Social services support for children in ‘no recourse’ families

This is a long form article providing an overview of how local authorities in England should meet the needs of children in families excluded from other support due to their immigration status.

Introduction

The 2023 court case, BCD v Birmingham, sets out the how local authorities should support children in families that are ineligible for welfare benefits because of their immigration status. Unlike other families, they are prevented from accessing benefits as a safety net when they hit hard times. Without other adequate income to feed or support themselves, the child or children in those families are likely to be ‘in need’. As a result, if the family comes to the attention of the local authority, they will consider whether they should support a child in need under their powers in section 17 of the Children Act.

Section 17 can support any child in need who is physically present in the local authority’s area, not just migrants. But families prevented from accessing benefits because of their immigration status can need larger amounts of support over a longer period.

The judgment provides a useful summary of when such families can be supported and whether the level of support can be linked to other schemes such as benefits rates or asylum support. As such, it’s helpful for immigration or generalist advisers to know about eligibility. After all, an adviser may need to refer a family for this support, or find them asking for advice when refused help or supported inadequately.

The case is also essential reading for local authorities. Birmingham Children’s Trust made a number of legal and practical errors in setting their policy for supporting families with no recourse to public funds. It is very unlikely that they are the only ones to do so. Local authorities might also want to revisit whether they should also support immigration advice for those affected. The judge made strong observations about this.

For those unfamiliar with section 17, a child in need is either:

1. unlikely to achieve or maintain a reasonable standard of health or development without this support
2. likely to have their health or development significantly impaired without support
3. disabled.

Who does this affect?

The outcome of this case will be relevant to families where the parent(s) or carer(s) are not British citizens and have either

• no permission to be in the UK — for instance they are an illegal entrant, an overstayer or on immigration bail
• permission to stay subject to a condition of no recourse to public funds — for instance on a student, partner or visitor visa
• permission allowing them to stay and no restriction on claiming public funds, but benefits regulations mean they are not entitled. An example would be a parent with pre-settled status under the EU Settlement Scheme, but with no EEA regulations right to reside for their Universal Credit claim — for instance they are not a worker.

The facts of the BCD case

Here, the grandmother came over from Jamaica on a visit visa to help her daughter look after the 3 grandchildren whilst their mother was ill. Sadly, the daughter died and the grandmother was left caring for the children — at least one of whom was British.

The question was whether Birmingham Children’s Trust — who exercised the powers of social services — were
a. right to limit section 17 support to asylum support rates and
b. whether they could, or should, pay more for British children compared to the children of a parent or carer with no permission to stay in the UK.

The decision

The High Court decided that it was not lawful to cap section 17 payments at asylum support rates. They approved a £10,000 settlement to compensate the grandmother.

They also held that it was not discriminatory to make higher payments for children who were British citizens, but this would depend on the category they were in. However, that did not mean that social services must pay amounts for the needs of British children at mainstream benefit rates. They only need to pay due regard to the fact they were British.

The court’s reasons

His honour Judge Tindal helpfully set out the 5 categories (see below). Each is treated differently depending on the immigration status of their carer. It was clear that in their assessment and their policy, Birmingham did not clearly distinguish between them.

Birmingham, by the way, had all the facts on the grandparent’s immigration history, but didn’t seem to have had the expertise to properly interpret it. When they did understand it, and became aware that an application should be made by BCD, they did nothing initially to support the children’s grandmother despite knowing she couldn’t afford legal advice.

In general, social services departments have the right to obtain information about the immigration status of people asking for support. They can get this from the Home Office, through ‘NRPF Connect’. They can also request information — including the nationality of the children — direct from the family. Generally, it will be apparent, because the family will explain that this is the reason they are destitute. However, getting the bare facts may not be enough and they ought to have had specialists look at a family’s circumstances early on.

Returning to Judge Tindal’s categories, he sets out the level of support that would be legally allowed in each. It’s desirable for local authorities to be clear about the category when assessing a family. I have set these out below in a simpler way than in the judgment:

Category 1

Where the adult carers are

1. not asylum-seekers eligible only to apply for section 95 Asylum Support
2. not ineligible under Schedule 3 of the Nationality Immigration and Asylum Act (NIAA) as either

• a person with refugee status granted outside the UK
• a failed asylum seeker not co-operating in steps to remove them
• a non-asylum seeker who is an illegal entrant or overstayer

and

3. the children (whether British or foreign-national) are assessed by the local authority as ‘in need’ and requiring support

In these cases, Section 17 of the Children Act is engaged in full. No human rights assessment is necessary. The extent of financial support depends on the social worker’s assessment of the child’s welfare needs in their particular case. It cannot be capped at Asylum Support rates - it is not about the minimum amount to avoid destitution - and a local authority would need cogent reasons if they limited it to equivalent amounts.

You should note that we refer to the adult carer’s status. This is because nothing in Schedule 3 can exclude help given to either a child, or to a British citizen.

Payments above Asylum Support rates will be necessary for the family’s other welfare needs such as:

• family holidays
• occupational, social, cultural or recreational activities e.g. swimming lessons
• TV and internet
• toys
• food
• toiletries
• clothing including school uniform
• nursing and maternity needs
• utility bills
• rent
• needs arising from health or disabilities.

The items in bold cannot lawfully be met by Asylum Support. Whilst the Home Office may provide ‘no choice’ accommodation, they will not pay the rent for a home the applicant is already renting. Other items may only be partially or inadequately covered by Asylum Support payments. Of course, we are presuming here that none of these needs can be met from other sources, and the social worker is entitled to assess the family’s income, savings, and any other potential means of support.

The court said it is likely to be unlawful to import Asylum Support rates without substantial addition or qualification, or to use them as anything more than a starting point for the needs Asylum Support can legally cover.

For local authorities, this probably means it’s best to set section 17 support at rates unconnected to those in the asylum system or make it clear that appropriate additions will be made for the items that are not covered by those rates. If not, they risk judicial review and damages claims.

The children’s grandmother fell into category 1 because it was accepted that she had a right to be in the UK. During the relevant period she had a visitor visa or, when that expired, she had a right to stay under EU law, as a Zambrano carer who had entered the UK before 31 December 2020.

You will see that this category includes adult carers with permission to stay subject to a no recourse condition, or who are otherwise prevented from claiming due to benefits eligibility rules. In particular, it is open for a local authority to help a parent or carer with pre-settled status under the EU Settlement Scheme, but who is excluded from benefits because they have no right to reside under the EEA Regulations, for instance as a worker. Since Brexit, European Economic Area (EEA) citizens have not been an excluded category under Schedule 3.

As there is no human rights assessment, social services cannot go behind the immigration status of the carer and say that they ought to go back to their home country rather than be supported. At present it is believed that many social workers mistakenly carry out human rights assessments for this category. Birmingham’s policy wrongly said that a human rights assessment must be done for all those seeking support.

Social workers might need to consider support for families where the parent or carer does not have a NRPF condition, but is still struggling to meet their child(ren)’s needs. For instance, where a child’s disability means their outgoings are significantly more than their income allows or where it has been decided a parent or carer is intentionally homeless and the child(ren) are at imminent risk of homelessness. It may all depend on the assessment of need, but also, a parent or carer on a short term visa — such as for a student — would need to know that the Home Office would learn of their situation. They’d then have to consider whether to take the risk of the Home Office revoking their visa, or refusing to extend it, for failing to meet the rules on maintenance.

Category 2

Where the adults are

1. asylum-seekers (including those refused, unless they have leave to remain)
2. with dependant children under 18 in the UK (irrespective of their nationality);

and

3. the family is ‘destitute’ as defined in section 95 of the Immigration and Asylum Act 1999, that is, lacking adequate accommodation and/or the means to meet ‘essential living needs.

Section 122(iv) of the Act limits local authority section 17 support to ‘additional welfare needs’, and not ‘essential living needs’ or ‘accommodation’.

However, it obliges the Home Office to ensure the child is adequately accommodated and their ‘essential living needs’ are met. The latter is ‘generally’ done at Asylum Support rates.

Category 3

This category covers an adult foreign-national carer of dependant children — irrespective of the children’s nationality — who falls into one of the ‘ineligible classes’ in Schedule 3 of the Nationality Immigration and Asylum Act 2002 (mentioned in category 1 but repeated here for completeness):

1. a person with refugee status granted outside the UK
2. a failed asylum seeker not co-operating in steps to remove them
3. a non-asylum seeker who is an illegal entrant or overstayer

Advisers are most often going to see overstayers.

In these cases:

1. local authority support can be provided directly to the child (for instance child counselling etc.) but
2. practical or financial support under section 17 (or under a local authority’s discretionary powers) which also benefits the ineligible adult is limited to the extent necessary to avoid a breach of their human rights under the European Convention on Human Rights. The Judge said that this support should also not be benchmarked to Asylum Support, but must be assessed in individual cases depending on the needs of the children.

Support is ‘necessary to avoid a breach of human rights’ where a refusal of it would result in either

• inhumane treatment — which would usually be destitution or
• a breach of the ability of the family to stay together or preserve their physical or moral integrity

and

• the breach could not be avoided by them returning to their country of origin if reasonable.

Though the court did not set this out, other cases show that it is unlikely to be reasonable for them to return if either:

• there is a legal barrier to return, for instance decisions, claims or potential claims or ongoing appeals. Typically this is where either
• the children are British
• the children have lived in the UK for 7 years, or have put down substantial roots in the UK and thus have a private life claim
• return would end close contact with another child, parent, carer or sibling and they thus have a family life claim
• return would only be possible to a country where they might suffer harm, or from which they have refugee status or humanitarian protection
• any other breach of human rights would result.
• there is a practical obstacle to return, for example, entry restrictions imposed by the return country, unless this can be overcome with the family’s co-operation
• the family or parent/carer is making an application for leave that is not hopeless nor abusive (Birmingham City Council v Clue [2010] EWCA Civ 460)
• if the family need to obtain legal advice about their immigration options before return can be considered

A destitute family claiming section 4 Asylum Support, but not yet accommodated by the Home Office, are likely to be eligible for section 17 help where there is a child in need. This is because they will either be asserting that they would suffer harm, or are unable to travel, or would be prepared to cooperate in leaving the UK. Indeed, if section 4 support does not meet the child’s assessed needs, the local authority can provide for those needs. (VC & Ors, R (on the application of) v Newcastle City Council [2011] EWHC 2673)

Category 4

This covers where

• the adults are unlawfully in the UK and
• the family would have fallen under category 3, but their human rights would not be breached — for instance they could return to their home country.

No section 17 help may be given, except discretionary help under The Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002.

These regulations allow a local authority to make travel arrangements for return to their country, and to accommodate — pending travel — a person who

• has refugee status outside the UK
• is an EEA national

or to accommodate a person who is

• unlawfully in the UK and who has not failed to co-operate with removal directions.

No help can be given under any other non-statutory discretionary support, which the local authority might provide under their general powers under the Localism Act.

Category 5

Failed asylum-seekers ineligible under other categories cannot be supported at all. The Home Office might support them, though, if they qualify for section 4 Asylum Support in the form of accommodation and support through a voucher rather than cash.

Shaping NRPF policies

The Court made observations to Birmingham Children’s Trust about their NRPF policy that may be helpful for other social services departments. This included that such a policy should

• differentiate clearly between the different statutory categories, as above
• keep its rates above asylum support rates
• give thought to supporting families with legal advice that might put them in a better position, for instance to help them apply to have the ‘no public funds’ condition lifted.

Perhaps the latter is a good reason why local authorities should partner with Citizens Advice or other agencies who can offer independant assistance with immigration applications..

Those agencies may also be able to give holistic support on benefits, housing, debt and income maximisation. This might minimise the time spent on section 17 support and reduce the pain of getting off it for the benefit not only of the child, but also the resources of the local authority.

I would also say that local authorities themselves need to have in-house or contracted help in interpreting immigration status. Fitting people into the categories should not be something left solely to unsupported social workers.

Finally, trying to avoid providing adequate support, or ignoring a social worker’s assessment of need — especially to fix help by an arbitrary external rate of support — can only lead to challenges. Worse still, the child’s development will be impacted. As has been stressed, the child should not be punished by unlawful presumptions that the parent or carer’s immigration status makes the child any less deserving.

Further reading

Project 17 has a number of resources about section 17, including factsheets on the law and how to make a good referral to a local authority. It’s a good idea to read through these if you are new to this subject.

The NRPF Network has produced a briefing for local authorities on approaches to setting rates of support.

John Donkersley is Senior Immigration Expert at Citizens Advice.

The information in this article is correct as of the date of publication. Amended 31 October 2023 to add NRPF briefing.

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