Social Services’ Support – Children within Families

Local authorities have a duty to safeguard and promote the wellbeing of children, regardless of the child’s or parents’ immigration status. This chapter sets out how a local authority will determine whether it has a duty to provide accommodation and financial support to a family with children under 18 who have no recourse to public funds (NRPF) and are in need of assistance, and, when that duty is engaged, how to establish what support needs to be provided.

Later chapters look at specific considerations for pregnant women without dependent children, care leavers, and Unaccompanied Asylum Seeking Children (UASCs) who are looked after by the local authority.

8.1 Statutory Framework

General duty to promote Child Well-being

A local authority’s duty to provide accommodation and financial assistance to NRPF families with children who would otherwise be homeless or destitute, arises from general duties to safeguard the welfare of children in need, which are set out in the Children (Scotland) Act 1995.

This Act requires assistance to be provided to a family where there is a child in need and the local authority determines that it must use its power under the Act to provide accommodation and/or financial support to meet the child’s assessed needs.

Section 22(1) of the Children (Scotland) Act 1995 sets out the general duty of local
authorities to:

‘(a) safeguard and promote the welfare of children in their area who are in need; and so far as is consistent with that duty, promote the upbringing of such children by their families, by providing a range and level of services appropriate to the children’s needs.’

Section 25(1) goes on to define a ‘child in need’ who the local authority requires to accommodate to include:

‘..any child who, residing or having been found within their area, appears to them to require such provision because— no-one has parental responsibility for him; he is lost or abandoned; or the person who has been caring for him is prevented, whether or not permanently and for whatever reason, from providing him with suitable accommodation or care.’

Section 22 also requires local authorities in so doing, to promote the upbringing of children by their families, and gives powers to local authorities to provide financial support to both children and their families.

This means that in fulfilling its duties arising under Section 25 to children within an NRPF family, the local authority should seek to accommodate and financially support an intact family together, unless doing so would not safeguard the welfare of the children.

Children with Disabilities or affected by Disabilities

In addition to a child being in need due to the family’s situation of destitution, there may be other needs that must also be properly addressed where a child has a disability.

A child is considered to have a disability if they have a mental or physical disability, or a chronic health problem.  A child may also be affected by the disability of another family member.

Section 23 requires local authorities, in supporting a family with disability under Section 22, to design the provision of services so as to minimise the effect of disability on the lives of the children in that family, in order to give those children the opportunity to ‘lead lives which are as normal as possible’.  This applies to both minimising the effect of the disability of a child, or the disability of any other person in her family, if the child is adversely affected.

Therefore, when such a situation is identified in an NRPF family and the parent’s resources are not sufficient to minimise the effect of disability on a child within the family, then the local authority must consider how the child’s needs can be met through the provision of accommodation and/or financial support, as well as any physical adaptations to the premises and help accessing other services.

Unborn Children 

The local authority may need to consider whether a pregnant woman with NRPF is in need of assistance and therefore can be provided with accommodation and support under section 12 of the Social Work (Scotland) Act 1968, until her child is born, at which point duties under the Children (Scotland) Act 1995 may be engaged.

For more information, see:

• 9.13 Pregnant women with NRPF

8.2 Duty to Undertake an Assessment

Taken together, the legislative framework of the Children (Scotland) Act 1995, and the planning arrangements that the Children and Young People (Scotland) Act 2014 requires local authorities to have in place, means that local authorities may have a duty arising under their child welfare obligations, to provide accommodation and support to NRPF families in their area that are at risk of destitution and homelessness.

To assess whether that duty applies, with respect to a particular child, a local authority will require to undertake a child in need assessment (or child wellbeing assessment), where there is a concern that a child is aged under 18 and:

• needs local authority services to achieve or maintain a reasonable standard of health or development, or
• needs local authority services to prevent harm to their health or development, or
• is disabled, or
• is affected by the disability of another family member, or
• is ‘at risk’ of becoming a ‘looked after’ child either for the first time or perhaps a second or third time and so on because they are not in a settled situation.

If a child has a disability, or is affected by disability, the local authority must provide an assessment of the child if their family asks for one.  The local authority must also provide an assessment of the child’s carer and their ability to provide care for the child.

In instances where responsibility for undertaking an assessment or providing services is disputed, a child’s needs should be met whilst responsibility is determined.  If a child is ‘ordinarily resident’ in another local authority, costs of providing services may be recovered under Section 86 of the Social Work (Scotland) Act 1968.

For more information, see:

• 9.1 Community care assessments

8.3 GIRFEC Assessment 

Getting it Right for Every Child (GIRFEC) is the national policy framework in Scotland aimed at improving outcomes and supporting the wellbeing of children and young people. The framework embeds the principles of the UN Convention on the Rights of the Child (UNCRC) into practice and promotes a rights-based approach. In particular, the GIRFEC approach is built around respect for the views of the child, a right guaranteed by Article 12 of the UNHCR, which embodies the right to be heard and listened to. ⁵⁶

The UNCRC (Incorporation) (Scotland) Bill 2021 was passed unanimously by the Scottish Parliament in 2021 but could not be made law because of a legal challenge.57

That has now been heard and the Scottish Government are redrafting the bill in order to complete the final stages of creating this Act. The Act will incorporate the rights and obligations of the UNCRC into Scots Law. This means that Scottish public authorities, including local authorities, must uphold the rights of children set out in the UNCRC – including the obligation to provide services without discrimination on the basis of nationality, race or migration status – and do not have powers to take actions that breach the UNCRC.

GIRFEC is central to all policies in Scotland which support children, young people and their families and is delivered through services and people who work with families.

To make sure everyone – children, young people, parents and the services that support them – has a common understanding of what wellbeing means, GIRFEC describes wellbeing in terms of eight indicators often referred to by their initial letters – SHANARRI:

• SAFE – Protected from abuse, neglect or harm at home, at school and in the community.
• HEALTHY – Having the highest attainable standards of physical and mental health, access to suitable healthcare and support in learning to make healthy, safe choices
• ACHIEVING – Being supported and guided in learning and in the development of skills, confidence and self-esteem, at home, in school and in the community.
• NURTURED – Having a nurturing place to live in a family setting, with additional help if needed, or, where possible, in a suitable care setting
• ACTIVE – Having opportunities to take part in activities such as play, recreation and sport, which contribute to healthy growth and development, at home, in school and in the community.
• RESPECTED – Having the opportunity, along with carers, to be heard and involved in decisions that affect them.
• RESPONSIBLE – Having opportunities and encouragement to play active and responsible roles at home, in school and in the community, and where necessary, having appropriate guidance and supervision, and being involved in decisions that affect them.
• INCLUDED – Having help to overcome social, educational, physical and economic inequalities, and being accepted as part of the community in which they live and learn.

People working in partnership with children and families can draw on these eight wellbeing factors (SHANARRI) and the GIRFEC National Practice Model (NPM) to help understand an individual’s strengths, needs and risks, what could be supported and how. They are applicable to any issue facing a child or young person in Scotland and can be used by an organisation (such as the NHS or a local authority) or when services need to work together.

GIRFEC values and principles and the National Practice Model are the starting point, therefore, of any child wellbeing assessment conducted under section 22 of the Children (Scotland) Act 1995. The assessment must be undertaken within a ‘reasonable’ timeframe, having regard to the welfare of the child and the urgency of the matter. ⁵⁸

Local authorities have developed their own best practice guidance in relation to the use of the GIRFEC values and principles and the National Practice Model in conducting assessments key aspects of which are noted below:

• Using the GIRFEC wellbeing indicators to guide an assessment
• Asking the five questions (set out in the National Practice Model)
• Using the My World Triangle (set out in the National Practice Model) to organise information and, when necessary, to gather more information about the strengths and pressures in the child’s world
• Analysing the information, using the Resilience Matrix (set out in the National Practice Model)
• Evaluating risks (for example, using the National Risk Framework) ⁵⁹
  
• Summarising needs in relation to wellbeing (in the form of a GIRFEC Assessment or Child Plan)

Assessing NRPF Families with Children
There is no specific statutory guidance on assessing children in NRPF families, however, there are some challenges arising from a parent’s immigration status that are worth considering in the context of completing an assessment for an NRPF family, which are setout below:

• Consequences of the parent’s lack of access to employment, benefits and social housing due to their immigration status include the child being at greater risk of experiencing poverty and adverse effects on their health, wellbeing and development.
• Limitations on the family’s ability to self-support. For example, a person with no current leave to remain is prohibited from opening a new current account, may have had their old bank accounts closed or frozen and will be committing a criminal offence if they undertake employment.
• Whether the family have experienced barriers due to their immigration status when accessing health services or meeting the cost of healthcare, including the cost of specific treatment, prescribed foods, and transport to and from healthcare appointments.
• The need to establish early on the role of the social worker in the assessment, and the purpose of assessment, and to address lack of familiarity with the operation of a social welfare system, or possibly underlying fear of authority for individuals who have been harmed or persecuted by their own governments or who are living in the UK with insecure immigration status.
• The need for further investigation with respect to physical and mental health, where addressing identification of trauma and untreated physical disability/ mental health needs in the child/ family may be due to a lack of records or access to medical treatment.⁶⁰
• Charitable support or assistance from local communities may be being provided in the absence of any statutory assistance, so a full investigation into the sustainability of such support, and to what extent it meets a child’s needs must be undertaken. The availability of such assistance does not negate the local authority’s duty to ensure the safety and wellbeing of a child.
• The impact of being a migrant, having a migrant parent or having uncertain immigration status, on children’s integration. This may include: the negative impact of multiple moves between short-term accommodation, language barriers in accessing education, exclusion from educational and social opportunities due to lack of financial support, adverse effects on the child or parent’s mental health, and experience of discrimination and/or bullying.

There is now a large body of case law in which the English courts have considered assessments of a child’s needs when they are living in an NRPF household with a view to determining eligibility for accommodation and financial support under section 17 of the Children Act 1989. The provision to safeguard and promote the welfare of a child in need is very similarly worded to the equivalent duty in section 22 of the Children (Scotland) Act 1995.

Therefore, although the scope of section 22 has not been tested in the Scottish courts, local authorities in Scotland should bear in mind the relevant English case law:

The English courts have found that:

• The local authority must undertake an assessment in line with the framework set out in the statutory guidance (English equivalent to GIRFEC) to determine whether support can be provided to an NRPF family. ⁶¹
  
• Section 17 empowers the local authority to rescue a child in need from destitution where no other state provision is available. ⁶²
  
• Section 17 creates a target duty which provides a local authority with the discretion to decide how to meet a child’s assessed need. Local authorities may take scare resources and other support options available to the family into account and must decide what intervention is required on the facts and evidence of an individual case. ⁶³
  
• A child without accommodation will be a child in need. ⁶⁴
  
• Local authorities need to undertake thorough investigations and properly document their findings, ensuring that any judgments on the parent’s credibility are based on fact and not feel, and adverse inferences must not be made without first putting such concerns to the parent and providing them with an opportunity respond, for example, where there are information gaps. ⁶⁵
• When a parent has leave to remain allowing them to work, their ability to undertake employment will form one aspect of the assessment. A conclusion about whether a child is in need must be made by evaluating all the available information about the family’s circumstances. ⁶⁶
• When considering the parent’s ability to self-support it is important to be aware of the restrictions that apply to people who do not have any current immigration permission, for example, the inability to open a bank account or work legally. (In England the impact of the right to rent provisions must also be considered). ⁶⁷
• Section 17 is an ongoing duty, so when a family’s circumstances change the local authority must decide whether this means that the child’s needs should be reassessed. ⁶⁸
  

Local authorities must be mindful not to inadvertently encourage or condone criminal activity when determining what alternative support options are available to a family, for example, by concluding that a parent can support their family through employment when they are prevented by their immigration status from doing so legally.

8.4 Considerations when Parents are in an Excluded Group

When a parent can only receive support or assistance to prevent a breach of human rights because they are in one of the groups of people that are excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, then the local authority must undertake a human rights assessment, in addition to the child wellbeing assessment. In order to determine whether the family can be provided with accommodation and financial support under section 22 of the Children (Scotland) Act 1995, the human rights assessment will consider whether the family can return to the parent’s country of origin to avoid a human rights breach that may arise from the family being destitute in the UK. 

If return to country of origin is being considered, the child wellbeing assessment should also address the child’s needs within the country of origin and how they may or may not be met, as this information would be relevant to the human rights assessment.

For more information, see:

• 11 Assessments when the exclusion applies

8.5 Provision of Accommodation and Financial Support 

Local authorities have wide discretion in the type of support that can be provided to families under Section 22(3) of the Children (Scotland) Act 1995.

The Act specifies that services can be provided:

• for a particular child, and
• to any member of the child’s family, if doing so safeguards and promotes the welfare of the child.

Section 22(3) also sets out that services can include giving assistance in kind or, in exceptional circumstances, in cash.  This means that local authorities can meet assessed needs by providing accommodation, as well as financial support in cash.

In order to adequately safeguard the child’s welfare, the local authority would need to provide assistance that is sufficient to reduce any risks to the child that may otherwise arise. For example, if a parent was previously relying on unsuitable caring arrangements for their child in order to undertake additional hours of employment, then the purpose of the local authority’s intervention would be to alleviate that risk to the child by providing accommodation and/or sufficient financial support to meet the family’s housing and living needs.

Cash support may be a more appropriate option to consider with NRPF families, as compared to other families who require Section 22 support, specifically because of the challenges they face in accessing other forms of cashless support and social security benefits, as well as the prohibition on many such families from access to current account banking facilities. The local authority may choose to use pre-payment cards as an efficient way to administer regular subsistence payments and to empower the individual to access their money as they need it.

As the Children (Scotland) Act 1995 does not proscribe the amount of financial support, or subsistence, that should be provided to meet the needs of a child in an NRPF household, the local authority must determine this.

It is good practice to have internal guidance that sets out basic rates and how additional needs may be met, in order to ensure consistent practice, the fair exercise of the local authority’s discretion and a minimal administrative burden on staffing resources.

This process may involve identifying all ‘essential’ needs for the family, such as food, clothes, toiletries, travel and communication, that are not provided for through other arrangements or that will not be paid directly to the temporary accommodation provider.

To inform a decision about the level of support that should be provided, the local authority may have regard to other rates of statutory support, for example, Home Office asylum support69 or social security benefits70, the Office for National Statistics data on household expenditure71, and to the Joseph Rowntree Foundation’s minimum income standard calculator72
.
The costs of free school meals and school uniform grants may need to be accounted for if they are not available to a child in an NRPF household. When considering other rates of statutory support, it is important to be aware of what this support is intended to cover and to ensure that additional identified needs are met (see points below).73

When establishing internal guidance, the local authority must ensure that it clearly documents the process social workers must follow to decide how much to provide and how any basic rates have been reached. Budgetary constraints within the local authority should be balanced against the need to safeguard and promote the wellbeing of the child.

Some points to consider are set out below, including conclusions made by the courts and Local Government Ombudsman in England:

• The GIRFEC assessment must determine the needs of a particular child with proper consideration of the best interests of the child.

• A rational and consistent approach to decision making may involve cross-checking with internal guidance or other statutory support schemes so long as this does not constrain the local authority’s obligation to have regard to the impact of any decision on a child’s welfare. This means that support should not be fixed to set rates or other forms of statutory support without any scope for flexibility to ensure the needs of an individual child are met. 
  

• Child benefit is not designed to meet the subsistence needs of children so it would not be rational or lawful to set standard rates in line with these amounts. ⁷⁴
  

• When it is in the child’s best interests for the family to remain together, payments for the parents should be made in addition to those considered appropriate to meet the needs of the children, but are not required to exceed what is necessary to avoid a breach of the parent’s human rights.

• Home Office support for appeal rights exhausted (ARE) asylum seekers provided under section 4 of the Immigration and Asylum Act 1999 is designed to cover food and toiletries only, therefore any policy aligning subsistence payments with these rates must allow for additional assistance to be provided in order to meet the child’s needs. The Court of Appeal has suggested that a level of support considered adequate simply to avoid destitution, in the case of an ARE asylum seeker, is unlikely to be sufficient to safeguard and promote the welfare of a child in need and by extension the essential needs of the parent on whom the child depends for care’. ⁷⁵
  

• Lack of complaint from a family does not mean that the local authority can be satisfied that it is making payments appropriate to meet the child’s needs. ⁷⁶
  

• Any changes to subsistence rates must be administered immediately after they are implemented and policies need to be reviewed promptly following relevant case law developments ⁷⁷

Due to housing demand, cost and supply, local authorities are presented with very significant challenges and costs in sourcing suitable temporary accommodation for NRPF families. Accommodation can therefore range from private tenancies, where the local authority may have made arrangements with specific providers, to Bed and Breakfast (B&B) or hotel rooms.

Examples of temporary accommodation used to house NRPF families:

• The local authority’s Homeless Allocations Team sources accommodation, which is funded through the local area team’s Section 22 budget. The family would not have a homeless tenancy agreement.
• Children’s Services fund a Women’s Aid refuge placement for a family where the mother is fleeing domestic abuse enabling the mother to obtain specialist support provided by the refuge.
• A charity, Praxis, provides temporary accommodation with additional support, including immigration advice, to NRPF families supported by local authorities in London. The accommodation was purchased using funds from social investors and the local authority pays for a family’s placement. ⁷⁸

It is essential that the local authority undertakes regular reviews and checks on the wellbeing of children, and ensures that levels of support are sufficient, in order to reduce the risk of any harm being experienced by children whilst the family remains reliant on social services for all material support. 

8.6 Reporting Duties

Part 1 of the Children and Young People (Scotland) Act places a duty on public authorities to publicly report every three years on what they have done to ‘secure better or further effect within its areas of responsibility of the United Nations Convention on the Rights of the Child (UNCRC) requirements’.

The following articles are of particular relevance when seeking to reduce the impact of poverty and destitution on children whose parents have no recourse to public funds (NRPF) or an insecure form of immigration status:

• Article 2 (non-discrimination)
• Article 3 (best interests of the child)
• Article 6 (life, survival and development)
• Article 9 (separation from parents)
• Article 12 (respect for the views of the child)
• Article 26 (social security)
• Article 27 (adequate standard of living)

Local authorities may also wish to consider duties within the Child Poverty (Scotland) Act 2017 which require local authorities and health boards to jointly prepare and report annually on steps they are taking to reduce child poverty.