Social Services’ Support – Adults

Local authorities have responsibilities to safeguard vulnerable adults who are in need of social care. This chapter sets out how a local authority will determine whether it has a duty to provide support to adults who are unable to access public funds, with a focus on when accommodation and financial support may need to be provided. 

Later chapters detail considerations for providing support to other vulnerable groups; identifying pathways out of destitution; reviewing and ending support.

9.1 Section12 of the Social Work (Scotland) Act 1968

A local authority has a duty and a power to support vulnerable adults (age 18 and over) under Section 12(1) of the Social Work (Scotland) Act 1968, and is required to assess the needs of any person who contacts them who appears to be in need of community care services:

‘It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities (including the provision or arranging for the provision of residential and other establishments) as they may consider suitable and adequate”

A person will be in need of community care services if they:

• Suffer from an illness or mental disorder (a mental illness, personality disorder or learning disability), or are substantially handicapped by a deformity or disability – section 94(1)
• Are in need of care and attention arising out of infirmity, youth or age – section 94(1)
• Are in need of care and attention arising out of drug or alcohol dependence, release from prison or other form of detention – section 12(6)

Section 12A(1) of the Social Work (Scotland) Act 1968 goes on to set out the following duties:

‘..where it appears to a local authority that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services, the authority:

1. Shall make an assessment of the needs of that person for those services; and
2. Shall then decide…whether the needs of the person being assessed call for the provision of any such services.’

The Social Work (Scotland) Act 1968 distinguishes between the duty to provide community care services to persons within their area who have been assessed as in need and the duty to fund them. The duty to provide the service arises from the physical presence of the person in the local authority area, however local authorities are only obliged to fund community care services for individuals who are ‘ordinarily resident’ in their area. A local authority that has provided services for someone who is not ‘ordinarily resident’ can therefore seek to cover the expenditure from another local authority. ⁷⁹

9.2 Types of Services that can be provided

A list of services that the local authority may be required to provide to meet the assessed needs of an individual who is chronically sick, disabled or has a mental disorder is set out in Section 2(1) of the Chronically Sick and Disabled Persons Act 1970. The Act specifies that assistance may include facilities, cash and residential accommodation. 

The Community Care and Health (Scotland) Act 2002 clarifies what aspects of social care constitute ‘personal care’ and defines in greater detail the types of services that local authorities may charge for or not. Although local authorities are not legally obligated to provide any of the services listed, the Act clarifies that they may not charge if they choose to do so. When a person requires community care services, but does not need accommodation, for example, because they are living with family members, then the local authority would need to follow its standard practice with regards to assessing whether the person would need to make a financial contribution. Additionally, if the services are being provided under section 12 of the Social Work (Scotland) Act 1968, and the person requiring care is in an excluded group, under Schedule 3 of the Nationality, Immigration and Asylum Act 2002, then assistance may only be provided to prevent a breach of human rights, so a human rights assessment may also be required.

For more information, see:

• 7 Social services’ support – exclusion

9.3 Providing Accommodation and Financial Support 

The Chronically Sick and Disabled Persons Act 1970 does not specify that ordinary accommodation can be provided to meet needs. However, the case of MacGregor v South Lanarkshire Council [2001] established that where a need is assessed, and there will be a major or significant risk to a person’s independence, health or wellbeing if a service is not provided, then the local authority will have a duty to meet this need if it cannot be met any other way. This principle could therefore be interpreted that where a person requires accommodation in order to receive care or other services to meet their needs, that must also be provided. ⁸⁰  It is also worth considering the impact of other environmental factors on risk to health – for example, the impact of very cold weather in the winter, and suitability of requiring an individual to make nightly presentations for accommodation rather than providing more stable longer-term accommodation.

When a person with NRPF does not have access to any financial support, the local authority may need to consider providing subsistence payments as part of the care plan in order to meet the person’s support needs. The type of accommodation that is provided to meet needs will impact on how much subsistence is also provided.

A publicly funded care home resident is allowed to retain a Personal Expenses Allowance from their income in order to cover the costs of personal items. The weekly rate for 2023/24 is £32.65. Local authorities may wish to refer to this when considering how much subsistence to provide to a person with NRPF who is living in a care home. ⁸¹

For people who are living in other types of accommodation, the local authority would need to be mindful of the broad scope it has to meet needs and should take a flexible approach to determine how much a person requires based on their individual needs. For example, where a weekly visit to a day centre that cannot easily be reached by public transport is linked to meeting a person’s identified need, then it may be appropriate to ensure that they are provided with additional funds to do this, on top of a subsistence payment to meet their basic living needs.

The provision of subsistence support would also need to be sufficient to mitigate any identified safeguarding risks, for example, where a survivor of domestic abuse may be at risk of returning to a violent partner.

Social workers and other practitioners working with adults may have regard to the principles established regarding subsistence payments to meet a child’s needs when families with NRPF are supported under section 22 of the Children (Scotland) Act 1995.

For more information, see:

• 8.5 Provision of accommodation and financial support (children within families)

9.4 Community Care Assessments 

Local authorities have a duty to assess the community care needs of individuals ordinarily resident within their area and to provide services to those people who require them. This duty may be triggered by obligations under the Social Work (Scotland) Act 1968, the Mental Health (Care and Treatment) (Scotland) Act 2003, or the Carers (Scotland) Act 2016.

There is no statutory definition of ‘ordinary residence’ under the Social Work (Scotland) Act 1968. However, the Scottish Government has issued a Circular to local authorities which, as a starting point, proposes to follow English legislation as interpreted by the courts in the case of Shah v London Borough of Barnet [1983]:

‘unless … it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.’  ⁸²

9.5 Conducting a Community care Assessment

A community care assessment will normally be conducted in two stages, the first of which is the requirement to conduct an assessment of need.

Local authorities will adopt different approaches to assessments, however the assessment must be tailored to the circumstances of the individual.

The Scottish Government has published guidance on conducting adult social care/ community care assessments in relation to the Social Care (Self-directed Support) (Scotland) Act 2013, which requires local authorities to ensure individuals:

• have as much involvement as they wish to, and the opportunity to collaborate, in the assessment;
• are provided with any assistance reasonably required to express a view and make an informed choice about forms of support, including self-directed support; and
• receive support in a form that facilitates respect for personal dignity and respect for the right to participate in the community. ⁸⁴
  

The second stage is that the local authority will consider eligibility for services to meet the assessed need.  When doing so, local authorities must take into account the 2007 National Eligibility Framework, jointly developed by the Scottish Government and COSLA, but can also have regard to their own eligibility criteria. ⁸⁵

The Framework states that, in determining eligibility, the local authority must have regard to the following points:

• Once a local authority determines a person’s needs fall within its eligibility criteria, it has a duty to meet those needs, always recognising that there are many and varied ways to ‘meet a need’. The act encourages creativity and collaboration to widen the scope of support received.

• Eligibility criteria should not shape the identification of ‘presenting needs’ but it may influence which needs can be met through local authority or partnership funding.

• It is important that assessments are focused on personal outcomes and that a strengths-based approach to assessment is adopted.

• A need should not automatically be seen as a deficit that requires funding or a service.

• In determining eligibility, social workers and other practitioners need to take full account of how a person’s needs and risks may change over time, the impact of failure to access support and whether this would lead to more support being required in the future.

• If, after assessment, it is determined that a person does not meet the eligibility for funded support or services they should – minimally – be provided with information and advice about alternative forms of possible assistance.

• There may be a requirement for limited or ongoing involvement with some people even if their needs fall below eligibility criteria thresholds.

The authority can take into account its overall resources when determining eligibility criteria. However, once it has decided that the person’s needs are such that they require provision of services (i.e. they are ‘eligible needs’), the authority cannot then refuse to meet those needs because of budgetary constraints.

9.6 Assessing NRPF Individuals

There is no specific statutory guidance on assessing a person with no recourse to public funds (NRPF), however, there are some challenges that are worth considering in the context of completing an assessment:

• Whether the person’s immigration status impacted their ability to access health services or meet the cost of healthcare (including the cost of specific treatment, prescribed foods, and transport to and from healthcare appointments) which may have exacerbated physical or mental health conditions.

• Whether the purpose of the assessment and the identity of the lead assessor been made clear to them.

• Whether there is a need to address a lack of familiarity with the operation of a social welfare system, or possibly an underlying fear of authority, for individuals who have been harmed or persecuted by their own governments.

• Whether there will be a need for further investigation with respect to physical and mental health, and how identifying whether the person has experienced trauma and has untreated physical disability/ mental health needs, will be accomplished where records or access to medical treatment has been lacking.

• Whether an interpreter needed and is there a way of continually assessing the quality of interpretation being offered.

• Whether interim support may need to be provided whilst an assessment is being carried out.

For more information, see:

• 5.4 Use of interpreters 
• 6.3 Meeting urgent need – adults 
• 11 Assessments when the exclusion applies

9.7 Destitution Exception

Local authorities are not required to provide social care services to a person whose needs have arisen due to destitution alone due to an exception that is set out in the following legislation:

• Section 12(2A) of the Social Work (Scotland) Act 1968 – in relation to services provided under section 12, 13A and 13B

This ‘destitution exception’ prevents a local authority from providing assistance (whether by way of residential accommodation or otherwise) to some people with no recourse to public funds (NRPF):

‘‘A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies is not to receive assistance under subsection (1) of this section(whether by way of residential accommodation or otherwise) if his need for assistance has arisen solely— because he is destitute; or because of the physical effects, or anticipated physical effects, of his being destitute.’

This exception only applies to people who are ‘subject to immigration control’:

The definition of destitution that is used when determining claims for asylum support is to be followed:

‘A person is destitute if— he does not have adequate accommodation or any means of obtaining it(whether or not his other essential living needs are met); or he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs. ⁸⁶

The intention behind this provision is to clarify that local authorities are not required to provide support to an adult solely for the purpose of alleviating destitution when that person has no additional needs.

For example, where a person cannot maintain a habitable home environment for no other reason than because they are homeless, that need has solely arisen due to their lack of housing, rather than because of an illness or mental disorder or disability. When no other support needs are identified in such a case, the local authority will not have a duty to meet their needs (including by providing accommodation) under the legislation listed above. However, in some cases it may be appropriate to consider whether to use a discretionary power to provide support.

Proper consideration of the eligibility criteria will involve identifying what has given rise to a person’s particular need. When a person’s needs arise from a physical or mental impairment, or illness, and are not solely caused by destitution, then assistance can be provided when the eligibility criteria is met.

9.8 Schedule 3 Exclusion

Assistance provided by social services is not a public fund for immigration purposes and should not be refused on the basis that the person has no recourse to public funds (NRPF).

However, Section 54 and Schedule 3 of the Nationality Immigration Asylum Act 2002 contains an exclusion that may limit whether accommodation and financial support can be provided by social services to certain people depending on their nationality and immigration status. Support or assistance may only be provided to a person who is in an excluded group when this is necessary to prevent a breach of their human rights.

The purpose of Schedule 3 is to restrict access to support when a person is in an excluded group and they are either without leave to remain in the UK, or can no longer support themselves and their family, and instead can avoid a situation of destitution in the UK by returning to their country of origin, where they are not subject to restrictions on employment and services.

When a person is in an excluded group, the local authority has a legal obligation to consider return to country of origin as an alternative to spending financial resources on supporting people who have not been able to successfully establish a right to remain in the UK.

The local authority will undertake a human rights assessment to consider whether return to country of origin is possible or whether there is a legal or practical barrier preventing this, for example, an immigration application pending with the Home Office which has not yet been decided.

Undertaking a human rights assessment will involve having regard to decisions made by the Home Office or appeal courts, and the local authority will be required to provide support whilst any human rights claims remain outstanding.

The NRPF Network has developed a Human Rights Assessment Template that is available on the NRPF Network guidance pages. Data from local authorities using the NRPF Connect database demonstrates that 83% of families and 60% of adults with care and support leave social services support following a grant of Leave to Remain or a change in immigration status allowing recourse to public funds.87 . Local authorities must therefore be aware that in many cases return to country of origin is not going to be an appropriate option for the family or adult. Despite low return rates, the undertaking of a Human Rights Assessment may nevertheless help the local authority establish a route out of social services’ support, including making a referral to an immigration adviser if it is believed return to country of origin is not appropriate or possible.

It is often the case, for example, that people in the exclusion group who do not have an immigration claim outstanding and who have become destitute or homeless, have been told or believe that their only remaining legal option is voluntary return – however given an opportunity to access safe accommodation and legal advice, they may be able to establish they are eligible to make a successful claim for leave to remain. When the exclusion is applied correctly, the local authority will ensure that they are considering all options available to a person to avoid remaining in the UK in a situation of destitution.88

Assistance cannot automatically be refused when a person is in an excluded group because social services’ support can be provided when this is necessary to prevent a breach of human rights. The local authority will need to undertake a human rights assessment to establish whether or not support can be provided.

The exclusion does not apply when a person is provided with assistance under the Mental Health (Care and Treatment) (Scotland) Act 2003, and does not prevent a community care assessment being undertaken or urgent needs from being met.

For more information, see:

• 7 Social services’ support – exclusion 
• 11 Assessments when the exclusion applies

9.9 Section13A of the Social Work (Scotland) Act 1968

Section 13A of the Social Work (Scotland) Act 1968 imposes the duty to make arrangements for:

‘..the provision of suitable residential accommodation where nursing is provided for persons who appear to them to be in need of such accommodation by reason of infirmity, age, illness or mental disorder, dependency on drugs or alcohol or being substantially handicapped by any deformity or disability.’

Residential accommodation includes a care home or psychiatric hospital. 

The destitution exception applies to this provision so must also be considered.

Additionally, for people who are in an excluded group under Schedule 3 of the Nationality, Immigration and Asylum Act 2002, residential accommodation under section 13A can only be provided where this is necessary to prevent a breach of their human rights, so the local authority would also need to undertake a human rights assessment to determine whether support may be provided.

For more information, see:

• 9.5 Destitution exception
• 9.6 Schedule 3 exclusion

9.10 Mental Health (Care and Treatment) (Scotland) Act 2003 

The Mental Health (Care and Treatment) (Scotland) Act 2003 sets out a wide range of requirements with regard to the care and treatment of adults with mental health conditions. These must be considered alongside the Code of Practice. ⁸⁹

Sections 25 to 27 require the local authority to provide or secure the provision of certain services for persons who are not in hospital and who have or have had a mental disorder.

A mental disorder includes a mental illness, personality disorder or learning disability.

Care and support services under section 25:

• Need to be designed to minimise the effect of the mental disorder on such persons and give such persons the opportunity to lead lives which are as normal as possible – section 25(2)

• Include residential accommodation and personal care and personal support (but not nursing care) – section 25(3)
  
  • ‘Personal care’ means ‘care which relates to the day to day physical tasks and needs of the person cared for (as for example…eating and washing) and to mental processes related to those tasks and needs (as for example, but without prejudice to that generality, to remembering to eat and wash)’.
  • ‘Personal support’ means ‘counselling, or other help, provided as part of a planned programme of care’ – paragraph 20 of schedule 12 to the Public Services Reform (Scotland) Act 2010.

Services under section 26, which are designed to promote the wellbeing and social development, provide:

• Social, cultural and recreational activities
• Training for such of those persons as are over school age
• Assistance for such of those persons as are over school age (normally 16 years or older) in obtaining and in undertaking employment – section 26(2)

Assistance with travel to enable these services to be used can be provided under section 27.

The Act specifies that residential accommodation can be provided. It is likely that other types of accommodation can also be provided, where this is necessary to minimise the effect of the mental disorder on such a person, and give them the opportunity to lead a life which is as normal as possible. Commentary accompanying the Act at paragraph 4 refers to ‘accommodation with appropriate levels of support’. This suggests that there may be circumstances where a person with no recourse to public funds (NRPF) can be provided with accommodation under section 25 in order to reduce the effect of their mental disorder, for example, where supported accommodation is required.

The destitution exception applies to the provision of care and support under sections 25 to 27, so must also be considered when assessing need.

However, the immigration exclusion that applies to some aspects of social services’ support does not apply to any services provided under the Mental Health (Care and Treatment) (Scotland) Act 2003. Therefore, services can be provided to a person regardless of their immigration status and must not be refused to an individual on that basis.

If the person’s support needs do not engage the need for supported accommodation, then the local authority would need to establish whether they can be provided with accommodation under section 12 of the Social Work (Scotland) Act 1968. However for some people, accommodation can only be provided on this basis if it is necessary to prevent a breach of their human rights, so the local authority would also need to undertake a human rights assessment if the person is in an excluded group under Schedule 3 of the Nationality, Immigration and Asylum Act 2002.

For more information, see:

• 9.5 Destitution exception

9.11 Discretionary Powers

Section 20 of the Local Government in Scotland Act 2003 gives a local authority the power to do anything to promote or improve the wellbeing of its area or persons within its area.  This is a wide-ranging power in that it allows the local authority to give financial assistance, including services and accommodation, where the individual circumstances of a case justify its use.

Section 21 of the Act imposes a condition on the exercise of this power, noting that a local authority must have regard to any guidance published by the Scottish government.

Section 22 of the Act places limits on the use of the power where, by virtue of a limiting provision, the local authority’s powers are limited in some respect, i.e., there is no limitation of the use of the power of wellbeing unless a statute expressly prohibits, prevents or limits a particular action. This could be interpreted to mean that the wellbeing power cannot be used to circumvent limitations contained in other acts, but can be used in the absence of a statutory limitation. 

Section 20 of the Act is therefore a discretionary power that local authorities may be able to use to provide accommodation and financial support to a person with no recourse to public funds (NRPF) who would otherwise be homeless, when there are no alternative support options available to them, including those set out in this guidance. 

Where a person with NRPF requires accommodation but all other support options have been fully considered and do not apply, then, in the absence of any settled case law in Scotland, local authority officers should seek advice from their legal team about how to proceed and are encouraged to get in touch with COSLA.    

If support is provided on a discretionary basis under section 20, then the local authority must be clear about the basis on which support is being provided, to enable this to be reviewed when the person’s circumstances change.

9.12 Protection Duty

The Adult Support and Protection (Scotland) Act 2007 sets out adult safeguarding duties with the aim of protecting and supporting adults who are at risk of being harmed.  It also provides measures to identify and protect individuals who fall into the category of ‘adults at risk’, further set out in the associated Code of Practice. ⁹⁰

An ‘adult at risk’ of harm is defined as a person aged over 16 who is:

• unable to safeguard their own wellbeing, property, rights or other interests, and
• at risk of harm, and
• because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected.

Harm may include:

• Physical harm
• Psychological harm
• Financial harm
• Sexual harm
• Neglect

The Act requires local authorities to:

• make the necessary inquiries and investigations to establish whether or not further action is required to stop or prevent harm occurring, and
• provide appropriate services, including independent advocacy, to support adults where an intervention under the Act is considered to be necessary.

Working Together to Improve Adult Protection – Risk Assessment and Protection Plan (2007) provides guidance on the completing of risk assessments and the development of adult support and protection plans. ⁹¹

A person’s immigration status does not affect the local authority’s duty to undertake an enquiry or establish what action needs to be taken to prevent or stop harm. This duty may apply to a person who is a survivor of modern slavery or trafficking, or is experiencing domestic abuse.

Where a person who is subject to this duty has no recourse to public funds (NRPF), the adult support and protection plan must identify how their immigration status impacts on entitlements to services, and what accommodation options they may have. The local authority may need to consider whether accommodation can be provided under sections 12 or 13A of the Social Work (Scotland) Act 1968 or the Mental Health (Care and Treatment) (Scotland) Act 2003.

The local authority may also need to consider whether the person’s ability to safeguard their personal and financial welfare is affected by any incapacity under the Adults with Incapacity (Scotland) Act 2000.

9.13 Support for carers

The Carers (Scotland) Act 2016 is designed to support carers’ health and wellbeing and help make caring more sustainable.

Since 1 April 2018, relevant local authority duties arising under this Act have included:

• A duty for local authorities to provide support to carers, based on the carer’s identified needs that meet the local eligibility criteria, and which cannot be met through support provided to the person being cared for, or through general local services.
• Providing a specific adult carer support plan and young carer statement to identify the carers’ needs and personal outcomes. This must be carried out for any carer that requests an adult carer support plan.

The Carers’ charter summarises carers’ rights under the Act. ⁹²

The Schedule 3 exclusion that applies to some aspects of social services’ support does not apply to any services provided under the Carers (Scotland) Act 2016. Therefore, services can be provided to a carer regardless of their immigration status and must not be refused to an individual solely on that basis.

The adult carer support plan must include information about the carer’s personal circumstances. Therefore, it will be relevant to identify and record the carer’s immigration status. The plan must include reference to the extent to which the carer is able and willing to provide care, and emergency planning. This could include considering how the carer’s immigration status may impact on this, for example, if the carer is without leave and is at risk of being detained and removed from the UK.

9.14 Pregnant Women with NRPF

When a woman with no recourse to public funds (NRPF) is pregnant but does not have children in her care, then duties to provide support that arise under the Children (Scotland) Act 1995 would not apply to an unborn child. Local authorities would therefore need to consider whether any duties arising in legislation applicable to adults may enable accommodation to be provided, bearing in mind that the lack of appropriate shelter and nutrition may have a detrimental impact on the unborn child’s health. As duties under the Children (Scotland) Act 1995 will apply as soon as the child is born, ensuring that the mother is adequately supported through her pregnancy may reduce the level of assistance that is required by her child if it is in need following the birth.

Where a pregnant woman with NRPF does not have accommodation and/or sufficient means to afford to meet her daily living needs and is in need of assistance due to her pregnancy, the local authority may provide support under section 12 of the Social Work (Scotland) Act 1968.

The destitution exception would apply to this provision, so must also be considered, but is unlikely to prevent assistance being provided where a woman is in need due to her pregnancy rather than due to the effects of being destitute.

For some pregnant women, accommodation and financial support can only be provided under section 12 if that is necessary to prevent a breach of their human rights, so the local authority would also need to undertake a human rights assessment if the woman is in an excluded group under Schedule 3 of the Nationality, Immigration and Asylum Act 2002. Therefore, the stage at which the pregnancy is at in terms of the woman’s ability to travel would be a highly relevant factor in determining whether return to country of origin is an option to avoid a situation of destitution within the UK.

Whilst engaging with a pregnant woman who may be NRPF it may be worth considering whether she is accessing maternity care, which is available free of charge to most people (subject to some exceptions) – and if she is not, providing information about the health, mental health and financial support that might be available to her – through NHS services, the baby box scheme and Scottish social security benefits.

Finally, as set out above, many people to whom the Schedule 3 exclusion applies, will go onto obtain leave to remain. This shows that many adults, young people and families receiving accommodation and financial support from social services have a legal or practical barrier preventing them from returning to their country of origin and must be supported despite being in an excluded group. It is often the case that people in the exclusion group who do not have an immigration claim outstanding and who have become destitute or homeless, have been told or believe that their only remaining legal option is voluntary return – however given an opportunity to access safe accommodation and legal advice, they may be able to establish they are eligible to make a successful claim for leave to remain. When the exclusion is applied correctly, the local authority will ensure that they are considering all options available to a person to avoid remaining in the UK in a situation of destitution.⁹³

For more information, see:

• 9.1 Section 12 of the Social Work (Scotland) Act 1968
• 9.5 Destitution exception
• 9.10 Discretionary powers
• 11 Assessments when the exclusion applies

9.15 Support Options for Offenders with NRPF 

Local authorities in Scotland have a statutory function to establish joint arrangements to assess and manage risks posed by sex offenders and violent offenders. They also have a duty to provide advice guidance and assistance to offenders who are released from prison or another form of detention on license. ⁹⁴

Where an ex-offender has NRPF and requires accommodation, the following options may be considered:

• Whether they are in need of assistance and require accommodation under s12 of the Social Work (Scotland) Act 1968. Where the person is in an excluded group under Schedule 3 of the Nationality, Immigration and Asylum Act 2002, a human rights assessment would also need to be undertaken.
• Whether they are eligible for Home Office asylum support either under section 95 or section 4(2) of the Immigration and Asylum Act 1999.
• If they are being released following a period of immigration detention, whether they qualify for Home Office immigration bail accommodation under schedule 10 of the Immigration Act 2016.

When none of the above options apply, the local authority would need to consider whether its public protection duties extend to funding accommodation and financial support.

Where an ex-offender with NRPF requires accommodation, but other support options, including the statutory duties set out in this chapter, have been fully considered and do not apply, then local authority officers should seek advice from their legal team about how to proceed and are encouraged to get in touch with COSLA.

For people seeking release from immigration detention, their options are limited now that the Home Office has repealed section 4(1) of the Immigration and Asylum Act 1999, which allowed for the provision of accommodation for people released from immigration detention or on immigration bail.

In limited cases, it may be possible for people to apply for support under Schedule 10 of paragraph 9 of the Immigration Act 2016 – known as “Schedule 10 support”. This provides support for people who are on immigration bail and who cannot apply for section 4 or section 95 support under the Immigration and Asylum Act 1999.⁹⁵

Otherwise, the Home Office will only provide accommodation for the purpose of granting immigration bail to a person in ‘exceptional circumstances’:

• When the Special Immigration Appeals Commission (SIAC) grants bail and imposes exceptionally strict bail conditions, including a residence condition, to control the risk posed by the individual.
• When a person has been assessed as being at a high or very high risk of causing serious harm to the public.
• When a person is at high risk of harmful reoffending against an individual, for example, offences of domestic burglary, robbery, sexual assaults and violence, and has nowhere suitable to live in accordance with their probation license and/or multi-agency public protection arrangements (MAPPA). ⁹⁶
  

Home Office guidance states that when one of the above applies, accommodation would only be provided for a limited period (three to four months), whilst the person makes arrangements either to leave the UK or to move to alternative accommodation, unless there are exceptional circumstances to justify continuing it, for example, public protection issues.

The ‘exceptional circumstances’ threshold in relation to ex-offenders that is set by the Home Office is not consistent with that which applies in Scotland when public protection duties are engaged. This could result in a situation where a person does not qualify for Home Office immigration bail accommodation when the local authority has a duty to manage any risks posed to the public by their release from immigration detention.

Bail for Immigration Detainees has produced a useful guide setting out the practicalities of accessing Home Office asylum and immigration bail support for people in immigration detention. ⁹⁷

For more information, see:

• 9.2 Section 12 of the Social Work (Scotland) Act 1968
• 11 Assessments when the exclusion applies
• 16 Asylum seekers

9.16 Housing People with NRPF on Public Health grounds

When a person requires housing in order to mitigate a public health risk, for example, a person with a diagnosis of active TB who requires to successfully complete a course of TB treatment, then health care professionals will be required to work in partnership with local authorities to establish accommodation and financial support pathways for individuals with NRPF, including whilst assessments are taking place.

The local authority would be required to undertake a community care assessment when a person appears to be in need of community care services, with a view to determining whether any duties are engaged under Sections 12 or 13A of the Social Work (Scotland) Act 1968 or sections 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

If a person is in need due to their illness, or also has a disability or mental health condition, then section 12 of the Social Work (Scotland) Act 1968 may be engaged, and accommodation and financial support are provided in addition to any other community care services that are required.

Where the person is in an excluded group under Schedule 3 of the Nationality, Immigration and Asylum Act 2002, accommodation and other services can only be provided under section 12 if such support is necessary to prevent a breach of human rights. In such cases the local authority would also need to undertake a human rights assessment to determine whether return to country of origin is possible to avoid a breach of human rights, including considering whether the person’s ability to travel is affected by their illness or medical condition. It is likely that a communicable disease that presents a public health risk would be a practical barrier to travel and return.

Where a person is not eligible for assistance under social care or mental health legislation, local authority officers should seek advice from their legal team about how to proceed and may also get in touch with COSLA.

It will be important for health practitioners to signpost patients with NRPF to a legal adviser as soon as it is identified that the person may require immigration advice, rather than waiting until the point of discharge.

For more information, see:

• 9.2 Section 12 of the Social Work (Scotland) Act 1968
• 9.9 Discretionary powers
• 11 Assessments when the exclusion applies