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Legislation restricting community care help

This content applies to England

Restrictions on access to care and support, including accommodation, that may be provided under the Care Act 2014 and/or the Children Act 1989.

'Destitution plus' test

A 'person subject to immigration control' as defined by section 115 of the Immigration and Asylum Act 1999 is not eligible for care and support (including accommodation) under the the Care Act 2014 where her/his need for care and support has arisen solely because of destitution (or because of the physical effects or anticipated physical effects of destitution).[1] This is known as the 'destitution plus' test, and replicates the test previously found in section 21(1A) of the National Assistance Act 1948.

Section 115 of the Immigration and Asylum Act affects people who are not nationals of an EEA state who:

  • require leave to enter or remain but do not have it
  • have a 'no recourse to public funds' condition attached to their leave to remain
  • have leave to remain as the result of a maintenance undertaking.

See the page Access to housing with care and support for more information on care and support under the Care Act.

The key word in the exclusion of persons subject to immigration control from assistance through the destitution plus test is 'solely'. It is only where the sole or only need for the assistance has arisen because of destitution that a person subject to immigration control is excluded. This means that destitution can be one of a number of reasons that a person subject to immigration control seeks assistance under the Care Act.[2] See the page Help for ineligible adult migrants for more information.

National Health Service (NHS) care is not a 'public fund' for the purposes of section 115 of the Immigration Act. See below for further information on obtaining NHS care.

Ineligible under the Nationality, Immigration and Asylum Act 2002

If an applicant is not prevented from being eligible as a result of the Immigration and Asylum Act 1999, s/he may nonetheless be ineligible as a result of the exclusions contained in Schedule 3 to the Nationality, Immigration and Asylum Act 2002.

Legislative provisions affected

Schedule 3 provides that adults in the five categories below are ineligible for support and assistance under:

  • sections 17, 23C, 24A and 24B of the Children Act 1989
  • part 1 of the Care Act 2014 (but a local authority is not restricted from carrying out an assessment, meeting urgent needs pending assessment, providing information and advice, or to general prevention measures where these may apply to a person in a category below who is otherwise excluded from support. See Practice Guidance for Local Authorities (England) which has been updated to clarify this point[3])
  • section 1 of the Localism Act 2011 (local authority's general power of competence)
  • section 188(3) and section 204 of the Housing Act 1996 (interim accommodation pending the outcome of a section 202 review and accommodation pending the outcome of a section 204 county court appeal).

Categories of persons excluded from support

Five categories of persons are excluded from support as a result of Schedule 3:

  • people granted refugee status by another EU/EEA state and their dependants
  • EU/EEA nationals
  • failed asylum seekers and their dependents who do not co-operate with removal directions
  • people in the UK in breach of immigration laws who are not asylum seekers. Case law has confirmed that this includes those who have not been temporarily admitted to the UK (ie those who have applied for asylum in-country) and whose claims for asylum have been refused, even if they have not been issued with removal directions[4]
  • failed asylum seekers with dependent children who are not taking reasonable steps to leave the UK or to put themselves in a position to leave the UK.

A person is in the UK in breach of the immigration laws if s/he:

  • is present in the UK, and
  • does not have a right of abode
  • does not have valid leave to enter or remain
  • is not entitled to be in the UK without leave as a EU/EEA national
  • is not exempted from the need to have leave.

Persons subject to immigration control with valid leave but with a requirement not to have recourse to public funds are not excluded in respect of Children Act 1989 and services under the Care Act 2014. These services are not within the definition of 'public funds', and a person subject to immigration control who is lawfully in the UK is not in the list of persons excluded from obtaining assistance, subject to the 'destitution plus' test (see above).

Human rights and European Treaty exceptions

Where it is necessary to provide a service or support to avoid a breach of a right under the European Convention on Human Rights or a EU law right, provision of a service is not prohibited to the extent that it is necessary to avoid such breaches.[5]

Where a failed asylum-seeker or other ineligible migrant with care and support needs has a reasonable fresh asylum or European Convention on Human Rights claim, s/he is eligible for care and support under the Care Act 2014 from the local authority. However, the local authority may examine the fresh claim to check that it is not simply repeating the previous claim or lacking any merit. In one case, the court held that where there is an outstanding application with the Home Office on the basis of Article 8 rights, the local authority should have done no more than to ask itself whether the application was manifestly unfounded.[6] If the local authority was not in a position to determine whether an outstanding application was manifestly unfounded, it would have to consider whether there would be a breach of Article 3 rights if the claimant was not supported.

When assessing whether there is a breach (and so a duty to provide support), the local authority will have to look at the effects of not providing support.[7]

See Human rights challenges for details of human and European Treaty rights.

Can an applicant be returned to their country of origin?

Where a local authority is considering whether it is necessary to provide support in order to avoid a breach of human or European Treaty rights, it may consider offering to make travel arrangements under the 'Travel Regulations' 2002[8] to return certain Schedule 3 applicants to their country of origin instead.[9] This power applies to EEA nationals and their dependants, and to EEA refugees and their dependants. For these, accommodation pending travel may be provided where the applicant has dependent children. The authority may also provide accommodation where a person with a dependent child is in the UK in breach of immigration law, so long as they are complying with removal directions.

NHS services

NHS care is not a 'public fund' for the purposes of section 115 of the Immigration Act 1999, however, NHS hospital care is subject to charging provisions.[10] It is the duty of NHS bodies and/or the local authority concerned to establish whether a person is an overseas visitor who is liable to pay for hospital care, and if so, must recover those charges. A person who is ordinarily resident in the UK must not be charged for NHS hospital services. A national of a non-EEA country will only be 'ordinarily resident' if s/he has indefinite leave to remain.[11] The charging regime for hospital care is complex, and there are a large number of exemptions, including non-EEA nationals who have paid a 'health surcharge' at the point when they applied for a visa to enter the UK.[12]

General Practitioners (GPs) have the discretion register overseas visitors as their patient, either fully or as a temporary resident. Registration must not be refused on the grounds of race, gender, class, age, religion, sexual orientation, appearance, diversity or medical condition. GPs must provide urgent treatment free of charge, even to a person who is not registered.

The Department of Health's Guidance on overseas visitors hospital charging regulations can be found on Gov.uk.

Find details of local authorities on Gov.uk.

Wales

The legislative references on this page are correct with regard to England; for the law in Wales, see Help for ineligible migrants in Wales or visit Shelter Cymru.

[1] s.21 Care Act 2014.

[2] R v Wandsworth LBC ex parte O [2000] 1 WLR 2539; [2000] 3 CCLR 237.

[3] Clarification from the Home Office and Department of Health to No Recourse to Public Funds (NRPF) Network by email 29 July 2015.

[4] R (on the application of M) v Slough BC [2006] EWCA Civ 655.

[5] R (on the application of (1) AW (2) A (3) Y) v (1) Croydon LBC (2) Hackney LBC and Secretary of State for the Home Department (Interested Party) [2007] EWCA Civ 266; R (on the application of De Almeida) v Kensington and Chelsea RLBC [2012] EWHC 1082 (Admin).

[6] Binomugisha v Southwark LBC [2006] EWHC 2254.

[7] R (on the application of Adam, Limbuela and Tesema) v Secretary of State for the Home Department [2005] UKHL 66.

[8] Withholding and Withdrawing of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 SI 2002/3078.

[9] paras 8,9 and 10 Sch.3 Nationality, Immigration and Asylum Act 2002.

[10] s.175 National Health Service Act 2006.

[11] s.39 Immigration Act 2014.

[12] Immigration (Health Charge) Order 2015 SI 2015/792.

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