Advising people with social care needs
Contents:
This page looks at advising people who may be able to get help from social services if they are ineligible for benefits or housing. Only households including children or adults 'in need' are covered, as social services have 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, people with social care needs in Scotland get housing help from their local authority and benefit help from the Department for Work and Pensions if they need it. In Northern Ireland, these services are by the Housing Executive and the Department for Communities respectively. But if they are not eligible for housing or benefit help, and are at risk of homelessness and destitution, then they may have to turn to social services 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 from the social work department in Scotland
Help for families with children in Scotland 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 section 25 of the same Act.
Help for vulnerable adults in Scotland is provided under section 12 of the Social Work (Scotland) Act 1968 and in appropriate cases assistance can include accommodation with nursing care (section 13A). By section 12 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 for anyone who is excluded from benefits (s.12(2A) and s.13A(4)).
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 universal credit or housing benefit.
Help from an HSC trust in Northern Ireland
Help for families with children in Northern Ireland is provided under the Children (Northern Ireland) Order 1995 with powers under article 18 of the Order for a Health and Social Care (HSC) trust to offer money or goods in kind (see paras (6),(6A)-(6C)) to ensure that the welfare of 'children in need' is protected. The HSC trust must also accommodate a child if s/he has no parents able or willing to accommodate him/her: this is under article 21 of the same Order.
In Northern Ireland, help for vulnerable adults is provided under Part 2 of the Health and Personal Social Services (Northern Ireland) Order 1972, in particular articles 7 and 15.
Under article 7 of the Order, the HSC trust must make arrangements as it considers necessary for the care and aftercare of persons suffering from illness. Under article 15 the HSC trust must provide advice, guidance and assistance, and make such arrangements for accommodation and/or other facilities as it considers necessary and adequate to a person in need. The accommodation or facilities usually given in kind but can be given in cash ‘in exceptional circumstances constituting an emergency’.
However, the HSC trust must not provide support to anyone under article 7 or article 15 who is excluded from benefits because they are subject to immigration control and their needs for care and support have arisen solely because of destitution or ‘the physical effects, or anticipated physical effects of being destitute’ (articles 7(3) and 15(6)).
Restrictions on social work/HSC trust help
A social work department/HSC trust cannot provide accommodation or support to certain groups of people based on their nationality/immigration status (Nationality, Immigration and Asylum Act 2002, schedule 3, para 1(1)), unless they must do so to avoid a breach of their human rights (schedule 3, para 3). These restrictions do not apply to children but may apply to their parents. The groups affected are:
- persons with refugee status elsewhere in the EEA but not in the UK.
- 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 (such as a person who is an illegal entrant or overstayer). But note that help from social services does not count as ‘public funds’ (Immigration Rules, para 6.2).
But a person in these groups should be helped in exceptional circumstances:
- Accommodation and support can be offered to a person with a child who is awaiting deportation.
- Accommodation and support must be offered if it is necessary to avoid a breach of a person’s human rights.
- Children should always be accommodated (in other words, even if a parent is excluded a child should be accommodated or looked after).
In Northern Ireland, Department of Health guidance to HSC trusts is that each case should be assessed individually and legal advice sought. In making the assessment, due consideration should be given to human rights and equality issues.
Problems with getting social services support and accommodation
Getting help from the social work department/HSC trust 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. In Scotland, if the circumstances are such that a duty arises, then the local authority is responsible for providing accommodation; but in Northern Ireland, it is unclear if the responsibility lies with the Housing Executive or HSC trust.
It is important to stress that the social work department/HSC trust should always carry out an assessment of the child’s or vulnerable adult’s needs when approached. Accommodation and support should be provided while this assessment takes place, if it is needed: R (TMX) v LB Croydon & Another [2024] EWHC 129 (Admin).
The social work department/HSC trust can, if considering accommodating someone under one of the exceptions, offer the fare home for the applicant and his/her family, if 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.
Once a claim for asylum has been made, the Home Office are generally responsible for support unless the applicant is a vulnerable adult. If the social work department/HSC trust is approached for help before the claim is made, then they must 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). This is because they cannot 'defeat' the human rights application to stay by refusing support.
The social work department/HSC trust should also provide support to adults with EU pre-settled status whose right to reside is based on the presence of a UK citizen child ( a ‘Zambrano carer’) if they are unable to access benefits or housing in other ways: R(U) v Newham LBC [2012] EWHC 610 (Admin) (see case note, Legal Action, May 2012, page 35). Families with this type of right to reside are eligible for a housing allocation or homelessness assistance in Scotland but not Northern Ireland, and are excluded from universal credit, housing benefit and state pension credit in both Scotland and Northern Ireland.
Status of case law relating to England
All of the cases cited above relate to the law in England. These cases are not binding in Scotland and Northern Ireland but are likely to be followed by the social care authority and be considered persuasive in any legal challenge. In particular, the provisions under the Nationality, Immigration and Asylum Act 2002 (restrictions) apply across the UK.
