Supporting families with no recourse to public funds REPLACES/AMENDS:- Document Title: Reference: Version: Dated: ORIGINATING SECTION/TEAM: AUTHOR: POLICY, PARTICIPATION & SERVICE DEVELOPMENT Deborah Dempsey CONTACT LEAD OFFICER: ADDRESS: Ila Modi/Patricia Denney CHILDREN, SCHOOLS & FAMILIES Policy, Participation & Service Development Unit 6 7 Crowndale Centre 218 Eversholt St London NW1 1BD TEL: 020 7974 6408
1. Introduction This policy covers cases where FSSW are approached by families who: are subject to immigration controls, and have no right to work in the UK, and have no recourse to public funds, and who request support. Public funds include welfare benefits, public housing or asylum support from the United Kingdom Border Agency (UKBA). Generally, families in this situation who have dependent children may approach their local authority for support under section 17 of the Children Act 1989. A dependent child is defined as a member of the family or a child who has been living with the family since birth or for at least 6 of the previous 12 months. However, some groups are barred from receiving this support due to their immigration status and must be subject of a further assessment before any support can be provided. Providing section 17 support to any family who is barred from receiving such support is an offence under immigration laws. 2. Establishing eligibility for support To qualify for support under section 17, families must be: in the local area assessed as destitute not barred from claiming support due to their immigration status. 2.1 Is the family in the local area? This means: resident in Camden or not resident in any borough (including any location they were sent to as asylum seekers) and presenting in Camden as homeless and in urgent need or resident in another borough but presenting in Camden as homeless and in urgent need; however, this may be subject to negotiation with the home borough, but should not delay provision of services. CIN 19: Version 1: Implementation date: November 2010 Page 2 of 6
For the purposes of supporting children under section 17, the responsible borough will be the borough where the child lived when the need arose unless they are looked after or receiving services other than subsistence from another authority. 2.2 Is the family is destitute? A family are classed as destitute if they do not have adequate accommodation or they are unable to meet essential living needs. Asylum-seeking families whose claim is still being processed will be eligible for support for their basic accommodation and needs from the UKBA and should not be supported under section 17 unless assessment shows that the child has additional needs requiring extra support. Examples of additional needs are: Initial assessment shows the child has emotional or behavioural problems, disability, a caring role or where there are child protection concerns and section 17 support is needed to address these needs. Although FSSW cannot support adults under the National Assistance Act, the Act can be used to provide extra support to expectant and nursing mothers during their pregnancy and for the first few weeks after the child s birth. In the case of domestic violence, families can be supported in order to prevent harm or violence, including provision of new accommodation that allows them to leave a violent partner. It must be demonstrated that the domestic violence impacts on the child to the extent that the family must be supported to live separately. Where families approach FSSW because they have no-where to live and no money for food, they must prove that they have no other means of support before FSSW can provide section 17. Before agreeing to any support under section 17, social workers should look at possible support for the family from: friends and family voluntary or community sector savings a sponsor eligibility for welfare benefits. To establish whether the family are destitute, social workers can make enquiries and request evidence such as bank statements, notices to quit property and check with the Inland Revenue to see whether the person is working. If anyone in the family has a right to work, the family should be encouraged to become self-supporting. CIN 19: Version 1: Implementation date: November 2010 Page 3 of 6
2.3 Does the family s immigration status bar them from claiming section 17 support? It is essential to establish the family s immigration status to ensure their eligibility for support. To do this, social workers should ask to see the applicant s passport and any Home Office documentation, and where necessary check with the Home Office to establish their immigration status. Evidence of the applicant s current or last address should also be requested. If the applicant has not made an application for asylum, or has overstayed on a visa, they should be advised to contact a solicitor for advice. Please note that social workers must contact the Home Office of any person whom they suspect is in the UK illegally or where a failed asylum seeker requests support. The following groups are not eligible for support under section 17: a person granted refugee status in another EEA state and their dependents an EEA national and their dependents a failed asylum seeker who has failed to comply with removal directions and their dependents a person who is a failed asylum seeker with dependent children who fails to take reasonable steps to leave the UK a person unlawfully present in the UK (normally someone who has overstayed on a visa). EEA states are: Austria; Belgium; Denmark; Finland; France; Germany; Greece; Ireland; Italy; Luxembourg; Netherlands; Portugal; Spain; Sweden; UK; Cyprus; Czech Republic; Estonia; Hungary; Latvia; Lithuania; Malta; Poland; Slovakia; Slovenia, Bulgaria, Romania If applicants are ineligible for support because they fall into one of these groups, they may still receive support from Camden if it would be a breach of their human rights should support not be provided. This will involve carrying out a human rights assessment. It should also be remembered that any child who is in need, regardless of their immigration status, is entitled to support under section 17; even if the family fail on a human rights assessment, it is possible to support them in the short term in order to meet the child s basic need for food and shelter. 3. Human rights assessment It is strongly recommended that social workers and managers seek legal advice when undertaking this assessment. CIN 19: Version 1: Implementation date: November 2010 Page 4 of 6
The purpose of the human rights assessment is to establish whether the family s human rights will be breached as a result of not being provided with section 17 support. The first consideration should be in helping families to return to their country of origin and providing basic support in the short-term whilst this can be arranged. When deciding on whether a human rights breach may occur if support is not provided, social workers should consider the following factors and incorporate these into the assessment of the child. family composition and immigration status background history of the family s stay in the UK, including access to universal services and social care support family s financial circumstances and housing issues reasons why the family feel they cannot return to their country of origin family links and support networks in the UK would there be a breach of human rights if the family are refused support and must return to their country of origin? 3.1 Families who are residents of or have refugee status in an EEA state Families who are normally resident or have refugee status in an EEA state should be encouraged to return home and Camden has to power to provide tickets to facilitate this and provide short term support whilst this is being arranged. The assessment should look at whether withholding support and instead helping them to return would breach human rights. EEA nationals may be eligible to work and/or become self-supporting by any other means; this should also be explored in any assessment. EEA nationals may also choose to exercise their rights under the European treaty (ie: freedom of movement, right to reside) and these rights must be taken into consideration when assessing whether refusing section 17 support may breach these rights. 3.2 Failed asylum seekers and visa overstayers Some failed asylum seekers may be able to receive continued support from the UKBA pending resolution of any appeals or compliance with removal directions. In some circumstances, the UKBA will continue to support failed asylum seekers in order to avoid hardship where the family are either making arrangements to return home or are temporarily unable to travel. In the first instance, social workers should check with the UKBA to see if the family can access this support (known as section 4 hard cases support). CIN 19: Version 1: Implementation date: November 2010 Page 5 of 6
Otherwise, social workers should assess whether withholding support would be a human rights breach and whether helping a voluntary return would be the best way of resolving the family s situation. Visa overstayers may decide to apply for leave to remain and should be advised to seek legal advice. CIN 19: Version 1: Implementation date: November 2010 Page 6 of 6