Help for children and families who are ineligible for homelessness assistance

Assistance under the Children Act 1989 for children and their families who are not eligible under homelessness legislation.

This content applies to England

Accommodation under section 20 for children in need

Local authority social services departments have a duty to accommodate certain children in need in their area under the Children Act 1989.[1]

Under section 20 of the Children Act 1989 social services must accommodate a child in need who needs accommodation if:[2]

  • there is no person who has parental responsibility for them

  • they are lost or have been abandoned

  • the person who has been caring for them is prevented from providing them with suitable accommodation

Social services must also accommodate a child in need whose welfare is likely to be seriously prejudiced if they do not provide them with accommodation.[3]

There are no restrictions based on immigration status where support is provided directly to a child in need.[4]

Accommodation under section 17 for families with children

Social services have the power under section 17 of the Children Act to provide financial assistance and acommodation to the whole family of the child in need.

This support can be provided to the child's parents or any other family members who were responsible for looking after them, safeguarding, and promoting their welfare.[5]

Assistance under the Children Act 1989 is not classed as public funds. It is available to persons subject to immigration control who are in the UK lawfully but with a requirement not to have recourse to public funds.

People who are excluded from help under section 17

Schedule 3 of the Nationality, Immigration and Asylum Act 2002 prohibits social services providing support under section 17 Children Act 1989 to the following classes of persons:[6]

  • a person or their dependant who has been accepted as a refugee by a European Economic Area (EEA) state (other than the UK)

  • a person who was, but is no longer, an asylum seeker who fails to co-operate with removal directions

  • a person who is unlawfully present in the UK, that is in the UK in breach of immigration laws

  • a failed asylum seeker and family who have failed without reasonable excuse to take reasonable steps to leave the UK voluntarily or places themselves in a position to leave voluntarily

Case law has confirmed that  people who have not been temporarily admitted to the UK, for example people who have applied for asylum in-country and have been refused asylum, would be classed as unlawfully present even if they have not been issued with removal directions.[7]

These restrictions do not apply where:

  • support is provided directly to a child in need[8]

  • it is necessary to provide support in order to avoid a breach of a right under the European Convention on Human Rights[9]

EEA nationals after 31 December 2020

From 1 January 2021, EEA nationals are no longer listed as ineligible for support under the Children Act 1989.[10] They would be excluded only if they fell into one of the categories of excluded persons, for example if they were in the UK in breach of immigration laws.

Eligible EEA nationals can make a homeless application to the local authority under Part 7 of the Housing Act 1996.

Child in need assessments

Before accommodation is provided, social services must carry out a child in need assessment. The initial threshold for undertaking the assessment is low.

The child in need assessment is likely to be carried out when a family requests assistance because they do not have adequate accommodation or sufficient income to meet their living needs, for example because they are unable to access benefits or employment, or when the child’s circumstances indicate that this may be the case.

The No Recourse to Public Funds (NRPF) network has published a practice guidance for local authorities on assessing and supporting children and families 'with no recourse to public funds' under section 17 of the Children Act 1989.

Example of factors that require a child in need assessment include:

  • lack of adequate food, warmth, shelter or essential clothing

  • family’s limited financial resources leading to increased vulnerability of the children to criminal activity, for example illegal working

  • the parent's inability to provide for material needs, impacting negatively on the child

Children of destitute parents

A child living with a parent who is destitute is a child in need.

The parent must give as much information as possible to assist social services. Where social services have made thorough enquiries into the financial circumstances of the family and the parent or parents have failed to provide sufficient information about why previous sources of financial support have dried up, it is open to social services to find that a child is not destitute and thus not a child in need.[11]

Social services must act fairly. If social services draw adverse inferences from gaps in evidence without putting concerns about lack of information to the applicant, it may amount to procedural unfairness.[12] Other forms of procedural unfairness include the local authority's failure to:[13]

  • properly evaluate the substantial evidence of destitution provided by the applicants, including statements from friends and family explaining why they could no longer provide support, and evidence of homelessness provided by the children's school

  • identify why the evidence provided was disbelieved

  • review its initial assessment with a 'fair and open mind'

  • take into account material which contradicts its initial findings

Social services can take into account inconsistencies in an applicant's account of their situation. However, these must give a 'reasonable basis' to infer that they are destitute: something more than suspicion or feeling is required.[14]

Impact of right to rent legislation on a child in need assessment

In one case, the High Court held that a child in need assessment was unlawful because it failed to take into account that a parent who had overstayed her visa was unlikely to be able lawfully to rent accommodation for herself and her two children because of the right to rent provisions. The court rejected the authority's suggestion that the applicant could avoid the right to rent provisions by paying for hotel accommodation, explaining that the right to rent restrictions would apply to a person living in a hotel as a home. The alternative of a series of short-term hotel lets would be disruptive to the children and detrimental to their welfare.[15]

Where a person has stayed with friends or family before having children, the local authority should, as part of the child in need assessment, check that accommodation which was available to a single person would also be available in the 'very different situation' in which the applicant has children.[16] Even where a person is applying for a permission to rent under Home Office discretion, a local authority should take into account the fact that permission may be refused.[17]

If a person is staying with friends and family rent free, the accommodation would be exempt from the right to rent provisions.

Accommodation provided as a consequence of any duty or power placed on a local authority, eg under sections 17 or 20 of the Children Act 1989, is exempt from right to rent restrictions.

Offering to take a child into care

It may be a breach of the family's rights under Article 8 of the European Convention on Human Rights (ECHR) to offer accommodation only to the child under section 20 of the Children Act 1989 where a child is in need of accommodation as a result of their primary carers being prevented from accessing benefits or employment due to their immigration status.

Social services help for Zambrano carers

Zambrano carers are primary carers of British citizens, for example parents of British children, who derive their rights from retained EU law.

The Court of Appeal held that a Zambrano carer should not be left without the necessary resources and if they do not have the means to support themselves and their child, they should be assisted by social services.[18]

If social services refuse to provide assistance, it may be possible to challenge their decision by way of judicial review and legal aid may be available.

The government advice is that Zambrano carers who wish to continue living in the UK after 30 June 2021 should apply to the EU Settlement Scheme, because a derivative residence card obtained to prove a right to reside under EU law will not be valid after 30 June 2021.

People seeking advice on how to apply for an immigration status should be advised to contact a solicitor or a certified immigration adviser.

Level of assistance to ineligible migrants

It is for the local authority to set the rules and adopt a policy about the level of assistance can be provided under section 17 to destitute migrant homeless families. Such rules can be challenged by judicial review on public law grounds.

The level of assistance must not be fixed according to the rates payable under another statutory scheme or provision, for example, child benefit rates or payments to failed asylum seekers under section 4 Immigration Act 1999.  Such rates or payments can be used as a reference when determining the level of assistance that should be provided to an individual child in need and their family.[19]

The No Recourse to Public Funds network (NRPF) has published practice guidance for local authorities to refer to when assessing and supporting people with no recourse to public funds. This guidance includes a factsheet on subsistence support for families under section 17 of the Children Act 1989.

Cooperation between housing departments and social services in cases involving children

If a homeless applicant has a child under the age of 18 normally residing with them, and the housing authority has reason to believe that the applicant may be ineligible for assistance, it is under a duty to co-operate with the social services' authority or department. This applies whether they are unitary authorities or not. 

Unless the authority considers that there is a risk of harm, it should seek the applicant's consent to make a referral to the social services department, which should then assess whether the child is a child in need. The housing authority must in turn offer advice and assistance as is reasonable when requested by social services. This does not amount to a duty to provide accommodation.[20]

Duties to care leavers

Social services have a duty under the Children Act 1989 to assist certain care leavers who are former relevant children to the extent that their welfare requires it. This includes the power to provide accommodation.

A former relevant child is a young person aged 18 or over who has spent at least:[21]

  • 13 weeks in care after they turned 14, and

  • one day of the 13 weeks was spent in care when they were 16 or 17

Where the former relevant child is an asylum seeker or a former asylum seeker, the local authority cannot pass the duty to assist them to the Home Office UKVI. UKVI is not required to provide accommodation if the asylum seeker is entitled to accommodation under some other provision. When assessing what assistance should be provided, social services cannot take into account the possibility of UKVI support.[22]

Support for families claiming asylum and unaccompanied children

Even if an asylum-seeking family includes a disabled child in need, as defined by section 17 of the Children Act 1989, UKVI remains responsible for providing accommodation and support that meets their needs, including adapted accommodation and a special diet.[23] The support and accommodation provided by UKVI must be adequate for the needs of the family.

Social services are responsible for supporting an unaccompanied person under 18 who has claimed asylum.

UKVI duty to safeguard the welfare of children

Section 55 of the Borders, Citizenship and Immigration Act 2009 places UK Visas and Immigration (UKVI) under a duty to safeguard and promote the welfare of children when discharging their functions in relation to immigration matters. More information can be found in the relevant statutory guidance.

In one case, the High Court held that where the ‘no recourse to public funds' (NRPF) condition resulted in a household with children being deprived of access to state support, the NRPF condition did not comply with the section 55 duty to safeguard and promote the welfare of children.[24]

People subject to the NRPF condition may require specialist immigration advice to establish what options of accessing support are available to them, depending on their immigration status and personal circumstances. Immigration advice can be provided only by a regulated immigration adviser.

Immigration advice

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.[25]

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

Last updated: 12 April 2022

Footnotes

  • [1]

    s.21(1) Children Act 1989.

  • [2]

    s.20(1) Children Act 1989.

  • [3]

    s.20(3) Children Act 1989.

  • [4]

    para 2(1) Sch 3 Nationality, Immigration and Asylum Act 2002.

  • [5]

    R (on the application of OA and Others) v Bexley LBC [2020] EWHC 1107 (Admin).

  • [6]

    s.54 and sch. 3 Nationality, Immigration and Asylum Act 2002, as amended by reg 13(4) The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

  • [7]

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

  • [8]

    para 2(1) Sch 3 Nationality, Immigration and Asylum Act 2002.

  • [9]

    para 3 Sch 3 Nationality, Immigration and Asylum Act 2002, as amended by reg 13(4) The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309; R(MN) v Hackney LBC [2013] EWHC 1205; R (on the application of F) v Barking and Dagenham LBC [2015] EWHC 2838 (Admin).

  • [10]

    reg 13(4) The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309.

  • [11]

    R (on the application of O) v Lambeth LBC [2016] EWHC 937 (Admin); R (on the application of MN) v Hackney LBC [2013] EWHC 1205 (Admin).

  • [12]

    R (on the application of S and J) v Haringey LBC [2016] EWHC 2692 (Admin).

  • [13]

    R (on the application of OK and Ors) v Barking & Dagenham LBC [2017] EWHC 2092 (Admin).

  • [14]

    R (on the application of AA) v Bexley LBC [2019] EWHC 130 (Admin).

  • [15]

    R (on the application of U and U) v Milton Keynes BC [2017] EWHC 3050 (Admin).

  • [16]

    R (on the application of AA) v Bexley LBC [2019] EWHC 130 (Admin).

  • [17]

    R (on the application of AA) v Bexley LBC [2019] EWHC 130 (Admin).

  • [18]

    Sanneh v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49.

  • [19]

    R (on the application of PO, KO, RO) v Newham LBC [2014] EWHC 2561 (Admin); Mensah v Salford CC [2014] EWHC 3537 (Admin);R (on the application of (1) C (2) T (3) M (4) U) v Southwark LBC & Coram Children's Legal Centre (Intervener) [2016] EWCA Civ 707.

  • [20]

    para 1.31 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [21]

    s.23C Children Act 1989 as amended.

  • [22]

    s.23C(4)(c) Children Act 1989; R (on the application of O) v London Borough of Barking and Dagenham [2010] EWCA Civ 1101.

  • [23]

    R (on the application of A) v NASS and Another [2003] EWCA Civ 1473.

  • [24]

    ST & Anor v Secretary of State for the Home Department [2021] EWHC 1085 (Admin).

  • [25]

    see, for example R (on the application of Hyam) v Secretary of State for the Home Department [2021] EWHC 1194 (Admin).