Section 17 of the Children Act 1989 imposes a general duty on local authorities to safeguard and promote the welfare of “children in need” in their area.

To fulfil this duty section 17 gives local authorities the power to provide support, including accommodation and financial subsistence to families with “children in need”, even if they have no recourse to public funds. Many migrant children live in families subject to this condition. The power under section 17 can in some circumstances require a local authority to support a family as a whole and to promote the upbringing of the child within the family unit (section 17(1)(b)).

Establishing eligibility for section 17 support

1. Which local authority should the family approach?

Physical presence in the local authority’s area is all that is needed to trigger the section 17 duty. The family should approach the local authority with which the child has the greatest connection. This could be the local authority where they live, or where the children go to school. In some cases, a child might have a connection to more than one local authority (e.g. live in one area and go to school in another). In such cases, the family can approach either local authority: R (Stewart) v London Borough of Wandsworth & Ors [2001] EWHC 709 (Admin).

If the family is already receiving support from one local authority, they should approach that authority regardless of where they live.

2. Are the children “in need”?

The definition of “in need” in the Children Act is very broad: a child will be “in need” if he or she cannot achieve or maintain a reasonable standard of health or development. A child will also be in need if they are disabled.

All children have needs that must be met by other people, but for the purposes of section 17(10) of the Children Act 1989, a child “in need” has needs that will not be properly met unless social services provides support.

A child whose family does not have adequate accommodation or sufficient income to meet their essential living needs will almost certainly be “in need”.

3. A “power” or a “duty”?

If a child is assessed as being “in need”, the local authority can provide support to the family.

The local authority has a duty to safeguard and promote the welfare of children in general within its area. However, it does not have a duty towards any individual child in need. Instead, in the first instance it has a power to support any individual child, and a duty towards children in need in general.

This means that the local authority must use its discretion when deciding whether or not to provide support to an individual child in need. It can take other things into account when making this decision, like its own resources. For example, a local authority may decide not to provide support to a family with a child in need because it is facing budget cuts and cannot afford to help.

However, in some cases this “power” can become a “duty”. Where a local authority’s power becomes a duty to support, it loses its discretion and it has to act in order to safeguard and promote the welfare of an individual child.

A power will become a duty where a failure to provide support would breach rights under the European Convention on Human Rights (ECHR).

This could happen in a number of situations, but you are most likely to encounter this where a failure to provide support would leave the family destitute. This means the family:

• Does not have adequate accommodation and does not have means of securing adequate accommodation, or
• Does not having enough money to meet its basic living needs

If a child or vulnerable person is destitute, this is likely to constitute a breach of Article 3 ECHR. See R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66.

There could also be other breaches of the ECHR, such as where a family is unable to live together even though they are not homeless. For example, a child could be staying with a friend from school and the mother is staying with a relative because they have no way of being together. In this situation, there may be a breach of Article 8 ECHR (right to a private and family life) even if they are not destitute.

4. Are the adults excluded due to immigration status?

Some adults are excluded from accessing support under section 17 because of their immigration status.

Schedule 3 exclusion

If a parent falls into one of the following categories, they are excluded from accessing support by schedule 3 of the Nationality, Immigration and Asylum Act 2002, unless the situation is so serious that a failure to provide support would breach human rights. The excluded categories are:

• Granted refugee status by another EEA state
• Refused asylum seekers who have failed to cooperate with removal directions
• People in the UK in breach of immigration laws (except asylum seekers). This means:
  • present in the UK without a right of abode or leave to enter/remain
  • not exempted from the need to have leave (e.g. diplomats, forces personnel) (R (AW) v Croydon LBC [2005] EWHC 2950 (Admin))

Section 122 exclusion

A person who is seeking asylum and who is eligible for support under section 95 of the Immigration and Asylum Act 1999 is excluded from accessing cash and accommodation from social services, by section 122 of the Immigration and Asylum Act 1999.

A person is likely to be eligible for section 95 support from the Home Office if they are destitute and have a pending asylum application or appeal, or they have been refused asylum but had children before their asylum claim was refused.

If they have a disabled child in their household, they may be able to access support under section 17 for their care needs. However, they will not be able to access cash or accommodation.

Social workers do not always understand a person’s immigration status and therefore may wrongly conclude that a person is subject to the Schedule 3 or section 122 exclusion.

5. Are there any exceptions to this exclusion?

If the family falls into one of the excluded categories (above), they may still be able to access section 17 support if failing to provide support would breach a person’s rights under the ECHR or EU law.

Where there are no alternative forms of support, the family is not able to leave the UK, and the family is destitute, failure to provide support may:

• amount to “inhuman or degrading treatment” contrary to Article 3 of the ECHR or
• amount to an unjustified interference with their right to a private or family life contrary to Article 8 ECHR.

In such cases, the adults will not be excluded by Schedule 3.

6. Can the local authority avoid breaching human rights by advising or assisting return to the country of origin?

Local authorities will consider whether any human rights breach could be avoided by returning the family to their country of origin. If they can discharge their duty in this way, long-term support will not be provided.

The local authority will carry out a ‘human rights assessment’ which will look at whether there are any practical or legal barriers to the family’s return. Any such barriers may mean that local authorities have to help a family in the longer term.

Practical barriers

In some cases, the only barrier may be a practical obstacle such as being unable to afford the airfare or not owning a passport. Other practical barriers could be where someone is in the late stages of pregnancy, or has a serious medical condition that prevents travel.

If this is the case, the local authority could offer to provide support to meet the costs of return, or provide support on a temporary basis while the family engages with a voluntary returns programme.

Legal barriers

Legal barriers could include where the family is waiting for the Home Office to make a decision on an application for leave to remain (that is not hopeless or abusive) based on human rights grounds, as in Birmingham City Council v Clue [2010] EWCA Civ 460. Similarly, where the family is appealing against an immigration decision (and the appeal is not hopeless or abusive) or proceeding with a judicial review then there is also a legal barrier to return.

Where there is a barrier to the family’s return, the local authority will not be able to discharge its duty by advising or assisting the family to return to their country of origin. They will have to provide support.

If no legal or practical barrier has been identified, the local authority should consider for itself whether returning the family to their country of origin would breach their human rights.

If no barriers or human rights breaches are identified, and the family does not want to return to their country of origin and refuses the local authority’s assistance, the local authority can discharge its duties under section 17 and avoid breaching the family’s human rights without providing support. If this refusal results in the continued destitution of a child, this may be a safeguarding concern and the local authority may look into care proceedings for the child.

Section 17 procedure

Section 17 support is normally provided by the social services department of the local authority. However, some local authorities have special teams set up to deal with section 17 support. These are usually called the NRPF Team or the Nil Recourse Team, but the structure varies between local authorities.

Support under section 17 is accessed via an assessment. First, the local authority should assess whether the child is in need, and then take a decision about what services to provide if the assessment concludes that the child is in need.

The assessment

A family, or their representative, can request a Child in Need assessment by approaching the social services department or NRPF Team of the relevant local authority. The local authority must carry out the assessment if they believe that the child may be in need: see R (W) v London Borough of Barnet [2003] UKHL 57. This is relatively low threshold and social services can only refuse to assess if there is no realistic prospect that the child is in need.

The local authority should decide what type of response is required and acknowledge the request within one working day. They should then carry out the assessment in a timely fashion appropriate to the urgency of the situation. The maximum time limit for completing the assessment is 45 working days, but should a social worker identify a particular need they should not wait until the end of the assessment before commissioning services: see the Working together to safeguard children guidance at paragraph 83. If the family is facing destitution or street homelessness, an assessment is likely to be required urgently.

If the family fails to provide enough information to demonstrate that the children are in need, social services may conclude that it has no power to provide support: MN & Anor v London Borough of Hackney [2013] EWHC 1205 (Admin) and R (O) v London Borough of Lambeth [2016] EWHC 937 (Admin). This can include providing information about where they have previously stayed, who has provided support, and why support can no longer be provided.

If the parents may be excluded under schedule 3 of the Nationality, Immigration and Asylum Act 2002, social services may also carry out a further human rights assessment (see below).

Interim support

In urgent cases local authorities are able to provide support on a “without prejudice basis” pending the outcome of their assessment. If this is required, you or your client should let the local authority know what date support will be needed (e.g. the date they will become homeless) and ask for the assessment to be completed by this date. Or, if it is not possible to complete the assessment within this timeframe, for support to be provided on a without prejudice basis until the assessment is completed.

Requesting an assessment

We recommend that your client goes to the local authority in person. You can write a supporting letter for your client to take. There are letter templates available on the Project 17 website.

If possible, it can be helpful if you (or a colleague) goes with your client to ask for support. This may help give your client confidence. You can also make a note of what the officers say, and if an assessment is refused, you can advocate on your client’s behalf.

To help the local authority conduct their assessment it is important that your client provides as much evidence as possible, is open and honest with the local authority and does not hold back information.

Also on the Project 17 website is a list of some of the evidence your client might be able to provide. Where possible, original documents should be provided. Sometimes things get lost, so it is a good idea to make a list of the documents given to the local authority.

Ask them to make copies and return the originals to your client. If the situation is very urgent, your client should go to the local authority straight away, even if they do not have all the relevant documents.

During the assessment

It is very important that people provide as much information as possible to enable to the local authority to carry out their assessment. The process can be intrusive and unpleasant, however any resistance may be used by social services as refusal to cooperate with the assessment and could later be used as a reason to refuse support.

The applicant can ask the social worker for their name and contact details so they can stay in touch with them. During the assessment, they can also take note of what is said as this may be useful later.

Following the assessment

At the end of the assessment the applicant should ask the social worker what the next steps are and when they will be given a decision. Any decision should be given in writing and they should ask for a copy of the child in need assessment.

Reviewing support

Financial support

The amount provided should not be less than section 4 asylum support rates, which are currently £47.39 per person per week. It is possible to challenge subsistence that is lower than this, and sometimes possible to challenge subsistence that is higher if your family has specific needs that result in higher costs, e.g., if your transport costs are very high because your accommodation is far from your child’s school.

Accommodation

If the accommodation is very poor quality, you can request a visit from an environmental health officer from to assess the property. If they conclude the property is unfit, then this is a compelling tool to getting improved accommodation. You can also check if the property meets the test for statutory overcrowding.

If the support provided is inadequate or unsuitable, you should request a fresh assessment stating why this is necessary. If social services refuse to undertake a fresh assessment or carry out a new assessment but do not change the level of support, then you may need legal advice from a community care solicitor.

You can find template letters on Project 17’s website that can be used to challenge inadequate support.

Challenging social services’ decisions

There are often delays in carrying out assessments and providing decisions. Assessments are sometimes inaccurate, and decision-making can be of poor quality. Once support is provided, it is sometimes inadequate to meet the needs of the child or individual. There are two ways of challenging decisions from the local authority.

Judicial review

Judicial review is a legal procedure that enables the court to assess whether the local authority has acted lawfully.

The local authority is required to act fairly, reasonably, rationally and in accordance with its statutory duties and human rights obligations. If it fails to do this, any decision taken by the local authority can be challenged by judicial review.

This is likely to be the most appropriate way to challenge decisions to refuse support or to provide inadequate support. A successful judicial review is likely to remedy the situation relatively quickly and may also result in the local authority improving its practice or policies in the future.

Judicial review must be brought promptly, within three months of the date of the decision, although in many cases the threat of homelessness and extreme poverty will mean that you will need to take action much more quickly.

Judicial review can only be undertaken by a solicitor. You should contact a public law or community care solicitor for advice. If you are destitute, you should qualify for legal aid, so you will not have to pay for a solicitor to bring a challenge.

Complaint

Making a complaint can be an effective remedy for issues that have now been resolved, such as a previous delay in carrying out an assessment. However, complaints tend to take a long time to be determined, so if the matter is urgent and ongoing, complaining is unlikely to be the best way to address the issue.

Most local authorities’ complaints procedures are explained on their websites. If you are still unhappy after having gone through the complaint’s procedure, you can refer the matter to an Ombudsman.

For more information on making complaints, see our resources and template letters on Project 17’s website.

This article is, with permission, adapted from a Project 17 factsheet, which is among the charity’s resources for professionals working with families with no recourse to public funds