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Contents

1. Introduction
2. Legal Framework
3. Assessment: Key Steps and Information Gathering
4. Eligibility Test
5. Assessment of Need
6. Decision
7. Review and Termination of Support
8. Review of Protocol
   
   Appendix 1: Human Rights Assessment and Assessment Pro forma
   
   Appendix 2: Designated Officers and Knowledge Resources

1. Introduction

No Recourse to Public Funds (NRPF) applies to a person who is subject to immigration control, does not have the right to work, and has no entitlement to welfare benefits, public housing or UK Border Agency (UKBA) asylum support.

This protocol relates specifically to the four classes of people ineligible for support under Section 54 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002:

• Nationals of the European Economic Area (other than the UK);
• Those with refugee status from an EEA state;
• Persons unlawfully present in the UK (this includes people whose visa date has expired); and
• Failed asylum seekers who have refused to co-operate with removal directions

The protocol has been developed to provide a consistent approach to single people and families with NRPF who seek assistance and support from the Council. Staff from Adult and Community Services, Children's Safeguarding and Social Care, and staff from other agencies who undertake the assessment role on behalf of the Council, will follow the procedure set out in this protocol. This will help to ensure that, whichever service is first approached, they are assessed in the same way, to determine whether they are eligible for a service.

The protocol is for use when working with:

• Adults aged 18 or older (who were not looked after as children or young people by the local authority) and
• Adults who are responsible for children

Separate guidance is available on unaccompanied asylum seeking children and young people over the age of 16, which can be accessed through the Bromley Children's Social Care Procedures manual (See, Unaccompanied Asylum Seekers Procedure)

Presently there is no Government guidance for local authorities in respect of this group of adults or for children and their families. The protocol is based on work undertaken by the NRPF Network which provides information and guidance for local authorities in this area of work.

For Accession 8 and Accession 2 EEA Nationals consult Legal Services and the NRPF Network (April 2010) guidance. Please note that the arrangements for those nationals are due to change in April 2011.

2. Legal Framework

The following legislation is relevant to this area of work:

• National Assistance Act (1948)
• Immigration and Asylum Act (1999)
• Nationality, Immigration and Asylum Act (2002)
• Asylum and Immigration (Treatment of Claimants, etc Act) (2004)
• Immigration, Asylum and Nationality Act (2006)
• European convention on Human Rights
• Human Rights Act (1998)
• NHS and Community Care Act (1990)
• Mental Health Act (1983)
• Local Government Act (2000)
• Children Act (1989)
• Children (Leaving Care) Act (2000)

Section 54 and schedule 3 of the Nationality Immigration and Asylum Act 2002 removes the rights of EEA nationals and their dependants, failed asylum seekers and overstayers to community care assistance. This includes exclusion from financial support under section 17 Children Act 1989 and section 21 National Assistance Act 1948.

Where an individual is ineligible or unable to provide evidence of eligibility as defined above, Social Care Services may have a duty to provide support if it is necessary to avoid a breach of a person's rights under the European Convention on Human Rights (ECHR).  In practice, the relevant articles of the ECHR are likely to be:

• Article 3 (prohibition on torture or inhuman or degrading treatment or punishment) and
• Article 8 (respect for private and family life)

The Council still has the following duties toward all children, young people and families regardless of their status:

• Under the Children Act 1989, to carry out a Child in Need Assessment for all children under 18 years old who are in families, where there may be concerns about a child/children's welfare and/or safety;
• To carry out a Child in Need Assessment for all 'separated' children under the age of 18 and to provide them with services in line with needs identified using Section 17 and Section 20 of the Children Act 1989;
• Under Section 47 of the National Health Service and Community Care Act 1990, to carry out an assessment of an adult for community care services where it appears that the individual may be in need of such services.

3.  Assessment: Key Steps and Information Gathering

There are two key steps that should be undertaken in assessing whether there is a duty to support an individual or family:

1. conducting an eligibility test; and
2. carrying out an assessment of need

The eligibility test should be conducted first and information should be gathered within one day. Any request for an assessment of need related to an individual or family with NRPF will be prioritised.

Where the initial contact has been made with Adult and Community Services, Chart 1 should be followed. For cases originating from older people and physical disabilities teams, the case will be taken on by the Senior Care Manager, Physical Disabilities (SCMPD); for people with a learning disability, the SCMPD will act as a consultant, offering advice and guidance to the relevant assessor / Care Manager in the learning disabilities team.

Where the initial contact has been made with Children's Services - Chart 2 should be followed. The process will be led by the Group Manager in the relevant Referral and Assessment Team (East or West) - see Appendix 2.

Where the initial contact has been made with staff of another agency (i.e Oxleas Mental Health NHS Trust) who are undertaking the assessment role on behalf of the Council, the expectation is that those staff will carry out the assessment but will be able to seek advice and guidance from the SCMPD.

Information gathering and documentation

Before the eligibility test / assessment is begun, it is important that the applicant understands what is required before a decision to provide a service can be made. In particular, it is up to the presenting person to provide the Council with the information required to meet their needs. It is also advisable to ascertain whether an interpreter is required: it is not advisable to use a family member.

It needs to be made clear that there will be a comprehensive check of all the relevant details before a decision is made regarding provision of a service.

Adults Services - Chart 1

Click here to view Adult Services - Chart 1

Children's Services - Chart 2

Click here to view Children's Services - Chart 2

The applicant needs to be informed that they will be asked detailed questions to confirm the information given and that this is time-consuming, requires evidence, and also checking with other professionals and managers. The applicant needs to be informed that no decision will be made without full information which the presenting person must supply; and that any interim decision for the provision of support will not necessarily result in ongoing support.

The documentation that will be required to determine eligibility will include:

• Passports and birth certificates for all members of the family;
• Home Office papers (application letters, refusal letters, Application Registration Card (ARC)) and solicitors' letters;
• Any official letters, utility bills, tenancy agreements which will be used as proof of address;
• If available, travel documents like return air tickets;
• If available, medical reports; and
• If available, bank account statements (most recent 3 months).

All identification documents supplied must be original documents. Staff will need to:

• view the original documents;
• take photocopies; and
• file the copies in the client's folder.

If the applicant or any dependents have health needs, they must provide documented evidence of ill health or disability for that member of the family, e.g. OT reports, mental health/psychiatric reports.

Where required, establish the timescales within which any missing information can be provided to a satisfactory level.

Other Checks and Considerations

1. Ensure internal checks are completed: check all names on the adult, children's and mental health (Oxleas NHS Trust) client databases.
   
   The Oxleas NHS Trust mental health database cannot be accessed directly by Adult and Community Services staff or by Children' Services and Safeguarding staff but can be accessed via BSSD or via the Duty worker at the Liaison Intake Team (LIT) on 0208 466 2500. Other agencies (Oxleas) will need to contact BSSD for information on CareFirst.
2. Obtain agreement to do checks with external agencies.
3. Consider what legal advice is required for the presenting person and for the Council. Notify Legal Services (Jim Kilgallen) by email of any new case involving NRPF at the earliest opportunity.
   
   Do not speak to any outside legal representative but direct them to LBB's legal department.
4. Consider interim arrangements:
   
   For the period that eligibility is being assessed, it is important to
   • establish the basis upon which the family can remain at their accommodation; and
   • establish the basis upon which they can continue to live without any immediate support.

Where children are involved, temporary services may be required pending the outcome of the assessments and whilst travel arrangements are made. This is necessary to avoid a breach of the family's human rights.

If Section 17 money is awarded, families are to be given written confirmation that it is an emergency payment pending the outcome of an assessment.

All agreements for expenditure must be made by a Head of Service or appropriate budget holder where the assessment is being undertaken by another agency on behalf of the Council based on the information gathered.

4.  Eligibility Test

In assessing eligibility the Council needs to:

• establish whether it is "territorially responsible" (that is, whether the person is ordinarily resident in the borough);
• carry out an immigration check to establish eligibility under immigration legislation;
• check whether the Council is excluded from supporting the person under section 54 and schedule 3 of the Nationality, Immigration and Asylum Act 2002 and,
• where the applicant falls within one of the excluded groups, carry out a human rights assessment to establish whether there is an obligation on the Council to provide support in order to prevent a breach of a person's human rights;
• establish that the applicant / family is destitute.

Territorial Responsibility

Adults

In order for the authority to be territorially responsible individuals must be:

• ordinarily resident in the local authority's area; or
• not ordinarily resident in any local authority area and presenting as homeless and in urgent need, i.e. where a person has no settled residence and is in urgent need of services, it is the responsibility of the local authority where the person presents to provide services; or
• ordinarily resident elsewhere, but presenting in another local authority in urgent i.e. critical need.

In the latter situation discussions should normally take place with the relevant local authority on how support should be provided, and how this would be paid for.

If there is a dispute between authorities as to where someone is ordinarily resident, the service user should not be left without provision whilst the dispute is resolved. The authority in whose area the person is at the moment of the application should provide a service, whilst making it clear to the other authority that it does not accept that it is the responsible authority.

See also the (ACS) Guide to Assessment and Care Management, Appendix 6 Guidance on Ordinary Residence.

Children

The ordinary residence requirement is distinct in children and families cases from those of adults. The local authority area where the child was living when the need arose is responsible for assessing that family. Exceptions to this rule are when a child is:

• accommodated by another local authority;
• receiving services other than subsistence and accommodation from another local authority; or
• subject to a care order in another local authority.

Children subject to a Child Protection plan are the responsibility of the authority in which they are living and responsibility should be transferred accordingly.

Immigration status

It is important to check the immigration status of persons with NRPF in order to apply the correct considerations and assessments. In particular it must be established whether they are excluded from Section 21 NAA support under Schedule 3 of the NIAA and whether they have any claims pending with the Home Office.

Immigration checks can be made through the Local Authorities Communication (LA Comms) Service. LA Comms can be contacted on 020 8760 4527 but only provide information to designated officers (see Appendix 4). Checks can also be made via e-mail. An e-mail needs to be sent to LA@UKBA.gsi.gov.uk with as many details of the individual that you have - Full name, DOB, Home Office ref. if you have this. Response times are likely to be: 28 days (non-urgent) and 10 days for social services requests.

Where individuals have never claimed asylum, i.e. they are or were general claims applicants, such as visa holders or overstayers, their solicitors may also assist with providing evidence of immigration status. In these circumstances, an authority may also seek information in writing by emailing GAPs (General Applications) at the Home Office on LA@ind.homeoffice.gsi.gov.uk but information can only be provided to designated officers

In order to confirm each person's immigration status, documentary evidence is required of the following:

• Passport plus entry visa.
• Precise date of entry and visa status, including dates of applications to change visa status  with supporting documentation  .
• Home Office documentation
• Home Office reference number
• Marriage certificate, birth certificates, divorce certificate
• Sponsor's details, including full name and address and contact details

Where appropriate, obtain written evidence that the applicant's legal advisors have lodged an application or an appeal and what it is for. In these circumstances, seek advice from Legal Services on the meaning of the applications, which piece of case law is relevant, and include the information in the assessment. Also, request that legal Services contact the applicant's legal representatives.

Additionally, it is important to establish and record:

• History in the UK
• Full chronology of events since arrival
• Details of living arrangements, friends/relatives etc.
• Details of current living arrangements and sources of support
• Details of each child / dependant and their connection / relationship to the presenting person
• Details of children's schools
• Family tree
• Where pregnancy is claimed, estimated delivery date and confirmation of pregnancy
• Where claim is for a nursing mother, confirmation of 'nursing' is required from Health Visitor

Exclusion from support under section 54 and schedule 3 of the Nationality, Immigration and Asylum Act 2002

Staff need to establish whether the individual/family falls into one of the classes ineligible for support:

• Nationals of the European Economic Area (other than the UK);
• Those with refugee status from an EEA state;
• Persons unlawfully present in the UK (this includes people whose visa date has expired); and
• Failed asylum seekers who have refused to co-operate with removal directions

The onus is on the applicant to produce evidence to prove that they do not come within one of the ineligible groups above. The person should produce a passport, birth certificate or original Home Office document confirming immigration status. Where a person claims they do not have original travel documents, it is reasonable to ask them to produce letters from their solicitors confirming their immigration status. Solicitors' letters to the Home Office should be stamped "recorded delivery" to confirm that an application has been made.

Where an individual is ineligible or unable to provide evidence of eligibility as defined above, the local authority can only provide support if the applicant demonstrates it is necessary in order to avoid a breach of their human rights ( See European Convention on Human Rights  - ECHR Assessment Form)

Local authorities have a duty to inform the Home Office of any person they suspect or know to be unlawfully present in the UK or a failed asylum seeker (paragraph 14 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002). Legal Services should be notified of any such person and they will send a letter to the Home Office requesting confirmation of status and further action being taken.

NB: For Accession 8 EEA nationals (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia but not Cyprus and Malta) and Accession 2 EEA nationals (Bulgaria and Romania) consult Legal Services and the NRPF Network (April 2010) guidance. Please note that the arrangements for those nationals are due to change in April 2011.

Human Rights Assessment

Where a case does not meet all eligibility criteria outlined above, the Council will need to carry out a human rights assessment.

In practice, the relevant articles of the European Convention on Human Rights (ECHR) are likely to be:

• Article 3 (prohibition on torture or inhuman or degrading treatment or punishment) and
• Article 8 (respect for private and family life).

Staff must request proof that an application to remain in the UK under Article 3 or 8 has been made in cases involving non-EEA nationals who are otherwise ineligible for services, but who claim that a failure of the local authority to provide support will result in a breach of Article 3 or Article 8.

See Appendix 1: Human Rights Assessment and Assessment Pro forma for a pro formas assessment format and further information on Articles 3 and 8.

Destitution

Where an adult presents to the local authority as destitute, the Council can exercise its power to provide temporary accommodation pending the outcome of relevant assessments.

In order to establish destitution the individual needs to demonstrate that they have no other means of support available. This would include establishing whether they are homeless or cannot meet essential living needs, and exploring whether support could be provided through:

• friends or family;
• the voluntary or community sector;
• savings;
• a sponsor;
• eligibility for welfare benefits; or
• selling anything of value.

Where homelessness is claimed, evidence is required to establish:

• why they cannot get housing or return to the address they originally arrived at or people they stayed with
• housing history and last address, address of sponsor, details of person that they have been staying with and permission to contact them.
• that the Housing department will not be giving the family housing and the reason why

If immediate destitution is claimed:

• Where have the family been sleeping for the past 14 days?
• How have they been feeding themselves?
• What has the family been living on?
• Why is any support they have been receiving no longer available or when/why is it to be withdrawn?

For financial status consider:

• Information from the Benefits Agency
• Bank statements
• Income from all sources
• National Insurance number
• Length of time that family claim to have been without finances

It is reasonable to request evidence such as copies of bank statements and notices to quit a property in order to establish whether or not a person is destitute. Local authorities can check with HMRC in order to establish that the individual requesting support is not working.

It is important to remember that in exercising powers all relevant factors must be considered and irrelevant ones ignored and that the Council cannot fetter its discretion by strictly applying a blanket policy.

5. Assessment of Need

In order to assess needs, local authorities should carry out, as appropriate,

• a community care; or
• a section 17 Children's Act assessment.

Community Care Assessment

An assessment is required in order to establish whether:

• an adult is owed a duty to be provided with residential accommodation under Section 21 (1)(a) NAA
• an expectant or nursing mother may qualify for support under section 21(1)(a) and section 21 (1)(aa) of the National Assistance Act 1948.
• a person formerly compulsorily detained under Sections 3, 37, 47 or 48 of the Mental Health Act 1983 is owed a duty for provision of Section 117 aftercare services.

FACS criteria cannot be applied when assessing whether residential accommodation under Section 21 NAA should or must be provided for people with NRPF. The test is one of an unmet need for 'care and attention', framed by the ruling in M v Slough (2008).

Persons with NRPF who have been compulsorily detained in hospital under the MHA Sections 3,37,47 or 48 will be owed a duty for provision of Section 117 aftercare services like any other person subject to the MHA. Unlike Section 21 NAA or Section 17 CA, aftercare services under Section 117 are not excluded services under Schedule 3 NIAA. Any services provided under Section 117 MHA take precedence over services provided under Section 21 NAA and would be funded by the relevant health authority and/or social services authority, depending on the person's needs. The duty to provide aftercare services continues until the person is assessed as no longer having a need for aftercare.

For further guidance see the NRPF Network Practice Guidance on Assessing and Supporting Adults with NRPF and speak to Legal Services.

Families with Children - Children in Need Assessments under s17 of the Children Act

A child that is destitute may be considered a child in need and therefore may be eligible for local authority assistance under Section 17 of the Children Act . If the child has no additional needs, the local authority should seek alternative sources of support, such as Section 4 IAA for refused asylum seekers, or voluntary return for visa overstayers (in cases where the child would cease to be a child in need on returning to their country of origin and where no human rights breach would result). If the family is eligible for support under Section 95 IAA, this is their only option for support.

It is essential that a 'child in need' assessment is carried out under the Children Act 1989. The assessment should be child-focused, based on the needs of the child and on any potential risk there is to the child. The local authority should also establish the ordinary residence, destitution and immigration status of the child(ren), as these may differ from those of their carer(s).

For families caught by Schedule 3, Section 54 NIAA, the Child in Need assessment must form part of a human rights assessment.

6.  Decision

All assessment decisions should be recorded in writing, and the outcome clearly communicated to the applicant.

If the individual/family is found to be ineligible for support the assessment outcome should clearly state why the applicant is not eligible, or no longer eligible, for support in relation to the eligibility criteria listed above. If support is to be withdrawn, at least 21days notice should be given.

For families to whom the local authority owes no duty to support, they should be referred on to organisations that can help them return home or arrangements should be made by the local authority for travel home.

If a duty arises to support an individual/family who is NRPF, subsistence payments of

• 80% of the Income Support rate if in Bed & Breakfast;
• 100% of income support rate if in other accommodation

Agreement for funding will be made at Head of Service level.

If a duty is accepted to provide accommodation the appropriate cost code should be forwarded to the Team Manager of Housing Options, Assessment & Emergency Placements with confirmation that accommodation and subsistence payments have been approved. Housing Options, Assessment & Emergency Placements will arrange for a suitable placement to be made and arrange payment of weekly or two weekly subsistence payments.

If a duty is accepted to provide accommodation/ support then:

• There is an ongoing duty to make visits and update assessments;
• Checks should be made to ensure the accommodation is being used for the correct purposes;
• Checks should be made to ensure that other funds are not being received.

The above should be carried out by the team providing the main service.

It may well be that a decision to withhold support or to grant partial support may be challenged by means of Judicial Review. If this is the case all staff will need to be aware that additional reconsideration of assessments may be required and should liaise with the legal department to check what level of assistance may be required pending determination of any proceedings.

For information on shared funding agreements between Children's Social Care and Adult and Community Services, please refer to Joint Protocol with Adult Community Services.

7. Review and Termination of Support

All NRPF cases will be subject to regular review.  The frequency of review will need to be determined in each individual case but will need to take account of the requirement to maintain close contact with individuals and families placed in accommodation and should be no less than monthly.

Where support has included accommodation, subsistence payments, child in need services or personal or domestic care, and a determination has been made that the support should be terminated, a minimum of three weeks' notice of cessation of that support should be given.

8. Review of Protocol

This protocol will be reviewed on an annual basis. The need for an earlier review may be agreed between Children's Social Care and Adult and Community Services. It will be necessary to review practise and consider any area for further development as requested.

Appendix 1: Human Rights Assessment and Assessment Pro forma

Article 3 claims

There are 5 components to Article 3: inhuman treatment, degrading treatment; inhuman punishment, degrading punishment; torture. There are two key issues in relation to Article 3: (i) whether the facts of a service user's claim fit into one of the 5 components of article 3 and (ii) the need to show a minimum level of severity for Article 3 to be engaged.

Article 3 is an absolute right, i.e. if proved, there is no defence.
Degrading treatment occurs where a person reasonably feels fear and anguish, that is humiliating and debasing, where this is caused by the action or inaction of national or local government.

If the Home Office has refused an individual's claim under Article 3 and/or 8, then a local authority can withhold or withdraw support as case law has established that such a person, who can and should return to his country of origin but refuses to do so, would suffer degradation as a result of his decision to stay in the country and not as a result of any breach of human rights by the authority. If an Article 3 claim has been rejected by the Home Office, it follows that the service user could avoid reaching the level of degradation described in Article 3 by returning to his country of origin. There may sometimes be a need for short term provision of sufficient length to allow arrangements to be made.

Article 8 claims

Article 8 grants a right to respect for private and family life, home and correspondence. The right to respect for private life can include medical issues. Article 8 is a qualified right. Public authorities are prohibited from interfering with the Article 8 right except where the grounds for interference are in accordance with law, they pursue a legitimate aim and they are necessary and proportionate. The following are legitimate aims: the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others. 

Article 8 is a qualified right, i.e. once it is established that the right exists (under Article 8(1)), it is necessary to consider whether any interference with the right is justified (under Article 8(2)).

In Article 8 cases the applicant needs to demonstrate what effect failure to provide support would have on them, and the local authority determines whether or not support should be provided.

If support is to be refused, an authority must be able to demonstrate that this is a fair and proportionate response, balancing the need to conserve resources and the impact the refusal will have on the applicant. Legal advice should be sought when a potential breach under Article 8 is claimed, as current case law in this area will affect the response.

The template below can be used in assessing cases under article 3 and 8 of the European Convention on Human Rights. (Template developed by The NRPF Network, Islington Council.).

The template is designed to supplement, not replace, assessment formats arising from Framework for Assessment (in relation to the Children Act 1989) or assessments conducted under the National Assistance Act or other accepted national or local authority assessment formats. Where appropriate, the most recent statutory assessment should be appended to this ECHR assessment.

European Convention on Human Rights  - ECHR Assessment Form

Appendix 2: Designated Officers and Knowledge Resources

Children's Social Care

Designated Officer Referral & Assessment (West)	Adrian Marian
Designated Officer Referral & Assessment (East	Abi Chennells
Group Manager, Referral & Assessment (West)	Alison Mills-Clark
Group Manager, Referral & Assessment (East)	Simon Harrison

Adult Social Care

The Senior Care Manager (Physical Disabilities) will act as Designated Officer for all Adult Social Care cases.

The Senior Care Manager (Physical Disabilities) will act as consultant / knowledge resource for staff / assessors in the ACS Learning Disability team and for staff of Oxleas Mental Health NHS Trust.

End