5.4.2 Operational Procedures |
Contents
- Introduction
- Context
- Legal Framework
- Definitions
- Contact and Referral
- Eligibility Criteria
- Assessments
- Service Provision
- Termination of Service
Appendix 1a - Operational Procedures Flowchart
Appendix 1b - Assessments
Appendix 2 - Subsistence Rates (per week)
Appendix 3 - Carers' Support Policy
Appendix 4 - Support for Pregnant Asylum Seekers
1.
Introduction
The following operational procedures are for practitioners in Adults and Children's Social Care working with adults/families who are subject to immigration control, including those who have no recourse to public funds (NRPF).
These operational procedures relate to adults with/without dependent children who are not entitled to public funds. This may be because they are ineligible due to one of the reasons in immigration legislation or because they are entitled to be in the country but have 'no recourse to public funds'.
The purpose of these procedures is to provide operational staff with clear guidance on the duties and powers available to them in the provision of social care and support to such people in a consistent and non-discriminatory manner.
The objective of these operational procedures is to ensure that the London Borough of Croydon applies the relevant legislation correctly, fairly and consistently. It is important to note that if immigration legislation is not correctly applied or observed, it could lead to an immigration offence which is punishable by a prison sentence or fine.
2. Context
The term "Immigration Control" refers to those people who belong to one of the following groups:
- Asylum Seeker
- Failed Asylum Seeker
- Habitual Residency Test Failure
- Subject to visa restrictions
- Over-stayers
- Benefit Gap
Further explanation of these terms can be found below.
The term "support" refers to accommodation, subsistence and social care services. This procedure deals exclusively with the provision of such support needs and the interfaces with specialist areas such as Mental Health, Learning Disability, Adults' Services and Children's Services, including the roles and responsibilities of services involved.
3. Legal Framework
A complex legal framework exists in which the provision of support is arranged. In determining whether or not support should be provided reference needs to be made to all relevant legislation and existing case-law. It should be noted that case-law in this area is constantly changing which may result in changes in policy and procedures.
The legislation in use is:
- National Assistance Act 1948 (NAA 1948)
S21 (1a): Subject to and in accordance with the provision in this Part of the Act, a local authority ...shall, make arrangements for providing - (a) residential accommodation for person aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them.
S21 (1A): A person [subject to immigration control, including asylum seekers] may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely - (a) because he is destitute; or (b) because of the physical affects, or anticipated physical affects, of his being destitute.
S21 (1) (aa): There is a power for local authorities to provide support to expectant or nursing mothers under Section 21 (1)(aa) of the NAA who are in need of care and attention which is not otherwise available to them. The case of R (Gnezele) v Leeds City Council; R (Dayina) v Leeds City Council (2007) EWHC 3275 (Admin) has clarified that expectant and nursing mother's who are in need of residential accommodation are dealt with exclusively under Section 21(1)(aa), in the absence of any other needs for care and attention not associated with pregnancy or nursing a baby. The case held that destitute expectant or nursing mothers are not in need of care and attention by reason of their being pregnant or nursing a child meaning that the duty under Section 21(1)(a) does not arise. If the expectant or nursing mother had a separate need for care and attention (i.e. 'looking after') then the duty under Section 21(1)(a) may arise.
It is important to remember that consideration of exercise of the power must be reasonable and rational, all relevant factors must be considered and irrelevant ones ignored. Where support is otherwise available e.g. UKBA support, this will be relevant to the assessment of need under Section 21 (1) (aa) NAA. In the case of a pregnant woman on a spousal visa fleeing domestic violence, the situation is different as UKBA support is not available. It would therefore be expected that the local authority would use its powers under Section 21 (1) (aa) to avoid the woman becoming homeless.
If the woman is a national of a European Economic Area (EEA) country, or unlawfully in the UK, support under Section 21 (1)(aa) will be excluded by Schedule 3 NIAA.
It is worth noting that where an individual is caught by the restrictions to support under Schedule 3 NIAA 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, and, in the case of EEA Nationals, if it is necessary to prevent a breach of their rights under the Community Treaties. The recent case of N v Coventry City Council (2008) EWHC 2786 (Admin)held that the human rights assessment should be completed as the lead assessment, to determine whether there would be a breach of human rights if no support is provided. The local authority should only go on to assess community care needs if the conclusion is that there would be a breach of human rights without any support. Human Rights assessments should be considered as part of the 'eligibility for services' process.
S29: Prohibits cash payments (see R -v- Secretary of state for Health ex parte Hammersmith LBC and other 1998 CA) and Parliament has not enacted any provisions to allow for asylum seekers supported under this provision to receive cash. Hence, s.21 of the National Assistance Act 1948 did not enable to the Local Authority to make cash payments. This was upheld by the Court of Appeal.
The EU directive allows for needs to be met by provisions in kind, or in form of financial allowances or vouchers or in a combination of these provisions. Although The Asylum Seekers (Reception Conditions) Regulations 2005 which took effect on 5th February 2005 does stipulate that the Secretary of State shall take into account the special needs of the asylum seekers, most of these provisions are already enacted in our current legislation. - Children Act 1989 (CA 1989) s17 (6): The services provided by a local authority in the exercise of functions conferred on them by this section may include giving assistance in kind or, in exceptional circumstances, in cash.
- s20: The Local Authority cannot accommodate the family under s.17 of Children Act 1989 but can accommodate the child only under s.20 Children Act 1989. The Children Act 1989 contains a presumption generally in favour of keeping families together.
- S47: places a duty on Local Authorities to make enquiries into the circumstances of children considered to be at risk of 'significant harm' and, where these enquiries indicate the need, to undertake a full Investigation into the child's circumstances.
- National Health Service and Community Care Act 1990 (NHSCCA 1990):
Under the National Health Service & Community Care Act 1990 section 47(a) everyone (regardless of their immigration status) is entitled to an assessment of their social care needs. The Local Authority (Social Services Department) having due to regard to that assessment has a duty to provide "community care services" to meet those assessed needs (section 47[b]). - Nationality, Immigration and Asylum Act 2002 (NIAA 2002)
Section 54 & Schedule 3: support cannot be lawfully provided by a Local Authority if the person is:- A national of the European Economic Area (other than the UK)
- A person with refugee status from an EEA state
- A person unlawfully present in the UK (including those whose visas have expired)
- failed asylum seekers who have refused to cooperate with removal directions
Section 55: Asylum Seekers will only be eligible for support from NASS if:
- They can prove they have applied for asylum.
- They meet the criteria for destitution.
- They apply for asylum as soon as "reasonably practicable" after arrival in the UK.
Section 57: Access to support by NASS will be denied to those who do not provide- A "clear and coherent account of how they came to the UK" or
- They fail to provide clear or accurate information about their circumstances or
- They fail to co-operate with further enquiries.
Para 3 of Schedule 3 provides that para 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of Para 14 of Schedule 3 places a reporting obligation on local authorities in cases where it appears to the authority that a person in their area is unlawfully present in the United Kingdom or is a failed asylum-seeker who has refused to comply with removal directions issued by the Immigration Service.
- Immigration and Asylum Act 1999 (IAA 1999)
In addition to the above the council will have due regard to:
Section 4: provision of NASS support by UKBA to failed asylum claimants pending removal
Section 95: provision of NASS support by UKBA for those claiming asylum - Human Rights Act 1998 (HRA 1998) especially Arts 3 & 8
Article 3 HRA
Article 3 of the HRA is as follows: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
If someone has submitted an application to the UKBA based on Article 3 HRA (within the immigration rules), they are not caught by the restrictions under Schedule 3 NIAA. In such cases the local authority must consider whether services should be provided under Section 21 NAA or Section 17 CA, as the case may be, and whether they should be provided to avoid a breach of human rights.
For those who do not have an asylum claim however, the situation is very different. Case law has established that there is no duty under the ECHR to support foreign nationals who are freely able to return to their country of origin. If it is a viable option for the person to return home, but they refuse to do so, any hardship or degradation suffered will be a result of their decision to stay in the country and not as a result of any breach of human rights by the local authority.
The threshold for engaging Article 3 HRA is extremely high. A breach of Article 3 HRA will often be argued on the basis that a person cannot return to their country of origin because they will be deprived of the type or level of medical treatment that they are receiving in the UK. The leading case is N (FC) v Secretary of State for the Home Department (2005) UKHL 31, in which the House of Lords held that the Secretary of State's decision to return a Ugandan woman with HIV and AIDS did not breach her Article 3 rights, even though she could live for decades on treatment in the UK but would most likely die within a matter of months if returned to Uganda. It was stated that:
"The test in this sort of case, is whether the applicant's illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity."
Article 8 HRA
Under Article 8 of the HRA
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for 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 "for the protection of health or morals, or the protection of the rights and freedoms of others" (under Article 8(2)).
Article 8 HRA claims are most relevant to local authorities in family cases, where support or assistance is sought under Section 17 CA 1989.
Prior to the judgement in Clue v Birmingham City Council (2010] EWCA Civ 460 on 29 April 2010, if an individual makes a claim to the Home Office under Article 8, they do not become an asylum seeker and a local authority did not have to await the outcome of an Article 8 claim before deciding whether there would be a breach of human rights if it were to refuse support. Since the said judgement, a local authority cannot refuse support to a destitute family where there is an outstanding application to the Home Office, unless that application is "obviously hopeless or abusive". Where there is no outstanding application or other legal or practical obstacles to return, a local authority can lawfully proceed to offer tickets to countries of origin if Art 8 rights can be enjoyed there. The Home Office stated that local authority-supported cases (including family cases) would be prioritised in order to reduce the costs of providing support pending decisions on applications.
Case Law
Whilst there is a clear legal framework as detailed above, there is in addition significant related case law which further defines eligibility and pursuant practice.
Slough Judgment
Local authorities provide residential accommodation under section 21 of the National Assistance Act 1948 to individuals who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them.
The recent judgement in the House of Lords' case M v Slough Borough Council ("the Slough Judgment") on 30th July 2008 [2008] UKHL 52 has redefined the interpretation of local authorities' responsibilities to provide support to individuals under Section 21 of the National Assistance Act 1948. The Judgment clarified what is a care need within the meaning of section 21, and as a consequence, to now qualify for section 21 support, an individual has to have a care need which requires some additional help over and above provision of accommodation, for example, assistance with personal care or household tasks. This in effect raises the threshold; previously authority suggested that illness by itself without a need for any care over and above medical assistance could be sufficient.
As a result, a number of asylum seekers/failed asylum seekers supported under section 21 are no longer eligible, and some of these may be eligible for asylum support under sections 95 or 4 of the Immigration and Asylum Act 1999.
4. Definitions
| Term | Definition |
| Asylum Seekers | People who have a current asylum claim being dealt with by the UK Border Agency (UKBA). An Asylum Claim is a claim that to remove the applicant from the UK would render the UK in breach of its obligations under the Refugee Convention and/or European Convention of Human Rights |
| Failed Asylum Seekers | People who have exhausted all their rights of appeal against a negative decision and are either awaiting or have been given notice to leave their accommodation or the country. |
| Habitual Residency Test Failure | These are people who hold a UK passport but have not lived in the UK for 6 months or more. On returning to the UK they are not deemed to be habitually resident and therefore not entitled to public funds or housing. |
| Subject to Visa Restrictions | This covers people who have entered the UK on visa (e.g. Student, work or visitors). |
| Over-Stayers | These are people as described in "Subject to visa restrictions" above but whose visas have now expired. In most cases applications are made to the UKBA for leave to remain in the UK. |
| Benefit Gap | These are people who have been granted leave to remain in the UK. The benefit gap is the time between the person being given leave to remain and the access to public funds. |
| Vulnerable Adult | A person who is or may be in need of community care services by reason of mental or other disability, age or illness; and who is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation; or A person whose actions or behaviour or is persuaded to act or behave (by others or circumstances) in such a way that may make them susceptible to physical or emotional harm; or A homeless person who would be less able to fend for themselves than an ordinary homeless person so that they would be likely to suffer injury or detriment, in circumstances where a less vulnerable person would be able to cope without harmful effects. |
| Carer | Someone who provides substantial care i.e. 20 hours or more a week. |
| Destitution | "Destitution" in relation to the Immigration and Asylum Act is defined as:
|
| Destitution Plus | Someone who is eligible for services under the National Health Service and Community Care Act 1990 and meets the criteria for destitution described above. Asylum seekers with special needs who meets the criteria for destitution plus will be eligible for support by the local authority under the National Assistance Act 1948 s21. It should be noted that where a person has a diagnosed serious illness such as HIV but at the present time they are well they should be treated as having special needs. |
| Special Needs | Screening by NASS includes information about health needs - medication, hospital information, etc. This screening is very superficial and only identifies special needs which are visually obvious. An assessment must be carried out under the NHS and Community Care Act 1990. A special need would be a person who meets the criteria for service eligibility. This includes:
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5. Contact and Referral
All referrals and contacts should be recorded on the relevant area of SWIFT/ICS and Identification Numbers allocated.
If the contact referral is made directly to Children services, the referral should be passed to the Immigration and Asylum Support Service (IASS)/part of the Adults in Need service in DASH where the co-ordination of service provision for adults with or without dependent children is undertaken in partnership with other services.
The fact a person has made a claim or an application to the Home Office that has yet to be determined does not mean that support must be provided. Croydon Council is entitled to consider the merits of the application.
The child remains at the centre of all that the London Borough of Croydon does. In circumstances where the carer of the child is not eligible for a service or refuses a service offered, the carer and the child must be informed that the child can be assisted in his/her own right.
6. Eligibility Criteria
Single Adults and Families with Children qualify for assessment for service if they:
- do not have access to welfare benefits
- have no personal financial means to independently support themselves and/or their family
- are not eligible for support from the National Asylum Support Service (NASS)
To be eligible for service provision a person must be:
- an adult, including adults with responsibility for children
- ordinarily resident in the local authority area
- destitute
- assessed as having community care or mental health needs under the National Assistance Act 1948
- eligible for support under immigration law
- someone who has to be supported to prevent a breach of their human rights, under the European Convention on Human Rights
The first step is to determine eligibility in relation to area of residence.
On no occasion will Croydon agree to financially support adults and families that have been placed by another local authority in Croydon. The ordinary residence requirement is distinct in children and families cases from those of adults.
The Borough within which the child is living or is found as a Child in Need is responsible for assessing that family. Exceptions to this rule are when a child is (as found at Rule 11.4 of the London Child Protection Procedures):
- Accommodated by another local authority;
- Receiving services other than subsistence and accommodation from another local authority;
- Subject to a Care Order or a Child Protection Plan in another local authority.
- Fleeing domestic abuse from another local authority area.
The Council might consider supporting such people with other forms of support that would not amount to financial support. If a family is placed in Croydon by another borough, it is important that the Council negotiates with the Children's Services from the host borough about supporting the family.
Before assessing someone who is not a British National, it is important to clarify their immigration status in the UK.
In order to establish the immigration status of people undergoing such assessments the following question should be asked:
- Are you a British Citizen?
- Are you an EEA national?
- Do you have recourse to public funds (access to welfare benefits)?
If the answer to any of these questions is 'NO' a referral should be made to IASS/DASH, where the referral will be processed.
The following information should be provided where available:
- Copies of all Home Office Documents
- Home Office Reference Number
- Copies of all Solicitors Letters and documents
- Copies of all health/social care assessments
- Details of current situation such as support networks, current accommodation, who is supporting the person at present.
- Any other relevant information concerning the person's health or social care needs.
- Details of GP or hospital Consultants and any medical reports
It is important that where no papers are available, details of the applicant's solicitor are provided.
Where the applicant is an adult with responsibility for a child, consideration must be given to undertaking a Section 17 CA assessment to establish whether the child has needs over and above those that apply to the carer, for example the existence of special needs. In addition, where a Section 17 CA assessment is required, consideration needs to be given to the child's right to family life under Article 8 of the European Convention on Human Rights (ECHR). The homeless child will be a child in need and should be accommodated in any event.
It is worth noting that although certain persons are ineligible to receive assistance under s17 CA 1989 and s21 NAA 1948 (residential accommodation for persons in need of 'care and attention'), these exclusions under Schedule 3 NIAA do not apply to children, and it is important to remember that duties to children under the CA 1989 remain. Where the parent(s) falls within one of the excluded groups, the local authority must: carry out a human rights assessment (including a child in need assessment where support is being requested under s17 CA 1989) to establish whether there is an obligation on the authority to provide support in order to prevent a breach of a parent's and/or child's human rights.
7. Assessments
Interim support can be offered to claimants without prejudice pending completion of assessment, where it is ascertained that no other person can assist that person in the interim.
There are essentially three levels of assessment which are described below. Each assessment needs to be complete as soon as reasonably practicable in order that the Council minimises support costs where a client is not eligible for services but has been supported pending completion of assessment. (See Appendix 1b - Assessments)
Contact Assessment
A Contact Assessment must be carried out for every request for support. This assessment must include full personal details of the person requesting support and their family/dependents/carers and full details of any medical problems or physical/sensory disabilities.
Immigration Assessment
An Immigration Assessment must be carried out to establish the immigration status of the individual concerned.
All clients have 5 days to produce required documents (e.g. passport or documentary proof of their connection to Croydon). Every client must have a valid travel document. Assistance will be given to ensure the client applies for/obtains a valid travel document if one is not available.
If the client is unable to provide the required documents without a valid reason, all support will be withdrawn after 5 days.
Overview Assessment
An Overview or Community Care Assessment will be carried out to establish an applicant's eligibility for support under the Fair Access to Care Services 'guidance'.
Fair Access to Care 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). 'Care and attention' under Section 21 National Assistance Act 1948 means a need for 'looking after' (M v Slough (2008)).
Specialist Assessment
Where necessary, a person may be referred for a Specialist Assessment if required, including a children's services assessment when there are dependent children. A Specialist Assessment is carried out by a suitably qualified person from one of the following service areas:
- Children's Services - worker based in IASS/DASH
- Integrated Adult Mental Health Services
- Occupational Therapy
- Sensory Impairment
- Substance Misuse/Dual Diagnosis
- HIV/AIDS
Assessment Summary
Working under the Fair Access to Care framework, and using the evidence collected from all the preceding assessments, the assessor will determine whether the applicant is eligible for support because of presenting critical or substantial needs.
Carer's Assessment
A carer's assessment must be carried out if relevant to ascertain the level, type and frequency of support provided. (See Appendix 1b - Assessments)
Assessment under the Human Rights Act
Where a person is ineligible by reason of schedule 3 NIAA, as detailed above, the Local Authority may still be able to provide services under the Human Rights Act. A local authority can only provide services in such instances where a failure to provide services would breach a person's human rights, and only to the extent necessary to prevent a breach of their human rights.
Local authorities are entitled to look at whether the person is able to return to their country of origin in order to prevent a breach of human rights. Where return would prevent a breach, it would be lawful for a local authority to offer assistance in returning clients to their country of origin.
When looking at whether return to country of origin is a viable option, it is necessary to look at whether return is impeded for legal or practical reasons, or whether the client is unable to travel due to illness.
The relevant articles of the Human Rights Act 1998 (HRA) are likely to be: Article 3 and Article 8.
In cases where the person is involved in court proceedings in the UK, (Article 6 HRA, right to a fair and public hearing), it may be relevant to consider whether return to country of origin would infringe the person's right to a fair and public hearing.
Where a person has NRPF and is caught by Schedule 3 NIAA claims that a failure of the local authority to provide support will result in a breach of Article 3 or Article 8, local authorities should request proof that an application for leave to remain in the UK has been made pursuant to either Article 3 or 8 HRA.
This proof should be in the form of a letter from UKBA confirming receipt of their claims for Leave to Remain.
If there is an outstanding claim with the Home Office for Leave To Remain under Article 8, the LA cannot offer tickets returning to country of origin unless it is manifestly unfound.
- An example of what is deemed to be manifestly unfounded is described as follows. For e.g. if the person is claiming to remain in the UK solely on grounds of family life i.e. if she were to return she and the child would be separated from her husband and LA has evidence that she has separated from her husband. The latter would mean that their grounds are manifestly unfounded (in the case of Kimani).
If it is found that assistance is needed to prevent an unlawful breach of a person's human rights for any of the issues raised above i.e. Article 3 HRA, Article 8 HRA, inability to travel or practical obstacles to return, the local authority must move on to their Section 47 NHSCCA assessment to determine whether it is the local authority that is obliged to provide services to prevent that breach. In other words, does this person have a need for 'looking after' for the purposes of Section 21 (1)(a) NAA. If it is found that assistance is not needed to prevent an unlawful breach of human rights, the local authority can attempt to resolve the case by either offering tickets to country of origin or referring the person to the IOM for assistance in returning voluntarily.
There may sometimes be a need for short term provision of sufficient length to allow arrangements to be made. Such services may need to be provided by the local authority and not by the UKBA if the person has a need for 'looking after' which prevents them from accessing UKBA asylum support as an able bodied person.
It is important that assessments under the Human Rights Act cover the family's life in UK, Country of Origin and any other country where the family has legal immigration status.
8. Service Provision
Where individuals and/or families meet the criteria above, and depending on individual circumstances, the following services may be provided on a temporary basis:
- Accommodation
The accommodation offered will meet the needs of the household size, and have appropriate facilities.
For legal reasons, accommodation is provided on a temporary basis, and is provided on a licence to occupy on a day to day basis.
(B&B/Hostel-style) Emergency accommodation will generally take the form of a bed and breakfast placement, with a 6 weeks' maximum for adults with families. - Accommodation (Rented)
In certain circumstances rented accommodation will be provided where, after assessment, it has been established that B&B/Hostel-style accommodation is not suitable.
Only landlords who meet the standards set down by IASS will be used to supply accommodation. - Accommodation (Residential)
People with high level social care needs should be placed in residential homes if the assessment by the Care Manager/Social Worker indicates that this is the most appropriate placement. Where service users meet the required assessment for residential nursing care the appropriate funding agreements/requirements will be sought from the NHS by the IASS. - Subsistence (Adult)
Subsistence for adults will be provided in the form of a voucher. The provisions of the National Assistance Act 1948 S29 prohibits cash payments. Service users can opt to have subsistence paid partly in the form of a travel credit/Oyster Card. - Subsistence (Children)
Subsistence for children can be paid in cash or voucher. (Children Act 1989 s17(6))
See Appendix 2 - Subsistence Rates (per week).) - Social Care
If after assessment social care services are needed, these will be provided in accordance with existing care management procedures.
Other support available
Support Services
IASS/DASH has a range of support workers including social workers who can offer practical and emotional support, and can assist in identifying and accessing support services outside IASS/DASH.
In addition, where there are problems such as mental health, children in need or other concerns, support can be provided from the appropriate Council services and voluntary organisations.
The Council works in partnership with voluntary organisations and other local authorities to assist in accessing other support. Information can be provided about support groups which offer a vast range of services.
Employment
Under current regulations, after 6 months of residency in this country an application for the right to work can be made to the UKBA. If agreement is given, IASS/DASH must be informed, as well as if employment is found. Being employed and having earnings may effect entitlement to support.
Health
A doctor and dentist provide health care for free. It is vital to register with a doctor as soon as possible, and not just when you are ill. Only register with a dentist who accepts NHS patients to receive free treatment. IASS/DASH has a list of General Practitioners (GP) and dentists within localities, and can assist if there are any problems in registering.
A HC2 exemption certificate is necessary to access free prescriptions, dental treatment, travel costs to hospitals for NHS treatment, free eye tests and vouchers for NHS glasses. This will be sent about a month after completing a HC1 form. It is therefore vital to complete an HC1 application form, which can be obtained from the Council, and which IASS/DASH can help you complete.
Extra Money
There are exceptional circumstances where additional financial assistance may be provided. Entitlement to additional financial help requires an assessment of your circumstances. Assistance in completing any relevant application forms from other outside organisations can also be provided.
Education
A list of schools within your area, and assistance in gaining a school placement for dependent children will be provided. Assistance in applying for the provision of free school meals for children will be provided to families with an asylum application pending at the Home Office.
Welfare Rights Officer
IASS/DASH will help Asylum Seekers who have received 'Leave to Remain' to identify and apply for appropriate benefits, and will work with newly recognised refugees until receipt of relevant benefits.
Conditions of service
All service users must comply with the conditions of service. These include:
- inform IASS/DASH of any change in your immigration status.
- inform IASS/DASH of any change in you social status.
- inform IASS/DASH of any Home Office appointments.
- notify IASS/DASH of any participation in any educational studies.
- vandalising or damaging of accommodation will not be tolerated.
- staff will be treated in a polite and courteous manner. Appropriate action will be taken if Croydon's equal opportunities policy is abused in respect of staff or other clients of IASS/DASH.
- receipt of payment for all monies will be signed for.
A staff member will provide a copy of the complete conditions of service on request.
Rejection of application of service
If an application for service by the Council is rejected by IASS/DASH, the reason/s will be fully explained, and advice and information offered in regards to the possible next course of action.
Rejection of an application may be because:
- the applicant has been living outside Croydon, and will therefore be directed to the local authority where s/he previously lived
- the applicant has not provided relevant up to date documentation needed to assess his/her needs and circumstances
- the applicant has access to public funding, or other financial means of support
- the applicant rejects the offer of accommodation
- the applicant fails to comply with the conditions of service
The list above does not cover all the possible reasons for rejecting an application.
IASS/DASH may decide to reject an application for other relevant reasons which become known.
Referral to NASS/NAM
NASS (National Asylum Support Service) also known as NAM (New Asylum Model), is part of the UKBA.
Applicants for Asylum after 3rd April 2000, depending on individual circumstances, will be referred to NASS for a service, under current regulations.
9. Termination of Service
Termination of a service is usually due to the UKBA making a decision on an application. In some circumstances a service may be terminated for other reasons, including:
- the service user no longer has an assessed need
- the service user has breached the conditions of service
- the service user has knowingly provided fraudulent information
Termination will only occur after an investigation in a case has confirmed evidence to substantiate the decision. Apart from exceptional circumstances, people whose service is being stopped will be given adequate notice prior to termination.
The service user has the right to appeal a decision to end a service.
IASS/DASH will advise on how to make an appeal.
Appendix 1a - Operational Procedures Flowchart
Appendix 1b - Assessments
The Local Authority has a duty under National Assistance Act 1948 Section 21 to make an assessment of needs and where appropriate provide accommodation and support to vulnerable people aged 18 or over.
The Local Authority has a duty under the Children Act 1989 to make an initial assessment of a child and to provide support (in the form of accommodating and subsistence) where the child is deemed to be "in need".
- Contact Assessment: concludes eligibility for assessment of service provision.
- Immigration Assessment (see also Section 17 CA Assessments)
Schedule 3 of the Nationality, Immigration and Asylum Act 2002 makes 4 categories of person (but not children) ineligible for a range of 'welfare services', including assistance under section 17 of the Children Act 1989. These are:
- A person who has refugee status in another EEA State (see Appendix A) or their dependants
- A person who has the nationality of another EEA State (see Appendix A) or their dependants
- A person who was but is no longer an asylum-seeker and who has failed to co-operate with removal directions issued in respect of him or their dependants - such a person who has a child with him is highly likely to be eligible for asylum support and should not be supported under section 17.
- A person who is in the UK in breach of immigration law (i.e. a person who does not have leave from the Home Office to be here) and who is not an asylum-seeker.
A person in Category a) has refugee status in another EEA State or their dependents do. A person in category b) has the nationality of another EEA State or their dependents do. "Dependents" in both cases can mean adults or children.
- Take a copy of a valid travel document. If a valid travel document is not available, assist family to acquire a valid travel document for all members of the family including children.
- Establish if the family has access to accommodation and support anywhere else, i.e. if have been dispersed to another part of the UK by NASS. If 'No', go to step c, if 'Yes', refer to appropriate borough.
- Assess if family are entitled to mainstream benefits or what they can do to be eligible for mainstream benefits. If the family is not eligible, steps d-i should be followed as applicable.
- Where there are child protection issues, the normal child protection process should be followed, but the individual worker should make contact with the family's embassy, in order to link with the equivalent of Children's Services in the family's EEA State in preparation for case transfer.
- The family should be informed that the Local Authority can assist them with a return ticket back to their EEA State.
- The family should be informed that whether the Local Authority assists them or not with a return ticket or any other financial support, the Local Authority would inform the Home Office of such support.
- The family can only be accommodated for a maximum of 5 days from the first day they presented themselves.
- The family should be informed that the accommodation and subsistence allowance is pending family returning back to their EEA state.
- Supporting families who fall in categories a) or b) longer than 5 days is in breach of the guidance given to local authorities from central government.
- The local authority should not support such a family for the sole purpose of the family finding alternate housing or employment.
- Therefore support is only for families intending to return back to their EEA state or country where they have refugee status.
- Always inform UKBA of all families that seek support from the Local Authority even where support was not offered and there was no further intervention.
A person in category c was but is no longer an asylum-seeker and has failed to co-operate with removal directions issued in respect of him or his dependents. NB: Such a person who has a child with him is highly likely to be eligible for asylum support and should not be supported under section 17
- Take a copy of a valid travel document. If a valid travel document is not available, assist family to acquire a valid travel document for all members of the family including children.
- Inform UKBA of all individuals or families who present to Children's Services for support.
- Ask UKBA for further directions towards assisting such families.
- The Council should endeavour not to support the family, but should refer them to UKBA for support under Sec 4 (Support for Failed Asylum Seekers.)
Where the client is a family with dependent children, the following steps should be followed in addition to the above:
- It is important that their reason for not co-operating with their removal is established.
- Support can only be given if the reason for not co-operating with removal is accepted by the UKBA and the family starts to take reasonable steps towards returning to the country of origin.
- Refer to the International Organisation for Migration (IOM) or UKBA to progress Assisted Voluntary Return (AVR) if appropriate.
- Always inform UKBA of all families that seek support from the Local Authority even where support was not offered and there was no further intervention.
A person in category D is in the UK in breach of the immigration laws (i.e. a person who does not have leave from the Home Office to be here) and is not an asylum-seeker.
- Take a copy of a valid travel document. If a valid travel document is not available, assist family to acquire a valid travel document for all members of the family including children.
- Inform UKBA of all individuals or families who present to the Council for support.
- The Council will not support any family that falls into any of these categories:
- Students and their dependents
- Accompanied minors even if the accompanying adult has parental responsibility or not.
- Visitors and their dependents
- Applicants with a spouse visa unless there is reliable evidence that domestic violence actually caused the relationship to break down.
However, there are situations where further consideration should be given to families who meet children's services eligibility criteria. For instance:
- Spouse or partner with a valid spouse visa and whose marriage broke down due to domestic violence during the probationary period, and where a Domestic Violence Application was made to the Home Office before the end of their probationary period.
- Spouse with a valid spouse visa, whose partner died during the probationary period, and an application was made to the Home Office before the end of their probationary period. Each case should be looked at on individual merit.
Families that have Human Right Article 8 applications with the Home Office should have all assessments carried out including the children's services Human Rights Assessment. This type of application does not mean automatic support from the Local Authority because if a family can still enjoy family life from a country other than UK it is not unlawful if the Local Authority refuses to support the family. The aim of conducting Human Rights Assessments by Children's Services is to ascertain if support can be continued, permitted or withdrawn.
If not in categories a) - d)
For families that do not fall in any of the categories a)-d) detailed in 2.3 - 2.5 above, carry on with the assessment.
Assessment of vulnerable adults without dependent children
Community Care Assessment and Human Rights Assessment
Assessment of adults with dependent children
Initial Child in Need Assessment and Human Rights Assessment. A Core Assessment may be necessary within the required 35 working days.
Appendix 2 -
Subsistence Rates (per week)
Subsistence
The provision of subsistence by the Council covers food, essential goods and travel (weekly or monthly bus pass).
Subsistence payments are made in the form of vouchers only. Vouchers are redeemable at a number of outlets in the borough.
The service users are given flexibility, choice and control over the way in which subsistence needs can be met.
They have following options:
- Subsistence Only
- Travel Only
- Subsistence and Travel
Level of Subsistence
Subsistence for adults will be matched at the same rate as NASS. Essentially, this equates to 70% of income support.
The Subsistence Package
Service Users can opt to have their total subsistence package in the form of vouchers for food and essential goods. The total value can be split into smaller monetary values for ease of use or between different providers.
There is also the option to receive voucher to purchase ethnic food.
Travel Only
Service users can opt to have the full allowance paid in the form of travel credits (i.e. Oyster Card of bus carnet tickets).
Subsistence and Travel
Service users can opt to have the total subsistence package split between food/essential goods and travel. The ratio of this is to be determined by the service user. Vouchers for food/essential goods can be divided into smaller values and between providers. Travel can be provided as either Oyster Card Credit or bus carnet tickets).
Note - Where Service Users are accommodated in establishments where breakfast is provided as part of accommodation, Service Users will be offered the choice of breakfast and a reduction in voucher value or no breakfast and no reduction.
Concessionary Travel Scheme
If a Service User is eligible for a Freedom Pass under the current concessionary travel scheme operated by the London Boroughs and administrated by Transport for London they will be entitled to the full subsistence package.
Information, assistance and advice can be provided to Service Users on the scheme. It is the responsibility of the Service User to ensure the application is completed, all required information and accompanying documents required is supplied with the application.
Subsistence
The payment schedule below provides details of the current weekly subsistence allowances. The IASS will confirm the level of support provided.
For those accepted as eligible for service provision, the basic subsistence rates are agreed as 70% of benefits' rates, which are comparable with NASS rates:
| Single Adult | £40.00 |
| Adult Couple | £60.00 |
| 1st Child/Dependant <18 Subsequent child/ren/ |
£25.00 |
| Dependant <18 | £10.00 |
No variation from these subsistence levels is permitted |
|
Appendix 3 -
Carer's Support Policy
Purpose
The Council has a power or a duty to provide support (accommodation and subsistence) to those people in "need of care and attention" under the parameters of the National Assistance Act 1948 s.21 (1a). To determine whether or not a person is in need, they are assessed under the National Health Service and Community Care Act 1990 s.47 and having due regard to the results of such an assessment (s.48) services are provided.
The Council assesses eligibility of support for single adults with/without dependent children, and where the main applicant has a "special need" (known as Vulnerable Person). In some cases the Vulnerable Person is supported by another adult member of the household to undertake basic tasks such as; managing personal hygiene; feeding and food preparation; shopping; dressing; and transfers (moving from bed to chair, W.C., wheelchair etc.)
In recognition of the substantial care and support given by the adult to the Vulnerable Person, the department has a discretionary policy that it may use to support the carer in their caring role. This support to carers is provided where the carer does not have recourse to public funds, they are over the age of 18 years and they are not entitled to support by virtue of having a special need.
Provision of Care and Attention
A carer's assessment must be carried out in the first instance (as part of the Vulnerable Adults' assessment or independently) to ascertain the level, type and frequency of support provided.
The assessment should clearly state on the Vulnerable Adults' assessment what the risks would be if this support was not provided by the carer. The risks should also state what the alternatives would be if the carer did not provide support.
Payment
Payment will be made to the Vulnerable Person as listed on the claim and will form an overall part of the claim.
A payment will be in the form of a voucher (as received already).
Payment will be at the level of 50% of the voucher value of the Vulnerable Person's for each adult providing substantial care and attention.
Accommodation
In general the Carer will be housed in the same accommodation as the Vulnerable person. The entire cost of the accommodation will be attributed to the Vulnerable Person.
Appendix 4 - Support for Pregnant Asylum Seekers
Context
There is a power for local authorities to provide support to expectant or nursing mothers under Section 21 (1)(aa) of the NAA who are in need of care and attention which is not otherwise available to them.
The case of R (Gnezele) v Leeds City Council; R (Dayina) v Leeds City Council (2007) EWHC 3275 (Admin) has clarified that expectant and nursing mother's who are in need of residential accommodation are dealt with exclusively under Section 21(1)(aa), in the absence of any other needs for care and attention not associated with pregnancy or nursing a baby. (p4 above Legal Framework)
Support for Adults
Support will be provided in the form of suitable temporary accommodation and vouchers redeemable at local shops (Tesco Thornton Heath) to cover subsistence*
Support for Children
The Local Authority has a duty under the Children Act 1989 to make an initial assessment of a child and to provide support (in the form of accommodating and subsistence) where the child is deemed to be "in need".
Support will be provided in the form of suitable temporary accommodation and subsistence payment where appropriate.
Procedure
The same assessment procedure as detailed above will be followed:
Contact and Referral
All referrals and contacts should be recorded on the relevant area of SWIFT/ICS and Identification Numbers allocated.
Assessment - Immigration - Adults
An Immigration Assessment will be undertaken to establish the exact nature of the Immigration control/no recourse to public funds and establish whether Croydon Council has a duty to provide support under "Ordinary Residence" rules.
Assessment - Overview - Adults
An Overview Assessment will be completed as soon as reasonably practicable. A Certificate of Confinement must be produced by the client as proof that the she is pregnant.
Regular contact with the client must be maintained to ensure that she is accessing medical care, and proof of pregnancy throughout the 3 trimesters must also be obtained.
The Duty social worker in the social work department of the hospital where the Service User is booked to have her child must be notified of IASS/DASH involvement, and to request a Pre-birth Planning Meeting.
If the Service User is not booked into a hospital a referral should be made to Mayday Hospital in the first instance.
Accommodation
Accommodation will be provided to the service user. This will take the form of temporary accommodation.
Subsistence
Subsistence Vouchers will be provided at the usual rate.
Health Issues
IASS/DASH will ensure that the service user is accessing services from the relevant healthcare professionals.
Pre-birth Planning
A pre-birth planning meeting will be convened by the children's services social worker in IASS/DASH during the 3rd trimester.
Assessment - Initial
The Initial Assessment will commence as soon as reasonably practicable after the baby is born. The Initial Assessment will be completed within the statutory period (10 days)
Assessment - Core
The Core Assessment will commence as soon as reasonably practicable after the Initial Assessment has been completed and will be completed within the statutory period (35 days).
* National Assistance Act 1948 section 29 prohibits the provision of cash payments.
End