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

Covid-19 support for ineligible people from abroad

In a letter dated 26 March 2020, the Minister for Local Government and Homelessness stated that one of the principles local authorities should adopt during the pandemic is to use alternative powers and funding to assist people with no recourse to public funds who require shelter and other forms of support.

On 28 May 2020, the Minister confirmed that the 'no recourse to public funds' (NRPF) condition continues to apply and advised local authorities to use own judgment when deciding what support can be lawfully provided to people with NRPF.

The charity No Recourse to Public Funds Network has information on options available to people with NRPF who have been affected by the coronavirus pandemic, including access to the NHS for treatment related to Covid-19 and an overview of benefits which may be available to people with NRPF, because they are not classed as public funds.

People who need advice on how the pandemic has affected their immigration status should contact the Home Office’s Coronavirus Immigration Help Centre, a solicitor, or a certified immigration adviser.

Accommodation for children and families under the Children Act 1989

Under section 17 of the Children Act 1989 social services may provide the whole family of a child in need with accommodation and financial assistance.[1] For example, social services may provide money for a deposit or rent in advance to help the family secure private rented accommodation.

There may be restrictions on the provision of this support to people from abroad.

Child in need assessment

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.[2]

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.[3] Other forms of procedural unfairness include the local authority's failure to:[4]

  • 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.[5]

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.[6]

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.[7] 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.[8]

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.

People who are ineligible for support under the Children Act

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:[9]

  • 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.[10]

These restrictions do not apply where:

  • support is provided directly to a child in need[11]

  • it is necessary to provide support in order to avoid a breach of a right under the European Convention on Human Rights[12]

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.[13] 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.

Support for asylum-seeking families with 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.[14] The support and accommodation provided by UKVI must be adequate for the needs of the family.

Support for unaccompanied asylum-seeking children

Under the Children Act 1989, social services are responsible for asylum applicants below the age of 18 who:

  • arrive in the UK unaccompanied

  • do not have adult close family members already in the UK whom they could join

Under statutory guidance, local authorities must conduct a comprehensive assessment of a child's needs and put into place special provision to 'support dialogue' with these children during assessment. [15] The assessment must, where applicable, consider the child's needs resulting from them being the victim of human trafficking or being an unaccompanied asylum seeker child.[16] The assistance may involve the provision of food, accommodation, foster carers, leisure, language assistance and trauma counselling.

An asylum-seeking child who reaches the age of 18 should be accommodated by UKVI under the provisions for asylum seekers unless they:

  • are a former relevant child

  • have an eligible need for care and support which is not solely caused by being destitute 

If one of the above applies, local authority social services would be responsible for providing support under either the Children Act 1989 or the Care Act 2014

Responsible authority

Unaccompanied asylum-seeking children are the responsibility of the local authority in the area where they are physically present.

It is possible for more than one authority to be responsible at the same time if a child has a link to more than one area, for example, because they attend school in a different area than where they live.[17]

Dispersal

A local authority may ask another authority to take over its duties towards an unaccompanied asylum-seeking child. The 'transfer of responsibility' provisions in the Immigration Act 2016 are designed to provide a more equitable distribution of responsibility throughout English local authorities. Under these provisions, a local authority (the 'first authority') can request another local authority (the 'second authority') to take over the duties towards the unaccompanied child. Once the second authority has accepted responsibility, the child is treated as never having been ordinarily resident in the first authority's area.[18]

If the second authority does not comply with the request, the Home Office can direct it to provide the first authority with written reasons for its decision.[19]

The transfer of responsibility scheme is currently voluntary, but the Home Office has the power to devise a scheme under which it can direct local authorities to accept responsibility for an unaccompanied child.[20]

Age assessment

The courts have given guidance on the appropriate processes to be adopted when a local authority is assessing a young person’s age.[21]

Assessments complying with these principles are described as 'Merton compliant'. This requires that a young person must be given the opportunity to:

  • respond to provisional adverse findings

  • have an 'appropriate adult' present in age assessment interviews

Case law has established that:[22]

  • age is a matter of fact and it is for the court to determine the age of an individual where this is disputed

  • the starting point in the absence of documentary evidence of age is the overall credibility of the young person

  • age cannot be determined solely from appearance and demeanour, except in clear cases

The Association of Directors of Children's Services (ADCS) and the Home Office have provided joint working guidance on how staff in the Home Office and local authorities should cooperate by sharing information related to age assessment where either disputes the age of a person claiming to be a child. ADCS has also published Age Assessment Guidance to assist social workers undertaking age assessments.

Further information on age assessments is available from Coram Children's Legal Centre.

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:[23]

  • 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.[24]

Support for families with children where asylum support has ended

Where a family of failed asylum seekers with a child in need had sought support under the Children Act 1989, the High Court held that the local authority could not refuse or withdraw support and accommodation on the basis that section 4 support was, or might be, available from UKVI, unless it could show that:

  • UKVI was able and willing (or if not willing could be compelled) to provide section 4 support, and

  • section 4 support was sufficient to meet the child's assessed needs

This is because UKVI's power to provide section 4 support is 'residual' in respect of the local authority's powers and duties under section 17 of the Children Act.[25]

The High Court has held that a child in a failed asylum seeking household who had previously been assessed as not 'in need' under the Children Act should have had their needs reassessed in light of the change of circumstances when the family became threatened with homelessness. The court held it was not reasonable for the authority to take a 'wait and see' approach in respect of whether section 4 accommodation and support met the child's needs before carrying out a 'child in need' assessment under the Children Act 1989, because of the residual nature of section 4 support.[26]

Where UKVI decides to suspend or withdraw support, for example because an asylum seeker has breached one of the conditions under which accommodation was being provided, the children of the asylum applicant may become eligible for support under the Children Act. In these circumstances, the local authority becomes responsible for the children. Although the Immigration and Asylum Act 1999 does not specifically mention this power, assistance under section 17 of the Children Act may include assistance for the whole family. Local authority provision of support for the whole family can be justified on the grounds that it is provided to promote and safeguard the welfare of the child.[27]

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.[28]

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.[29]

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.[30]

Last updated: 23 March 2021

Footnotes

  • [1]

    s.17(6) Children Act 1989.

  • [2]

    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).

  • [3]

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

  • [4]

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

  • [5]

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

  • [6]

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

  • [7]

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

  • [8]

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

  • [9]

    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.

  • [10]

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

  • [11]

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

  • [12]

    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).

  • [13]

    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.

  • [14]

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

  • [15]

    Working Together to Safeguard Children, DfE, 2018.

  • [16]

    Regulation 5(1)(f) Care Planning, Placement and Case Review (England) Regulations 2010 SI 2010/959 as inserted by reg 3(2) Care planning and Care Leavers (Amendment) Regulations 2014 SI 2014/1917.

  • [17]

    R v Wandsworth LBC, ex parte Stewart [2001] EWHC Admin, [2002] 1 FLR 46.

  • [18]

    s.69 Immigration Act 2016; reg 2 Immigration Act 2016 (Commencement No. 1) Regulations 2016 SI 2016/603.

  • [19]

    s.71 Immigration Act 2016.

  • [20]

    s.72 Immigration Act 2016.

  • [21]

    R (on the application of B) v Merton LBC [2003] EWHC 1689; FZ v Croydon LBC [2011] EWCA Civ 59.

  • [22]

    R (on the application of A) v Croydon LBC and Secretary of State for the Home Department: R (on the application of M) v Lambeth KBC and Secretary of State for the Home Department [2009] UKSC 8; R (on the application of AE) v Croydon LBC [2012] EWCA Civ 547; Bedford CC v GE (Eritrea) [2017] EWCA Civ 1521; (1) KA (2) NBV v Croydon LBC [2017] EWHC 1723 (Admin).

  • [23]

    s.23C Children Act 1989 as amended.

  • [24]

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

  • [25]

    R (on the application of (1) VC and others (2) K) v Newcastle CC and Secretary of State for the Home Department (Interested Party) [2011] EWHC 2673 (Admin).

  • [26]

    R (on the application of ES) v Barking and Dagenham LBC [2013] EWHC 691.

  • [27]

    s.17(3) Children Act 1989.

  • [28]

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

  • [29]

    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.

  • [30]

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