Schedule 3 of the Nationality Immigration and Asylum Act ...

1 1 Schedule 3 of the Nationality Immigration and Asylum Act 2002 and the care Act 2014 Current position Schedule 3 Nationality Immigration and Asylum Act 2002 currently excludes the following groups of migrants from specified types of Social Services support: A person with refugee status granted by a non-UK EEA country and any dependents; Non-UK EEA nationals and any dependents; Failed Asylum seekers who have failed to comply with removal directions A person unlawfully present in the UK (including those whose visa has expired and refused Asylum seekers who did not claim Asylum at a port of entry). A failed Asylum seeker with family who has not taken reasonable steps to leave the UK voluntarily The exclusion does not apply if the exercise of a duty or power is necessary for the purpose of avoiding a breach of a person s rights under the ECHR or European Community Treaties. The services provided by Adult Social care that are excluded under Schedule 3 are: Section 21 National Assistance Act 1948 (accommodation) Section 29 National Assistance Act 1948 (welfare) Proposed amendment: The care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015 67.

2 (1) Paragraph 1(1) of Schedule 3(a) to the Nationality , Immigration and Asylum Act 2002 (ineligibility for support) is amended as follows. (2) In paragraph (e) omit section 254 of, and Schedule 20 to, the National Health Service Act 2006, or . (3) Omit or at the end of paragraph (l); (4) After paragraph (m) insert , or (n) Part 1 of the care Act 2014 ( care and support provided by local authority). 2 Implications of excluding Part 1 of the care Act 2014 Part 1 of the care Act 2014 includes the following provisions: Section 2 Duty to prevent needs Section 4 Providing advice and information Section 9 Duty to assess needs Section 10 Duty to assess a carer s needs Section 18 Duty to meet needs Section 19(3)&(4) Power to meet urgent needs or meet needs when an adult is terminally ill Section 20 Duty and power to meet carer s needs The exclusion of section 18 would be comparable to the current exclusion of sections 21 and 29 National Assistance Act 1948.

3 However, sections 9 and 19(3) are provisions that exist in current legislation which are not currently excluded under Schedule 3. Sections 2, 4, 10 and 20 are new duties imposed by the care Act which will also be excluded. The scope of the exclusions is therefore much wider than the current position, and we outline our concerns about this below. Section 9 Duty to assess needs & Section 19 Power to meet urgent needs The NHS and Community care Act 1990 sets out the duty to assess needs at section 47(1) and provides the power to meet urgent needs at section 47(5), neither of which are excluded under Schedule 3. Excluding sections 9 and 19 of the care Act would therefore extend the scope of the current exclusions. This is a concern as: It appears that the local authority would not be able to undertake a needs assessment when an adult is a migrant in an excluded category, without first determining that carrying out an assessment is necessary for the purpose of avoiding a breach of a person s human rights or rights under the Community Treaties.

4 The community care / needs assessment provides a key basis for the human rights assessment undertaken to establish whether the exception to Schedule 3 applies. Although local authorities are allowed to undertake the human rights assessment first, in practice this rarely happens due to the key issues that require consideration often being ascertained in the needs assessment. The exclusion of section 9 will force local authorities to undertake human rights assessments without having all the necessary information required to be able to come to comprehensive and lawful conclusions. Local authorities currently check Immigration status with the Home Office in order to establish whether the exclusions apply, which can take several days (five working days being the agreed service standard for obtaining checks via NRPF Connect and Evidence and Enquiry ). This may result in delays in undertaking assessments for adults who are not excluded by Schedule 3, whilst the local authority is establishing what their Immigration status is.

5 3 It is unclear whether the local authority would be able to exercise its power to meet urgent needs (for example by providing accommodation to prevent homelessness) pending the outcome of the status check and/or human rights assessment, should this be required. It would be sensible for local authorities to use this power to prevent homelessness whilst establishing whether the exception to Schedule 3 applies. The power to meet urgent needs is important to retain as: There are many scenarios that arise where the local authority uses this power to prevent homelessness and meet urgent needs, such as presentations out of hours. As the care Act sets out no timescales for undertaking assessments, there is concern that as Social Services departments get used to this radical change in assessment practice, there will initially be delays in concluding assessments. The power to provide services pending an assessment is necessary to prevent homelessness and meet urgent needs.

6 Section 10 Duty to assess a carer s needs & Section 20 Duty and power to meet carer s needs Currently the provisions allowing a local authority to provide support to carers are not currently excluded under Schedule 3. However the care Act creates a new duty and greater rights for carers that currently do not exist. Carer s assessments may be undertaken as a combined assessment with the person who is presenting with care needs. Under section 18(7) local authorities are not required to meet needs that are being met by a carer. This exclusion potentially presents a new burden on local authority NRPF service provision. As the threshold for assessing a carer will be lower, the number of people that the local authority will be required to assess is unknown. However, the local authority would be required to undertake a human rights assessment for a carer who is excluded under Schedule 3, regardless of whether the person they are caring for is excluded or not.

7 Complicated scenarios will therefore arise when either the adult or carer or both are migrants excluded by Schedule 3, and subject to a human rights assessment. Guidance on how to approach cases in the following circumstances is therefore needed with a focus on how section 18(7) applies in such instances: Carer excluded by Schedule 3 + adult with needs is not excluded Carer excluded by Schedule 3 + adult with needs is excluded (with each subject to individual human rights assessments) Carer is not excluded by Schedule 3 + adult with needs is excluded Section 2 Duty to prevent needs & Section 4 Duty to provide information and advice These are new duties placed on local authorities. It appears that the local authority would not be able to take steps to prevent needs, or provide advice and information, when an adult is a migrant in an excluded category, without first determining that such steps are necessary for the purpose of avoiding a breach of a person s human rights or rights under the Community Treaties.

8 Under section 21 care Act there is no duty to prevent needs when a person s needs arise from destitution alone. However, this only applies to migrants that are subject to Immigration 4 control . Not all migrants excluded under Schedule 3 are subject to Immigration control , for example, EEA nationals and family members of EEA nationals. Existing health and care needs are often exacerbated by destitution and homelessness. Excluding groups of migrants from being able to receive preventative services, or being signposted to services that may assist them, may result in a greater burden on the local authority at a later stage, when different conclusions to the human rights assessment and needs assessment may be reached. Recommendations If it is not the intention to exclude all the additional provisions of Part 1 of the care Act 2014 , to amend the care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015, to replicate the exclusions as they current stand.

9 If it is the intention to exclude the full provisions of Part 1 of the care Act 2014 then the Home Office and/or Department of Health to work with the care Act lawyers group and NRPF Network to provide guidance to enable local authorities to be clear about how the exclusion is to be implemented in light of the issues outlined above. The Home Office and/or Department of Health to undertake an equality impact assessment in order to establish whether any groups with a protected characteristic under the Equality Act 2010 might be disadvantaged by the extension of scope of the exclusions. NRPF Network 13 March 2015 Islington Town Hall, Upper Street, N1 2UD Tel: 0207 527 7121 Email: Web.