, over and above the situation of NRTPF, then these should take priority and follow the standard process, as appropriate, e.g. S47 enquiry, Single Assessment within 45 days maximum. The Assessment work relating to NRTPF needs to include the following: Is LBS the relevant local authority? Are the family destitute? What evidence can be provided that they are destitute? What is the family s immigration status? What evidence can be provided? Does the family fall within an excluded group? Do Human Rights issues need to be considered? Is the parent subject to a spousal visa and is fleeing domestic violence? Can any extended family/friends/charity help the family? Should the family be considering returning to their country of origin? There is an expectation that the parent(s) with NRTPF will be making every effort themselves to resolve their situation. The expectation is also that they will comply with any requests for evidence of their situation, or actions to try to resolve their situation. If the recommendation from the assessment is that the family have NRTPF and should receive support for their child(ren) under S17 then this must be agreed with the Head of Service (Safeguarding), together with the type & level of support and actions required. (Financial support will be at subsistence level only or may take the form of assistance with a return to country of origin.) Where a parent subject to a spousal visa is fleeing domestic violence then LBS may agree to pay for very short-term support, whilst they make an application for 3 months limited leave to remain and then an application to the DWP for benefits. All payments to NRTPF families must be coded to the NRTPF budget 0316 CYPLD Safeguarding No Recourse to Public Funds. NRTPF families must be identified as such on Frameworki If parent with NRTPF has community care needs of their own then a separate referral should be made for them to Adult Social Services. Longer term support Draft NoRecourseToPublicFunds LBS v1 AK Page 6 of 11

7 If the NRTPF situation is not likely to be resolved within a maximum of 55 working days then the case will be transferred to the Sutton Family Centre. An early warning will be given at the Transfer meeting, and transferred at the next appropriate Transfer meeting. NRTPF families are then allocated to a designated Assistant Social Worker (unless there are high level child in need or child protection concerns). The Asst SW will assist the family in resolving their NRTPF situation and administer any agreed payments. Review of NRTPF NRTPF families will be reviewed on a 6 weekly basis by the relevant Assistant Team Manager. This is to ensure that they are still entitled to support and are taking the required actions to progress their situation. Where there are concerns about non co-operation or lack of progress the case will be escalated to the Team Manager and consideration given to taking advice from the Legal Team. The Assistant Team Manager will also note any trends or changes for NRTPF applicants in general. The Head of Service for the Sutton Family Centre will audit open NRTPF cases on a six monthly basis. Financial support There is a need for consistent funding packages for families who are NRPF. As stipulated in the NRPF Factsheet February The courts have held that a local authority is responsible for deciding what level of services are appropriate to be able to meet a child s needs in order to safeguard and promote their welfare, in line with its duties under section 17 Children Act However, this decision may be challenged if it is irrational, or incompatible with the human rights, or rights under European law, of those affected by the policy. When determining the amounts of subsistence that should be provided, local authorities need to be mindful of their legal duties, what destitution means, relevant case law and the current benefit and asylum support rates. Legal duty Section 17(1) Children Act 1989 states: (1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children s needs. (3 ) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child s welfare. (4A) Draft NoRecourseToPublicFunds LBS v1 AK Page 7 of 11

8 Before determining what (if any) services to provide for a particular child in need in the exercise of functions conferred on them by this section, a local authority shall, so far as is reasonably practicable and consistent with the child s welfare 2 (a) ascertain the child s wishes and feelings regarding the provision of those services; and (b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain. (6)The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or in cash. (10) For the purposes of this Part a child shall be taken to be in need if (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or (c) he is disabled, and family, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living. Section 17(3) requires support to be provided to the family as a whole, where this is in the best interests of the child. Local authorities must formally assess the child s needs, and, although they are not required to meet every assessed need and may take into account their resources in determining which needs are to be met, such a decision must be reached rationally and the local authority must act reasonably - G v Barnet LBC (2003). Definition of destitution There is no definition of destitution under the Children Act However, destitution is defined at section 95(3) Immigration Asylum Act 1999 in relation to the provision of asylum support: a person is destitute if. a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or. b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs. The case of Refugee Action v SSHD [2014] EWHC 1033 (Admin), which examined the way the Home Office had set rates for asylum support under section 95 Immigration Asylum Act 1999, considered essential living needs. The following are, or could be considered to be, essential living needs : Essential household goods such as washing powder, cleaning materials and disinfectant Nappies, formula milk and other special requirements of new mothers, babies and very young children Non-prescription medication The opportunity to maintain interpersonal relationships and a minimum level of participation in social, cultural and religious life Travel by public transport to attend appointments with legal advisors, where this is not covered by legal aid Draft NoRecourseToPublicFunds LBS v1 AK Page 8 of 11

9 Telephone calls to maintain contact with families and legal representatives Writing materials, where necessary, for communication and for the education of children Exceptionally, the Court found that support may be required on a case-bycase basis to cover travel costs to the shops, a GP or appointments with Freedom from Torture for people unable to walk. Books, games and toys for children and childcare for children under three years old were found not to be essential living needs. Note that the Home Office did not increase section 95 asylum support rates in August 2014 following its review, as required by the Court. Principles established in case law The Administrative Court has examined the rationale applied by three local authorities in determining the amounts of subsistence that were paid to meet the needs of children under section 17 Children Act 1989: PO v LB Newham (2014), Mensah v Salford City Council (2014) and C, T, M & U v LB Southwark (2014). Key principles established are: The child(ren) s needs must be assessed in order to determine the provision of subsistence support to families under section 17. It is not unlawful to prescribe standard rates of payment to meet subsistence needs, provided that these rates are determined using a clear rationale. A policy prescribing standard rates to alleviate destitution must allow for exceptions to be made in order to meet additional/arising needs. Lack of guidance as to what is normally appropriate would lead to unjustifiable and unfair differences in the amounts paid to families - PO v Newham. Child benefit is not designed to meet the subsistence needs of children so it is not rational or lawful to set standard rates in line with these amounts - PO v Newham. It is rational for a local authority to have regard to rates set by another public body for the purpose of preventing or alleviating destitution, provided the child's needs are met - Mensah v Salford City Council. Support for refused asylum seekers under section 4 Immigration and Asylum Act 1999 is designed to provide for food and toiletries only, therefore any policy aligning subsistence payments with these rates must allow for additional assistance to be provided in order to meet the child s needs - Mensah v Salford City Council. When it is in the child s best interests for the family to remain together, payments for the parents should be made in addition to those considered appropriate to meet the needs of the children, but are not required to exceed what is necessary to avoid a breach of the parent s human rights- PO v Newham. Failure to make a subsistence rates policy available to those who might be affected by its application is unlawful - PO v Newham. Draft NoRecourseToPublicFunds LBS v1 AK Page 9 of 11

10 Lack of complaint from a family does not mean that the local authority can be satisfied that they are making payments appropriate to meet the children s needs - PO v Newham. Financial Arrangements consistency when allocating S17 payments Weekly Income Support* Section 95 asylum support Single Adult (18-25) Single Adult (25+) Lone parent (18+) Couple (both ) Child (16-18) (52.88)** Child (under ) (52.88)** Additional payments Pregnant mother 3 3 Section 4 asylum support*** Child under Child aged Maternity payment 300 (one off payment) 250 (one off payment) Amounts listed are per person. * Note that a benefit cap of 500 applies to lone parents and couples with children (and includes housing benefit). Universal Credit replaces this and other benefits in some areas. **Child Tax Credits: includes the family element + one child allowance; for each additional child. Rates vary if a child is disabled. Note that families would also receive Child Benefit: for first child; for additional children. ***Pre-payment card that can be used in specified shops to buy food, clothing and toiletries but not alcohol, tobacco, vehicle fuel or store/gift cards. Note that asylum seekers are provided with accommodation inclusive of utilities, whereas people receiving Income Support/Universal Credit would normally be required to pay for these themselves. Sources: Children Act 1989 Immigration and Asylum Act 1999 Draft NoRecourseToPublicFunds LBS v1 AK Page 10 of 11

11 G v Barnet LBC (2003) Refugee Action v SSHD [2014] EWHC 1033 (Admin) Minister s letter to National Asylum Stakeholder Forum (August 2014) PO v London Borough of Newham [2014] EWHC 2561 (Admin) Mensah v Salford City Council & Bello v Salford City Council [2014] EWHC 3537 (Admin) C,T,M & U v London Borough of Southwark [2014] EWHC 3983 (Admin) DWP Benefit and Pension Rates April Child Benefit and Child Tax Credit rates (February 2015) Home Office Asylum Support website information (January 2015) Home Office Asylum support, section 4 policy and process policy guidance (February 2015) Draft NoRecourseToPublicFunds LBS v1 AK Page 11 of 11