Contents:
This page looks at advising people who may be able to get help from the social work department if they are ineligible for benefits or housing. Only households including children or adults 'in need' are covered, as the social work department has no remit to help others (the law on young people leaving local authority care is not covered here). It includes some references to relevant case law, and links to the relevant regulations.
What are the housing and housing benefit rights of people with social care needs?
Generally, most people with social care needs get housing and benefit help from local authorities if they need it. But if they are not eligible for housing allocation, homelessness services or housing benefit, and are at risk of homelessness and destitution, then they may have to turn to the social work department for help. This is essentially only a safety net for the most vulnerable, and there are legal restrictions on who can be helped, although help must be provided if it is necessary to avoid a breach of human rights.
Help for families with children is provided under the Children (Scotland) Act 1995 section 22 with powers for local authorities to offer money or goods in kind to safeguard and promote the welfare of 'children in need'. Local authorities must also accommodate a child if s/he has no parents able or willing to accommodate him/her: this is under s25 of the same Act.
Help for vulnerable adults is provided under section 12 of the Social Work (Scotland) Act 1968. The social work department must assess the needs of any person who contacts them who appears to be in need of community care services:
'...where the giving of assistance ...would avoid the local authority being caused greater expense in the giving of assistance in another form, or where probable aggravation of the person's need would cause greater expense to the local authority on a later occasion.'
But there are restrictions on who can receive this help, based on immigration status.
Anyone with social care needs can get housing from a housing association, but may face problems if they cannot pay the rent and cannot access housing benefit.
Restrictions on social work department help
The social work department is instructed by law (the Nationality Immigration and Asylum Act 2002) not to accommodate and support certain groups of people, unless they must do so to avoid a breach of human rights. These restrictions do not apply to children, but may apply to their parents. The people who may not usually be helped are:
- Persons with refugee status elsewhere in the EEA but not in the UK.
- Nationals of other EEA states unless they are in the UK exercising their treaty rights. This means that EEA workers and self-employed people, their family members and EEA students may be offered services but those who have no right to reside may not be.
- Refused asylum seekers who do not cooperate with removal directions.
- People in the UK in breach of the immigration laws who are not asylum seekers (including people who have overstayed their leave or entered illegally).
But people in these groups should be helped in exceptional circumstances:
- Accommodation and support can be offered to EEA nationals with children while arrangements are made to sort out their travel home.
- Accommodation and support can be offered to people with children who are awaiting deportation.
- Accommodation and support must be offered if it is necessary to avoid a breach of human rights.
- Children should always be accommodated (in other words, even if a parent is excluded a child should be accommodated or looked after).
Families with children who are applying for asylum will generally be the responsibility of the Home Office to house and support. Vulnerable adults, however, should be accommodated and supported by the social work department to which they apply for help. If they have children, the Home Office will contribute towards the costs of accommodation and support.
Problems with getting social work department support and accommodation
Getting help from the social work department in these circumstances may be difficult and those needing it should get advice from a solicitor, advice centre or specialist organisation. It is also an area in which case law is continually developing.
It is important to stress that the social work department should always assess the need when approached, doing either a Child In Need assessment under the Children (Scotland) Act 1995 or a Community Care assessment for a vulnerable adult. Accommodation and support should be provided while this assessment takes place, if it is needed.
Generally, the social work department will contact the Home Office if approached, in order to tell them about the application and check on status. They are obliged to contact the Home Office if considering accommodating somebody under one of the exceptions noted above.
The social work department can, if considering accommodating someone under one of the exceptions, offer the fare home for the applicant and his/her family, as long as no breach of human rights would occur as a result.
An example of a breach (in this case a breach of Article 8: the right to family life) occurred where the offer was made to the child and her non-resident father, and so was unacceptable (and the local authority was told to provide accommodation and support while the Home Office dealt with an application to stay): R (M) v Islington LBC [2003] EWHC 1388 Admin.
If an applicant is considering applying to stay in the UK on human rights or related grounds, this application is usually dealt with via the asylum system if the human rights are those against cruel or degrading treatment (article 3) but not if they are those relating solely to family and private life (article 8, for example long residence of children). Once an application for asylum has been made, then the Home Office are generally responsible for support, unless the applicant is a vulnerable adult.
If the social work department is approached for help before any application is made, then they have to assess whether a breach of human rights would occur if support was refused and can take their departmental budget into account in making that decision. They can offer help to make an application to the Home Office (such as travel and overnight accommodation). But if an application to the Home Office to stay on any human rights grounds has been made then social work has to accommodate and support until either a decision is made or the Home Office make the necessary arrangements via the asylum support system (Birmingham City Council v Clue [2010] EWCA Civ 460 (29 April 2010) is the major case on this). This is because they cannot 'defeat' the human rights application to stay by refusing support.
Social work departments should also support families who have a right to reside based on the presence of a UK citizen child (see advising people with limited leave to remain for more on this) if they are unable to access benefits or housing in other ways (R (U) v Newham LBC [2012] EWHC 610 (Admin) 23 February 2012). Families with this type of right to reside are entitled to work and claim contribution-based benefits but are ineligible for a housing allocation, homelessness services and most means-tested benefits. However, if their application for housing or homeless assistance was made before 8 November 2012 they are eligible for help.
