Help for adults from abroad who are ineligible for homelessness assistance

In R (on the application of Ncube) v Brighton and Hove City Council the High Court held that during the coronavirus pandemic local authorities can lawfully provide accommodation to people from abroad with no recourse to public funds under section 138 of the Local Government Act 1972 and section 2B of the National Health Service Act 2006.[1]

The Local Government Act gives powers to councils to provide accommodation where there is an emergency involving danger to life. The High Court held that the Covid-19 pandemic meets the definition of an emergency under the Act.

The National Health Service Act gives a general power to councils to take steps to improve the public health of people who live in their area. The powers under the Act are not specific to an emergency and accommodation could be lawfully provided in a range of circumstances.

Under the Care Act 2014 social services have:[2]

• a duty to meet an adult's 'eligible' care and support needs

• a power to meet ineligible needs

Needs can be met in a number of ways, including by providing accommodation.[3]

The general position is that for a duty to provide accommodation under the Care Act 2014 to arise, the person must have been assessed as in need of care and support that cannot be met without providing them with somewhere to live. A stand alone need for accommodation is not a need for 'care and support' within the Act.

Where the local authority is providing services under the Care Act, there may be a duty to provide accommodation if the services are classed as accommodation-related.[4]

Services are accommodation-related if they:

• are normally provided in the home, for example domestic tasks, or checking that the home environment is safe

• would be 'effectively useless' if the person was homeless

In most cases the local authority can decide whether services are accommodation-related.

For adult people from abroad, access to care and support services, including accommodation, is restricted both through the Care Act's eligibility criteria and through additional restrictions based on immigration status.

'Destitution plus' test for people from abroad

The Care Act 2014 excludes persons subject to immigration control who are ineligible for benefits under section 115 of the Immigration and Asylum Act 1999 from assistance under the Care Act where their need for care and support has arisen solely as a result of destitution or its effects.[5]

This is commonly known as the 'destitution plus' test, and it affects people who:[6]

• require leave to remain but do not have it

• have leave to remain that is subject to a no recourse to public funds requirement

• has leave to remain given as the result of a maintenance undertaking

A person subject to immigration control qualifies for assistance under the Care Act 2014 if their need for care and support is increased or made materially more acute by some circumstance other than a 'mere lack of accommodation and funds'.[7]

Care Act support for asylum seekers

Support under the Care Act is not be available if the person is entitled to assistance under different legislation. The only exception is accommodation provided by the Home Office to asylum seekers under the Immigration and Asylum Act 1999: if an asylum seeker meets the criteria for assistance from social services under the Care Act, social services have a duty to provide accommodation and support even if the asylum seeker is housed by the Home Office.[8]

If social services are responsible for providing Care Act support for an adult asylum seeker, UK Visas and Immigration (UKVI) are financially responsible for any other family members such as dependent children.[9]

In one case, the High Court quashed the council's care and support plan in respect of a vulnerable asylum seeker because the council had not adequately considered whether it might be under a duty to provide accommodation. There was also no evidence that the council had asked itself whether, even if services could have been provided outside a home environment, they would be 'effectively useless' if the client was sleeping on the street.[10]

Asylum seekers may be entitled to support from the Home Office where their needs do not meet the eligibility criteria under the Care Act.

Schedule 3 of the Nationality, Immigration and Asylum Act 2002 excludes certain people from abroad from accessing care and support under the Care Act 2014.[11]

Schedule 3 exclusions do not apply to children.

The local authority can provide support under the Care Act if failure to do so would result in a breach of human rights.

Human rights 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 (EHCR), provision of a service is not prohibited under schedule 3 to the extent that it is necessary to avoid such breaches.[12]

When assessing whether a breach of human rights may occur, the local authority must look at the effects of not providing support.

Article 3 of EHCR is the right not to be subjected to torture, inhuman or degrading treatment or punishment. The threshold at which a failure to provide support will breach this right is high. It requires an imminent prospect of serious suffering caused or materially aggravated by the denial of food, shelter or the most basic necessities of life.[13]

As long as a human rights claim is not 'manifestly unfounded', a local authority should consider its impact on any potential duties it may have.[14]

Examples of human rights and treaty exceptions

In a case concerning a terminally ill EU national, the courts held that the local authority's refusal to support him, on the basis that he could return to his country of origin and receive support there, breached his human rights under article 3 and under article 8 (right to respect for private and family life) of the ECHR.[15]

The local authority in the area where the person is ordinarily resident is responsible for providing care and support.

The local authority has the power to provide care and support as if the person was resident in their area if the person is:[16]

• in the area of a local authority and has no settled residence

• not ordinarily resident in the local authority area but is in urgent need of care and support

For certain types of accommodation under the Care Act 2014, a person is considered to be ordinarily resident in the area in which they were ordinarily resident immediately before support was provided.[17]

Guidance and regulations provide further detail on ordinary residence, including the procedure where there are disputes.

The Localism Act 2011 gives local authorities a 'general power of competence' to do anything for the benefit of residents or those present in its area.[18]

The power under the Localism Act could be used, for example, to fund travel back to a person's country of origin.[19] It cannot be used to assist persons who are excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, unless a failure to do so would result in a breach of their human rights.

Before the UK left the EU on 1 January 2021, the powers under Localism Act could be also used to assist people excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002 if a failure to do so would result in a breach of their rights under EU law.[20]

The power to provide assistance under the Localism Act 2011 becomes a duty where:[21]

• the person's human rights could be breached

• there is no other statutory basis for providing assistance

Local authorities must not give assistance under the Localism Act where they are prohibited from providing it by other legislation.[22]

In a case where an ineligible EEA national did not qualify for accommodation under the Care Act, the High Court held that the local authority could not provide him with housing assistance under the Localism Act because section 185 of the Housing Act 1996 prohibits the provision of accommodation to a person from abroad who is ineligible for housing assistance. In this case, the applicant had no right to reside under EU law and therefore was statutorily excluded.[23] This judgment casts doubt on another case in which a local authority was required to provide accommodation under the Localism Act to an EEA national who had no right to reside in order to avoid a breach of article 3.[24]

An ineligible person from abroad who has been compulsorily detained under section 3 of the Mental Health Act 1983 is entitled to aftercare services, including subsistence and support.[25]

Aftercare services can include specialised accommodation, but only where it meets needs directly arising out the ex-patient's condition. Ordinary accommodation cannot be provided under this provision.[26] The duty will fall on the local authority in the area where the person resided before their detention, not the authority where the hospital is situated.[27]

There are no exclusions based on immigration status and no charges can be made.[28]

A person leaving a psychiatric institution who was not compulsorily detained can argue that they qualified for community care assistance, as the need for care and attention would not arise solely through destitution.

From 1 December 2020, in certain circumstances the Home Office may refuse permission to stay in the UK or cancel permission already given if a non-British national is sleeping rough.[29]

On 6 April 2021 the policy was amended to clarify that 'permission may only be refused or cancelled where a person has repeatedly refused suitable offers of support and engaged in persistent anti-social behaviour'. For more information, see the Home Office Grounds for refusal: rough sleeping guidance.

The policy affects:

• rough sleepers who are in the UK on work, student, visitor or UK ancestry visa

• some victims of human trafficking and slavery, depending what type of status they have been granted by the Home Office

• EU/EEA nationals who did not apply to the EU Settlement Scheme before 30 June 2021

• EU/EEA nationals who arrive in the UK after 31 December 2020

The rules do not apply to:[30]

• most asylum seekers and refugees

• people with indefinite leave to remain (also known as settlement)

• EU/EEA nationals and their family members holding or applying for settled or pre-settled status under the EU Settlement Scheme

• family members applying under Appendix FM

• those applying to stay in the UK under Article 8 of the European Convention on Human Rights

• former members of the UK Armed Forces and their family members.

Rough sleeping is defined as ‘sleeping, or bedding down, in the open air (for example on the street or in doorways) or in buildings or other places not designed for habitation (for example sheds, car parks or stations)’.[31]

People from abroad who are not eligible for homelessness assistance from local authorities may have other options of securing accommodation linked to their immigration status.[32]

Immigration advice is regulated.

A person should contact a regulated immigration adviser if:

• they are in need of immigration advice

• they are worried about breaching the immigration rules

• their immigration status may be affected by sleeping rough

• they wish to identify whether they are entitled to support from the Home Office