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A partnership project delivered by Welsh Refugee Council, COMPAS and the Migration Observatory. Funded by Welsh Government.

Children and families: Destitution, safeguarding and services to migrants under the Social Services and Well-being (Wales) Act 2014

Author(s): 
Jonathan Price
Current Revision (Date): 
March 2017

 

Introduction

This briefing provides information on the duties of local authority social services departments in Wales to migrant children and families under the Social Services and Well-being (Wales) Act 2014, with a focus on safeguarding and destitution support for those whose immigration status prohibits them from accessing welfare benefits. It considers both the assessment processes and provision of services, as well as linking to examples of promising practice and other useful information. It is intended for those working in local authorities undertaking assessments of need and/or providing services, and to families and those providing assistance to families in seeking statutory support.

Status of this briefing

This briefing does not constitute legal advice and does not have statutory status. For advice on individual cases, legal advice should be sought from your organisation’s legal services or an independent legal advisor.[1] Rather, this briefing provides general information on the duties of local authorities in Wales to migrant children and their families.

The Statutory Codes of Practice and Guidance for local authorities on the Social Services and Well-being Act Wales 2014 are available at: http://gov.wales/topics/health/socialcare/act/code-of-practice/?lang=en. Local authorities must act in accordance with the codes of practice and have regard for guidance contained within it.

This briefing forms part of a series of briefings[SS1] , which have been produced for the Migration Services in Wales project. This briefing should be read in conjunction with the other nine briefings (in particular those focusing on the Social Services and Well-being (Wales) Act 2014), which are listed with weblinks below:

Please note: due to the unknown implications of the United Kingdom’s withdrawal from the European Union at time of writing, this briefing has been written to reflect the duties of local authorities under EU law as they have been until the time of writing. These may change in the coming months and years, therefore please check updates to this briefing for any further information.

How is this briefing structured?

This briefing begins by considering some of the key principles of the Social Services and Well-being (Wales) Act 2014, and where possible, a consideration of how these principles might be applied in order to meet the needs of migrant children and families for care and support (as a result of their specific circumstances, over and above settled children and families). It then goes on to consider which migrant families (by immigration status) may be in need of care and support under the Social Services and Well-being (Wales) Act 2014 and which of these groups may have entitlement to statutory accommodation and financial support other than through provisions under this Act. Following this, the briefing focuses on assessments of need under the Social Services and Well-being (Wales) Act 2014 and of potential human rights breaches, before concluding with a consideration of how eligible needs can be met under these statutory provisions.

Social Services and Well-Being (Wales) Act 2014

The Social Services and Well-Being Act (Wales) 2014[2] received royal assent on 1st May 2014 and came into force in April 2016. It replaced a number of Acts governing practice of social services in Wales, including the National Assistance Act 1948, The Chronically Sick and Disabled Persons Act 1970 and most parts of the Children Act 1989 (except its Part 4 (care and supervision) and Part 5 (protection of children)). The Act brings together social care law for adults and children into a single statute.

Well-being

A key overarching principle of the Act is that of well-being, creating new duties on local authorities to promote the well-being of adults and children. Well-being is defined under Section 2 Social Services and Well-Being Act (Wales) 2014 as:

“(a) physical and mental health and emotional well-being;

(b) protection from abuse and neglect;

(c) education, training and recreation;

(d) domestic, family and personal relationships;

(e) contribution made to society;

(f) securing rights and entitlements;

(g) social and economic well-being;

(h) suitability of living accommodation.”

For children, well-being also extends to:

“(a) physical, intellectual, emotional, social and behavioural development;

(b) “welfare” as that word is interpreted for the purposes of the Children Act 1989.”

Anyone exercising functions under the Act must seek to promote the well-being of people who need care and support. Children and families’ well-being outcomes must be identified and, if these are not achievable other than by the provision of care and support by the local authority, a duty will arise.

Preventative services

Section 19 of the Act requires local authorities to provide a range of preventative services in their area, with a range of intended outcomes, such as preventing or delaying the development of people’s need for care and support, reducing those needs and promoting the upbringing of children by their families. In relation to migrant children and their families, local authorities may decide to put in place preventative services targeted to their particular circumstances. For example in relation to immigration status, early legal advice for families to regularise irregular status could prevent the need for Social Services and Well-Being Act (Wales) 2014 support should a crisis occur whilst a parent’s immigration status precludes them from accessing welfare benefits. Additionally, providing training to staff could be a preventative measure such that they are able to identify families that are eligible for alternative statutory support e.g. asylum seekers, families where the parent is on a spouse visa and is fleeing domestic violence, and mobile EU citizens that are working.

Information, advice and assistance

Section 17 Social Services and Well-Being Act (Wales) 2014 requires local authorities to provide people in need with information about the care and support that is available in their area – including support that is provided by third sector organisations – in an accessible format, including information about how to access support in their area.

Voice and control

The Act requires that the wishes of children are considered as part of the assessments of need, to the extent the local authority considers it appropriate having regard to the child’s age and understanding. The wishes of those with parental responsibility for the children must also be sought in the assessment process. Assessments must focus on the strengths and abilities of children and families as well as their needs, and a consideration of what a person can contribute to their well-being must form part of the assessments.

Best interest principle

Those exercising functions under Social Services and Well-Being Act (Wales) 2014  are required to have due regard to the UN Convention on the Rights of the Child (under its Section 7 (2)), which includes a requirement on statutory bodies to consider the best interests of the child as a primary consideration in any action concerning them. See below section on Substantive Human Rights Assessments for more information on the best interest principle to be applied in the context of service exclusions facing certain migrant children and their families.

How might migrants be affected differently by the provisions of the Act?

Section 46 Social Services and Well-Being Act (Wales) 2014 details exclusions to the provision of care and support under the Act affecting people subject to immigration control. However, these exclusions only apply to adults and not to children. It states:

“Section 46: Exception for persons subject to immigration control

(1) A local authority may not meet the needs for care and support of an adult to whom section 115 of the Immigration and Asylum Act 1999 (“the 1999 Act”) (exclusion from benefits) applies and whose needs for care and support have arisen solely—

(a) because the adult is destitute, or

(b) because of the physical effects, or anticipated physical effects, of being destitute.”

Whilst the question of support to families with dependent children is not addressed explicitly under Section 46, it is unlikely that the separation of children from their parents will ensure duties under Section 46 are met such that adults subject to immigration control are not supported under the Act. The likelihood of securing a court order to that effect, of children and families’ rights to private and family life under Article 8 European Convention on Human Rights (ECHR) and of due regard to the best interests of the child are relevant considerations here.

Devolved and non-devolved areas of law

Whilst social care is a devolved area of law and policy (and from April 2016 will have a Wales specific Act) immigration and welfare benefits remain the responsibility of the UK government. This means that whilst restrictions to services may originate from non-devolved legislation, entitlements to services may be enshrined in devolved legislation.

Whilst Parts 4 (care and supervision) and 5 (protection of children) of the Children Act 1989 will remain in place in Wales, Part 5 should be read alongside Part 7 of the Social Services and Well-being (Wales) Act 2014, which focuses on safeguarding.

Welfare exclusions and entitlements for different groups of migrants

Section 115 Immigration and Asylum Act 1999 states that certain groups of people that are ‘subject to immigration control’ will have ‘no recourse to public funds’ (NRPF), affecting their entitlement to claim public funds as listed in the Immigration Rules[3] (‘public funds’ in this context include welfare benefits and housing-related services such as Housing Benefit, Income-based Jobseekers Allowance, Child Benefit and Tax Credits). These include people who require leave to enter or remain in the UK but do not have it (e.g. visa overstayers, illegal entrants, refused asylum seekers); those who have leave to enter or remain in the UK on the condition of having NRPF (e.g. certain people on visas); or have leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking (meaning a written undertaking given by another person to be responsible for that person’s maintenance and accommodation). It applies to adults but not children, however the policy affects public funds (‘welfare benefits’) whose purpose is to support children, such as Child Benefit.

Publicly-funded services such as the NHS, education and legal aid (along with many others) do not count as ‘public funds’ in this context and therefore having NRPF does not preclude people from accessing those services. However, separate eligibility processes apply. Support under the Social Services and Well-being (Wales) Act 2014 is not a public fund and people with no recourse to public funds as a condition of their entry or stay in the United Kingdom are not excluded from its provisions by the NRPF policy.

Mobile EU Citizens

Citizens of European Economic Area (EEA) countries (‘mobile EU citizens’) do not have NRPF as a condition of their stay in the UK. However, their access to welfare benefits is codified in specific regulations (that are the subject of a separate briefing in this series: Migrants’ Entitlements to Welfare Benefits in Wales). Where mobile EU citizens are not entitled to welfare benefits, they may be eligible for care and support under the Social Services and Well-Being Act (Wales) 2014, according to the assessment process detailed in this briefing.

Families in the asylum system

Asylum seekers are excluded from accessing most welfare benefits by the individual eligibility conditions of those benefits. Families with dependent children who have a pending asylum application with the Home office or appeal to the independent Immigration and Asylum Tribunal are eligible instead for accommodation and financial support provided by the Home Office under Section 95 Immigration and Asylum Act 1999 (which is sometimes referred to as ‘NASS support’) if they are assessed to be destitute. This support is generally provided in dispersal areas across the UK, including in Wales, via contractors.

Children who are entitled to Home Office asylum support are excluded from receiving accommodation and financial support under Section 37 Social Services and Well-being (Wales) Act 2014. This is outlined in Section 122 Immigration and Asylum Act 1999 and reflects similar measures in England, Northern Ireland and Scotland. The intention of this exclusion is to create a clear division of responsibility for providing support to asylum seekers between the Home Office and local authorities. Given that it is likely families will be accommodated together, effectively this exclusion therefore extends to affected children’s parents.

Families that are eligible for Home Office asylum support when they are assessed to be destitute include those with pending asylum claims and Article 3 ECHR claims (including any appeals). The Immigration Act 2016 made substantial amendments to the Home Office asylum support system, including the removal of the continued entitlement to Section 95 Immigration and Asylum Act 1999 support for families with dependent children whose claims were refused. However, at the time of writing, these are yet to be implemented and therefore families with dependent children whose asylum claims are refused continue to be entitled to Section 95 Immigration and Asylum Act 1999 support as long as they are destitute and in the UK.

A new provision - Section 95A Immigration and Asylum Act 1999 - will allow for accommodation and financial support to be available to destitute children and families whose asylum claims are refused in some circumstances where there is a ‘genuine obstacle ‘ to them leaving the UK. The circumstances that constitute ‘genuine obstacles to leaving the UK’ will be detailed in forthcoming regulations.

People on spouse visas fleeing domestic violence

People with leave to enter or remain in the UK on spouse visas will generally be granted this leave on the condition of having NRPF. However, special arrangements are in place for those on spouse visas whose relationship permanently breaks down due to domestic violence and want to settle in the UK. In such circumstances, applications to the Home Office can be made under the Domestic Violence Rule (DVR) for Indefinite Leave to Remain (ILR), and in the period this application is being prepared by the applicant and considered by the Home Office, applicants can apply for a specific form of leave that will give them temporary access to welfare benefits, under a scheme called the Destitution Domestic Violence (DDV) Concession.

To apply for the DDV Concession, individuals should complete the following form and return to the Home Office using the instructions on the form: https://www.gov.uk/government/publications/application-for-benefits-for-visa-holder-domestic-violence. A range of organisations in Wales, such as BAWSO (see text box below) or a legal representative can provide assistance to applicants. . The Office of the Immigration Services Commissioner (OISC) has confirmed that only organisations registered with them or are exempt from registration can provide advice or assistance to a person with the DDV concession application.

People granted Limited Leave to Remain (LLR) under certain immigration routes

People granted Limited Leave to Remain (LLR) under certain immigration routes (the long residence rules; parent and partner 10 year routes to settlement; and outside the rules on the basis of their family or private life) may have the NRPF condition attached to their leave, potentially up to the point that they are granted Indefinite Leave to Remain (ILR). However, in exceptional circumstances, leave may be granted with access to public funds, including where a family is currently supported by a local authority and the Home Office believes them to be destitute.

Parents of British children

Parents of British children who are from outside the EU may derive an EU right of residence if they are the primary carer of that child, following the European Court of Justice case of Zambrano [2011] EUECJ C-34/09. Parents who fall into this category should seek immigration advice on regularising their status. People deriving their EU right of residence under the Zambrano ruling have the right to work but have NRPF.

Social Services and Well-being (Wales) Act 2014: Assessments of need for destitute children and families

Where migrant children and families are destitute in Wales and are unable to claim welfare benefits or asylum support, as detailed in the previous section, they may be entitled to financial and accommodation support under the Social Services and Well-being (Wales) Act 2014. Where migrant children have an eligible need or needs for care and support other than destitution (for example, because they are disabled) this may also be met under the Act’s duties. These will also apply where a child is being financially supported via welfare benefits, the Home Office or the family’s own resources/earnings i.e. to all migrant groups irrespective of status.

Assessments of need for children under Social Services and Well-being (Wales) Act 2014 take place under its Section 21. Section 21 Social Services and Well-being (Wales) Act 2014 requires local authorities to assess children in their area who may require care and support to determine whether they need care and support, and if so, what those needs are. A Section 21 Social Services and Well-being (Wales) Act 2014 assessment will be triggered where it appears to a local authority that a child may need care and support in addition to, or instead of, the care and support provided by their family. The assessment aims to ascertain whether there is a Section 37 Social Services and Well-being (Wales) Act 2014 duty on the local authority to provide care and support through the provision of services, such as those detailed in the Act’s Section 34.

There are three broad steps under Social Services and Well-being (Wales) Act 2014 in determining children and families’ eligibility for support, comprising firstly the assessment of need for care and support; secondly determining whether the needs of the child for care and support are eligible because they meet the eligibility criteria (as detailed in the Act’s Regulations) and determining whether, if those needs do not meet the eligibility criteria, the provision of care and support is necessary to protect a child from abuse, neglect or harm, or the risk of abuse, neglect or harm; and thirdly by determining whether the care and support provided by the local authority meets a child’s well-being outcomes or whether these can be met independently of the local authority’s care and support e.g. via care and support provided by family or in the community.

The first stage of the assessment process requires local authorities to identify what personal outcomes the child and their parents want to achieve in light of national well-being outcomes, as defined under Section 2 of the Act, having regard to their strengths and capabilities. Identifying needs for destitute migrant children and families will necessarily involve an assessment of destitution. It is illustrative for social services departments in Wales that under Children Act 1989 provisions in England (and formerly in Wales), a destitute child is a child in need for the purposes of its Section 17.[4]

Destitution is defined under Section 46 (4) Social Services and Well-being (Wales) Act 2014 by linking it directly to the definition of destitution under Section 95 Immigration and Asylum Act 1999. It encompasses those who appear to be destitute because they no not have any adequate accommodation and/or cannot meet their essential living needs, or are likely to become destitute within 14 days. ‘Essential living needs’ under Section 95 Immigration and Asylum Act 1999 are given a broad interpretation in the case of Refugee Action v SSHD [2014] EWHC 1033, to include toiletries, nappies and the means to maintain interpersonal relationships, meaning that those who cannot afford such things are considered to be destitute. It is reasonable for a local authority to assess the alternative support available to a family that could prevent destitution e.g. through earnings or the support available from family and friends.

Secondly, a number of recent test cases have considered what local authorities must provide in order to meet the needs of children under the Children Act 1989 (these are considered below under Provision of Services), which are illustrative for two reasons: firstly because Welsh social services departments are enacting similar provisions; and secondly, because without the level of support suggested in these test cases, it could be assumed that a child is destitute and that a social services department may be required to step in and provide that level of support.

Both Home Office guidance on assessing destitution under Section 95 Immigration and Asylum Act 1999 (see: https://www.gov.uk/government/publications/assessing-destitution-instruction) and the principles established in the case law relating to this legislative provision and Section 17 Children Act 1989 provide Welsh local authorities with a framework to assess destitution for the purposes of establishing need under the Social Services and Well-being (Wales) Act 2014.

The second stage of the assessment process is the eligibility test. Once the child’s needs for care and support are determined, the local authority must assess whether those needs are eligible under The Care and Support (Eligibility) (Wales) Regulations 2015. Four conditions must be met in order for the child’s needs to be eligible. They are as follows:

“The need of a child…meets the eligibility criteria if—

(a) either—

(i) the need arises from the child’s physical or mental ill-health, age, disability, dependence on alcohol or drugs, or other similar circumstances; or

(ii) the need is one that if unmet is likely to have an adverse effect on the child’s development;

(b) the need relates to one or more of the following—

(i) ability to carry out self-care or domestic routines;

(ii) ability to communicate;

(iii) protection from abuse or neglect;

(iv) involvement in work, education, learning or in leisure activities;

(v) maintenance or development of family or other significant personal relationships;

(vi) development and maintenance of social relationships and involvement in the community; or

(vii) achieving developmental goals;

(c) the need is one that neither the child, the child’s parents nor other persons in a parental role are able to meet, either—

(i) alone or together,

(ii) with the care and support of others who are willing to provide that care and support, or

(iii) with the assistance of services in the community to which the child, the parents or other persons in a parental role have access; and

(d) the child is unlikely to achieve one or more of the child’s personal outcomes unless—

(i) the local authority provides or arranges care and support to meet the need; or

(ii) the local authority enables the need to be met by making direct payments.”

Under Section 21(7) Social Services and Well-being (Wales) Act 2014, a disabled child is presumed to be in need of care and support in addition to, or instead of the care and support provided by that child’s family.

‘Development’ for the purposes of (a)(ii) relates to the “physical, intellectual, emotional, social and behavioural development of that child.” Destitution, for example, may affect a child’s development if they would be without accommodation or access to basic material goods, such as food and toiletries. This need may also relate to families’ ability to carry out self-care or domestic routines, amongst other eligibility conditions.

Where the needs of children do not meet the eligibility criteria however, there may still be a duty on the local authority to provide care and support to a child to protect them from abuse, neglect or harm, or the risk of abuse, neglect or harm.

The third step is to determine whether eligible needs can be met other than through the provision of care and support by the local authority. Where a claim is based on destitution/need for accommodation and subsistence, a local authority may be satisfied that the child is not destitute because alternative support can be provided other than through the provision of care and support by the local authority e.g. by friends, family or their community.

Summary of steps:

  1. What are the needs of the child for care and support and their desired well-being outcomes?
  2. Do these needs meet the eligibility criteria as stipulated in the The Care and Support (Eligibility) (Wales) Regulations 2015?

Can those needs and well-being outcomes be met other than through the provision of care and support by the local authority?

Immigration restrictions on support provided by local authorities

Schedule 3 Nationality, Immigration and Asylum Act 2002 (NIAA) restricts local authorities in Wales from providing Section 37 Social Services and Well-being (Wales) Act 2014[5] support to five groups of people:

  • mobile EU citizens;
  • people granted refugee status in other EU countries;
  • refused asylum seekers who have failed to comply with removal directions;
  • people unlawfully in the UK (including visa overstayers and illegal entrants); and
  • refused asylum seeker families that have not taken reasonable steps to leave the UK voluntarily.

 

Local authorities must withhold Section 37 Social Services and Well-being (Wales) Act 2014 support from families unless doing so would breach their rights under the European Convention of Human Rights (ECHR) and, if they are EU citizens, their rights under EU law.

Where Schedule 3 NIAA applies because the family fall into one of the five excluded categories and they are seeking local authority support under the Social Services and Well-being (Wales) Act 2014, local authorities must assess whether the withholding or withdrawal of support would constitute a breach of human rights. Many local authorities use the NRPF Network’s Human Rights Assessment template, which is downloadable from the following webpage: http://www.nrpfnetwork.org.uk/guidance/Documents/Human%20Rights%20Assessment%202012.doc

Human Rights Assessments for destitute families should be fact-specific, gathering evidence to assess whether the provision of Section 37 Social Services and Well-being (Wales) Act 2014 support is necessary to prevent a breach of human rights and, where applicable, rights under EU law. The facts of a family’s circumstances should be presented in the assessment in the context of key test cases (detailed below) in order to formulate a series of recommendations for how the local authority plans to proceed in relation to the care and support needs of the family. Evidence available to local authorities and to families/their advocates in this process can be found from a number of authoritative sources, including:

 

There are two broad scenarios in which a Human Rights Assessment may be carried out: firstly, where there is a legal or practical barrier for the family to return to the parents’ country of origin, in which case the local authority must assess what duties are owed to the family in Wales (a Section 21 Social Services and Well-being (Wales) Act 2014 assessment). Secondly, where no such legal or practical obstacles are identified, the purpose of the assessment is to assess how the local authority might lawfully discharge its duties: through the provision of services in Wales under the Social Services and Well-being (Wales) Act 2014 or through assistance to the family in returning to their country of origin.

Legal and practical barriers to return

Case law has established that where there is no legal or practical barrier to a family returning to the parent’s country of origin, local authorities would not breach human rights should social services support be withheld or withdrawn ((AW and others) v Croydon LBC and others [2005] EWCA Civ 266). Examples of legal barriers to return include asylum and immigration applications to the Home Office. The case of Birmingham City Council v Clue [2010] EWCA Civ 460 confirmed that pending applications to the Home Office on human rights grounds constitute a legal barrier to return. Practical barriers to return include health issues that prevent travel or a lack of travel documents, although these may be temporary.

Where a legal or practical barrier prevents a family from returning to the parents’ country of origin, local authorities should assess what duties are owed to a child and their family in Wales by proceeding with the assessment of need.

Substantive Human Rights Assessment

If no legal or practical obstacles to return are identified, local authorities must proceed by undertaking a substantive Human Rights Assessment. If a human rights breach is identified and a family cannot be expected to return to their country of origin, then the local authority must determine what care and support the child requires in Wales. If human rights concerns that haven’t been presented to the Home Office are raised, legal advice can be sought to explore whether children and families have any enforceable rights to remain in the UK. For families that have received a decision on their immigration claim, human rights and related considerations may have been considered by the Home Office/Immigration and Asylum Tribunal and can be used by local authorities as evidence in the Human Rights Assessment. Indeed local authorities have no powers to come to different conclusions, unless the family’s circumstances or the circumstances in their country of origin have changed since the decision was issued.

The purpose of the Human Rights Assessment is to assess whether the provision of services under the Social Services and Well-being (Wales) Act 2014 in Wales is necessary to prevent a breach of ECHR rights. As Section 37 Social Services and Well-being (Wales) Act 2014 is excluded by Schedule 3 NIAA for the five excluded groups detailed above, the provision of this support is not necessary if no ECHR breach would occur should the family return, and as such, a key principle underpinning the assessment is that of ‘returnability.’ The Home Office operates voluntary return services for people that meet their eligibility criteria. Further information about these services is available at: https://www.gov.uk/return-home-voluntarily/who-can-get-help

The Human Rights Assessment for children and families is, in effect, comprised of five components (the fifth only relating to mobile EU citizens). The first three components may have been considered in immigration applications and provide strong evidence for local authorities in developing their analysis:

  1. Article 3 ECHR – No one shall be subjected to torture or to inhumane or degrading treatment

The local authority must consider whether return would cause a breach of Article 3 ECHR. The threshold for engaging Article 3 ECHR is high. The case of N v SSHD [2005] UKHL 31 provides a guide for assessing whether this threshold might be met because return to country of origin would subject them to torture or inhumane or degrading treatment, for example on health grounds or because the family fears returning to their country of origin. The test to be applied is whether the person is dying and whether they would die with dignity on return. The Article 3 ECHR rights of each family member may need to be considered where health or other concerns in relation to return are raised.

  1. Article 8 ECHR – the right to private and family life

Article 8 ECHR is not an absolute right and can be enjoyed in the parent’s country of origin. The rights of each family member must be considered, with a focus on which relationships would be affected if the family were to return e.g. between one parent and a child, or between grandparents and a child. The strength of those relationships should be considered along with how those relationships could be maintained other than through the provision of Section 37 Social Services and Well-being (Wales) Act 2014 support e.g. through visits, telephone or Skype contact.

  1. Best interests of child

A primary consideration of the assessment is whether the withholding or withdrawal of support from the family is in the child’s best interest. Where the child’s age allows, their views on the implications of the assessment should be ascertained. Framing the consideration for local authorities is whether it is reasonable to expect the child to live in another country. Whilst the best interest of the child is a primary consideration, it can be outweighed by the cumulative effect of other considerations.

  1. Child in need on return to country of origin

If a child would be ‘in need’ on return to the parents’ country of origin, then a Section 37 Social Services and Well-being (Wales) Act 2014 duty may arise in Wales. Whilst applying specifically to Section 17 Children Act 1989, the case of M v Islington [2004] EWCA Civ 235 is illustrative given the similar provisions under consideration in Wales. As such, an assessment of whether the child would be ‘in need’ in the parents’ country of origin where Schedule 3 NIAA applies may be required and can be included within the Human Rights Assessment. General enquires regarding the services available to the child in the country of origin should they return, are required here, rather than a comparison with the level or quality of parallel services available to the child in Wales. These include housing, ability of the parent to work, health and education, and a consideration of whether the state and/or family, community or third sector organisations could provide that support. Evidence to support such claims can be found in country of origin reports or other authoritative information available to the local authority (e.g. from embassies), or from conversations with family members or relevant authorities in the country in question.

  1. Rights under EU law

An assessment of potential breaches of EU rights should form part of the Human Rights Assessment where mobile EU citizens are requesting support from social services. Mobile EU citizens exercise their rights under EU law by being a qualified person under the Immigration (European Economic Area) Regulations 2006, rights that derive from the ‘free movement’ or ‘citizens’ directive. In order to be a qualified person, mobile EU citizens must be workers, self-employed, self-sufficient, students or jobseekers. A child or parent may be exercising these rights.

In the absence of case law dealing directly with the question of potential breaches of EU rights in the context of social services duties, local authorities must assess whether the provision of support under Section 37 Social Services and Well-being (Wales) Act 2014 is necessary to prevent a breach of EU rights. A breach of EU law may more clearly occur where the withholding or withdrawal of support would result in a mobile EU citizen being required to stop working; the withdrawal of support to families where a person is exercising rights as a student (a child in school, for example) would less likely result in such a breach. If no EU rights are being exercised, then no breach would occur.

Child protection

Parts 4 and 5 of the Children Act 1989 (care and supervision, and protection of children) remain in force in Wales and investigations relating to children who are suffering, or are at risk of suffering, significant harm under Section 47 Children Act 1989 are unchanged by the Social Services and Well-being (Wales) Act 2014. No immigration exclusions (in regard to nationality or immigration status) apply to parts 4 and 5 of the Children Act 1989 and as such, local authorities should follow standard procedures where families subject to immigration control are the subject of these proceedings.

The 2014 Act includes a new duty under its Section 130 on local authorities and their relevant partners (including the police, other local authorities, probation and the NHS) to report to the local authority if they have reasonable cause to suspect that a child is experiencing or at risk of abuse, neglect or other forms of harm and has needs for care and support.  Such reports will engage the section 47 investigation and associated powers under Part 5 of the Children Act 1989.

Provision of services

Once the child’s needs for care and support have been determined and those needs meet the Act’s eligibility criteria, the local authority is required to provide support to meet their needs. Section 34 Social Services and Well-being (Wales) Act 2014 details the kinds of support that could be provided by local authorities to meet the eligible needs of a child, which includes accommodation in a care home, children’s home or premises of some other type and payments.[6] The duty to provide information and advice under Section 17 of the Act continues for the period eligible children and their families are provided with care and support. The local authority must prepare a care and support plan for eligible children and families which identifies their desired outcomes, what actions will be taken by the family and the local authority, what needs will be met through the delivery of care and support, how progress will be monitored and measured and what financial and other resources will be required.

In determining the level of subsistence provided to NRPF families under Section 37 Social Services and Well-being (Wales) Act 2014, the amounts provided under similar statutory provisions (e.g. Section 4 IAA; Section 17 Children Act 1989) and the case law on this question is illustrative. There is no statutory guidance on the level of support or the provision of accommodation under Section 37 Social Services and Well-being (Wales) Act 2014 nor Section 17 Children Act. Case law has ruled that the Homelessness Code of Practice does not apply to those provided with accommodation under Section 17 Children Act 1989 (C, T, M & U v Southwark Council [2016] EWCA Civ 707) but that the provision of long-term B&B placements was ‘regrettable’, a more appropriate option being self-contained accommodation. Whilst the question of subsistence payments under Section 17 Children Act 1989 has been the subject of significant litigation, the courts have not set a specific amount. Rather it has been argued that the level of support should be determined by local authorities as part of the needs assessment, specific to the circumstances of children and families (C ,T, M & U v Southwark Council [2016] EWCA Civ 707); and that whilst having a standard subsistence rate across the local authority is lawful, it should allow for exceptions to be made in light of specific circumstances (PO v Newham Council [2014] EWHC 2561). In the case of Mensah & Bello v Salford City Council [2014] EWHC 3537, it was argued that providing at subsistence rates pegged to Section 4 Immigration and Asylum Act 1999 rates (£35.39 per person, per week) would meet the basic subsistence needs of families.

Local authorities in Wales do not receive any central government funding to account for the specific costs incurred by NRPF families being supported under Section 37 Social Services and Well-being (Wales) Act 2014.

Potential implications of the Immigration Act 2016 on the duties of Welsh local authorities to destitute migrant children and families

The Immigration Act 2016 received Royal Assent on 12 May 2016 and some of its provisions have since come into force. The Act makes significant changes to the asylum support system and the duties of local authorities in England to children and families and care leavers under the Children Act 1989. Whilst the amendments are not currently set to apply in Wales under the Social Services and Well-being (Wales) Act 2014, the Immigration Act 2016 allows for regulations to be made to extend the amendments to Wales. Amendments to the asylum support system, however, will take effect in Wales, although they are yet to be implemented. In this section, amendments to the Children Act 1989 in respect of migrant children and families’ access to local authority services are detailed, and these may reflect future changes to the Social Services and Well-being (Wales) Act 2014 should regulations be made to extend the measures to Wales. It is not yet known when the amendments to the Children Act 1989 will come into force in England (or any potential extension to Wales), and to the asylum support system across the UK.

What are the amendments?

Under The Immigration Act 2016 families where the parent does not have immigration permission (including refused asylum seekers and visa overstayers) and Zambrano carers will not be entitled to Section 17 Children Act 1989 financial and accommodation support. However if they are destitute and meet certain conditions, local authorities will have a power to support children and families under Paragraph 10A of Schedule 3 Nationality, Immigration and Asylum Act 2002. These conditions are that they have made a non-asylum application to the Home Office which has not yet been determined; or they are in time to lodge a non-asylum in-country appeal; or they have a non-asylum appeal pending, they are appeal rights exhausted and have not failed to cooperate with arrangements to enable them to leave the UK; or the provision of support is necessary to safeguard and promote the welfare of a dependant child.

The situation for Mobile EU citizens and refugees whose status was granted by another EEA state will remain unchanged: they will only be eligible for Section 17 Children Act 1989 financial and accommodation support if withdrawing that support would constitute a breach of rights under the ECHR and under EU law. A human rights assessment will be required in such circumstances. They will not be eligible for support from a local authority under Paragraph 10A of Schedule 3 Nationality, Immigration and Asylum Act 2002.

Additionally, the Immigration Act 2016 repeals Section 4 Immigration and Asylum Act 1999, ‘hard case’ asylum support for refused asylum seekers. Instead, support for destitute, refused asylum seekers with a ‘genuine obstacle to leaving the UK’ will be provided under Section 95A Immigration and Asylum Act 1999. The circumstances that constitute ‘genuine obstacles to leaving the UK’ will be detailed in forthcoming regulations. However, if they are ineligible for Section 95A Immigration and Asylum Act 1999 support, a local authority duty may arise under Paragraph 10A of Schedule 3 Nationality, Immigration and Asylum Act 2002 where they continue to be destitute. Changes to asylum support will take effect in Wales at the same time as they do in England because immigration legislation, under which this support is provided, is not devolved.

Further resources

Welsh Government Social Services and Well-being (Wales) Act 2014 homepage

http://gov.wales/topics/health/socialcare/act/?lang=en

Codes of Practice and Statutory guidance

Part 2 Code of Practice (General Functions) 

Part 3 Code of Practice (Assessing the Needs of Individuals) 

Part 4 Code of Practice (Meeting Needs) 

Part 4 and 5 Code of Practice (Charging and Financial Assessment)

Part 7 Guidance (Safeguarding)

Part 10 Code of Practice (Advocacy)

Part 11 Code of Practice (Miscellaneous and General)

Code of Practice on Measuring Social Services Performance

 

Non-statutory practice guidance and other resources

NRPF Network (2011) Assessing and supporting children and families and former looked-after children who have no recourse to public funds (NRPF)

http://guidance.nrpfnetwork.org.uk/reader/practice-guidance-families/

Care Council for Wales – Social Services and Well-being (Wales) Act 2014 Learning Hub

The NRPF Network and COMPAS (University of Oxford) have developed a webtool to assist destitute families and their advisors to navigate the relevant legislation and facilitate their access to support. Although the tool sets out the English law in the ‘help from social services’ section, they do make reference to the equivalent Welsh legislation so it may be of use in Wales. Practitioners are advised to refer to the Social Services and Well-being (Wales) Act 2014 instead of the Children Act 1989 when using the tool: http://migrantfamilies.nrpfnetwork.org.uk/  

 

Key legislation

Social Services and Well-being (Wales) Act 2014

http://www.legislation.gov.uk/anaw/2014/4/contents

The Care and Support (Eligibility) (Wales) Regulations 2015

http://www.legislation.gov.uk/wsi/2015/1578/regulation/4/made

Children Act 1989

http://www.legislation.gov.uk/ukpga/1989/41/contents

Immigration and Asylum Act 1999

http://www.legislation.gov.uk/ukpga/1999/33/contents

Nationality, Immigration and Asylum Act 2002

http://www.legislation.gov.uk/ukpga/2002/41/contents

Human Rights Act 1998

http://www.legislation.gov.uk/ukpga/1998/42/introduction

 

Research

Price, J and Spencer, S (2015) Safeguarding children from destitution: local authority responses to families with no recourse to public funds

http://www.compas.ox.ac.uk/fileadmin/files/Publications/Reports/PR-2015-No_Recourse_Public_Funds_LAs.pdf

 

[1] Please see the following website to search for legal advice near to you: http://find-legal-advice.justice.gov.uk

[4] R v Northavon District Council [1994] AC 402 and R (G) v Barnet LBC [2003] UKHL 57

[5] This was enacted in The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016

 
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