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National Assistance Act Support - entitlement

The National Assistance Act and other community care legislation (revised 21.04.09)

Under section 21 of the National Assistance Act 1948 local authorities have had a duty for many years to support those who have a local connection with their area who are in need of accommodation and services by reason of age, disability or some other substantial reason.

This duty was amended in 2002 so that it is not owed in situations where someone is in the UK as an illegal entrant (other than an asylum seeker with a current claim) or is in breach of removal directions.

There is other community care legislation of which asylum seekers may take advantage without reference to their status, whether that be treatment, adaptations, disability bus passes etc. The assessment of care needs is of necessity quite complex and one should obtain the advice of an experienced advisor in this area, as well as looking at sources such as the LAGSupport for Asylum Seekers book.

What is the criteria for help?

Following the decision in the R(M) v Slough case in 2008, a local authority may only help destitute applicants who are in need of care and attention that will be provided in the accommodation they supply.  This replaces the previous ('destitution plus') test.

The care and attention means the applicant has a need to be 'looked after' - for instance they need regular care or supervision in order to avoid coming to harm.  Each case needs to be assessed individually but it can cover both mental health problems where an individual may need regular visits from a psychiatric social worker or CPN, as well as a physical disability where someone might need a carer or nurse to visit to help in connection with their bodily functions or to enable them to cook etc.

Social Services should assess in each case - if you have difficulty getting them to assess the applicant use the letter in the downloads section or the Asylum Support Appeals Project pro forma letter.

Pre-decision Asylum Seekers

The position for pre-decision asylum seekers is best outlined in the 'Support for Asylum Seekers' guide produced by the Legal Action Group - LAG.

Additionally, UKBA Asylum Policy Bulletin 82 has examples of cases that still ought to be the responsibility of local authorities under the community care legislation, even if the asylum seeker is currently receiving UKBA Asylum Support payments

Failed Asylum Seekers

Failed asylum seekers who have exhausted their appeal rights are excluded from UKBA Asylum Support payments support. They are also excluded from entitlements to be supported and accommodated under the National Assistance Act if:
a. they are failing to comply with removal directions; or
b. they have entered the UK unlawfully (typically where they did not claim asylum upon arrival
except where it is necessary to avoid a breach of their human rights - in particular freedom from inhuman and degrading treatment.

The position in relation to UKBA Asylum Support payments is complicated. This is because failed asylum seekers may only apply for section 4 support in very limited circumstances:

  • If they have agreed to return voluntarily to their home country and are taking all necessary steps to do so
  • If they are unfit to travel - this means unfit to get on the plane (and not that they would not get treatment abroad or ought to stay to get treatment in the UK) e.g. in the latter stages of pregnancy
  • If the Home Secretary declares that there is no safe route of return to the country to which the asylum seeker would be returned
  • Where the asylum seeker is mounting a challenge to the decision by way of judicial review
  • If support is necessary to avoid a breach of the asylum seeker's human rights. Again, this is most likely to occur when it would cause inhuman or degrading treatment for the asylum seeker to be destitute. The problem is that, except where the asylum seeker has got a credible fresh claim for asylum,UKBA may successfully argue that it is not causing the inhuman treatment because the asylum seeker may get support by agreeing to return home voluntarily.

Thus, two issues arise in relation to community care support:

  1. Can the local authority also refuse support on the basis that destitution (and a breach of human rights) can be avoided by the failed asylum seeker agreeing to return home and thus getting section 4 support?
  2. Can UKBA avoid supporting a failed asylum seeker under section 4 where they have a community care need such that the local authority is obliged to support them?

Can NAA support be refused to illegal entrants and overstayers?

In effect, yes, because of the 2002 Act provisions. However:

a. failed asylum seekers who claimed at the port of entry and are on temporary admission are arguably lawfully present in the UK, and thus may not be excluded by these provisions; or

b. it may be a breach of the human rights of a failed asylum seeker who would otherwise have a need for NAA support to be left destitute - even more so because of illness, age or disability; but

c. The destitution may arise only because the failed asylum seeker is failing to avail themselves of other support that could alleviate their destitution by failing to agree to return to their own country (i.e. section 4 support) ; BUT

d. even in those cases there may be cases where the extent of the disability etc is such that support should not be refused on article 3 grounds because it is one which, in case law, is such that in a civilised society it cannot be resisted.

Can NAA support be refused if section 4 support may be available?

This raises the same issue about primacy of legislation that was also raised in the Westminster CC decision in relation to conventional section 95 support.

This matter has already been settled in fact by the case of R(AW) -v- Croydon (see below), which stated that the Asylum Support Regulations allow support to be refused where some other means of support are available and this would include community care under the National Assistance Act.

However, a recent case regarding a failed asylum seeker, who was a pregnant women, indicated that UKBA may be the best people to decide through section 4 applications whether a new asylum claim is manifestly unfounded, and in these circumstances the council was able to refuse the application for NAA support where section 4 support was provided.  The same case also decided that a pregnant womean was not necessarily someone who needed 'care and attention'.

The other issue related to this is whether the same arguments apply in relation to a breach of human rights arising only where the asylum seeker is failing to avail themselves of other support, particularly by failing to agree to return to their own country. Again similar considerations as in section 4 cases may arise, such as the ability to travel, whether this argument is reasonable where they have a fresh case and so on.