The Ombudsman's final decision:
Summary: Miss X complained about the Council’s decision to stop support for her children because it considered she had not applied to the Home Office for leave to remain in the UK. There was fault in how the Council made this decision. It has agreed to apologise to Miss X, pay her £200 and review its future approach to considering whether there is evidence of applications to the Home Office.
- Miss X complains the Council wrongly decided to stop support for her children as Children in Need. She says it made this decision, ignoring evidence she provided of her application to the Home Office for leave to remain.
- She says the Council’s Human Rights Assessment did not properly consider the circumstances for her children. She also complains the social worker acted inappropriately and the subsequent statutory children’s complaint procedure investigation did not properly consider her complaints.
- She says these faults caused distress to her and her children.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
- I spoke to Miss X’s representative, Miss Y.
- I considered the Council’s response to my enquiries.
- I considered the No Recourse to Public Funds Network guidance.
- I considered the Ombudsman’s guidance on remedies.
- I gave the Council and Miss X the opportunity to comment on my draft decision.
What I found
- The Immigration and Asylum Act 1999 states certain people subject to immigration control have “no recourse to public funds” (NRPF). This includes people who have overstayed their visa. People who have no recourse to public funds cannot access certain benefits and services. The Home Office is responsible for determining someone's immigration status.
- If someone is unlawfully present in the UK (including if their visa has expired) then councils must not assist them, other than to prevent a breach of their human rights.
- Councils must carry out a Human Rights Assessment before deciding to withdraw certain services, such as support for children in need. This is to assess the potential impact of the decision on the person’s human rights. This assessment should consider the impact of the decision on the welfare of any children affected.
- The No Recourse to Public Funds Network is a membership organisation of councils and other organisations dealing with persons with NRPF. It issues detailed practice guidance on council duties and responsibilities for people with NRPF.
- The Network’s guidance for councils on checking immigration status advises them what to do in situations when someone’s immigration status is uncertain. It says sometimes the Home Office’s systems do not immediately show that the person has made an application with them to remain in the UK. This means if the council asks for a ‘status check’ the Home Office may not have evidence, even though the person has made an application. The Home Office may take several weeks to even issue an acknowledgement letter to confirm receipt of an application.
- The Network therefore advises councils to ask the applicant for a copy of the application and for proof of postage as the basis for deciding whether the person has an application in progress. The Network’s guidance is not statutory but is recognised and followed by local authorities and other bodies including central government. The children’s trust involved in this complaint is not a member.
Statutory children’s complaints
- The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation).
- If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
- Miss X came to the UK on a student visa having been born outside the UK. She had two children born in the UK. She became an overstayer. She was unable to work because of an injury. In 2014 she contacted the Council’s children’s trust (I call this the Council from now on) for help. It advised her to apply to the Home Office for leave to remain as her student visa had expired. It decided her children were Children in Need. It provided the family with some support including with accommodation over following years under Section 17 of the Children Act. Miss X did not apply for leave to remain.
- In 2017 the Council decided it needed to consider whether, in light of Miss X’s unchanged immigration status, it still had a duty to meet the family’s needs. It decided to carry out a Human Rights Assessment (HRA) to decide whether it could stop support, having reviewed the impact of this on the children.
- An officer visited her in July 2017 to discuss this with her. The officer explained the options and advised her to apply to the Home Office to regularise her status. Miss X later complained about the officer’s conduct at this meeting, saying he accused her of lying.
- The Council carried out an HRA in early July. It said Miss X had not made an application to the Home Office. It noted Miss X was being helped by advice Organisation Z and that, with its help, she would apply to the Home Office shortly.
- The HRA said there were no practical or legal barriers preventing Miss X returning to her country of birth. It said she would be in a better position to meet her children’s needs there and would be able to work. It said the Council stopping support would not breach the family’s human rights. It was in the family’s best interests if Miss X returned to her country of birth.
- The assessment recorded discussion with Miss X about options. Miss X later disputed the accuracy of this record. It says she considered the children were British and she would struggle to find work in her country of birth. The Council concluded that her return was reasonable and proportionate in respect of her human rights. It considered matters such as Miss X’s inability to legally work in the UK and that Section 17 of the Children Act did not give an absolute right to services for her children.
- It explained it would give Miss X a further three weeks to apply to the Home Office and would continue to provide temporary accommodation during this time. If, after then, it did not have proof she had applied, it would give two weeks notice. After then it would end support and advise Miss X about going to her country of birth.
- In August, Miss X, working with Organisation Z applied to the Home Office for leave to remain. She provided the Council with proof of postage and a covering letter. The Council made an enquiry of the Home Office, sending it a copy of the proof of postage. The Home Office told the Council it had no record of an application. The Council stopped providing support to Miss X on 1 September 2017.
- Later in September the Home Office confirmed to the Council that it had an application from Miss X. The Council withdrew its letter ending support under Section 17 of the Children Act. It restarted support pending the Home Office’s consideration of her case. The Home Office eventually decided Miss X could remain living in the UK.
- Miss X, meanwhile, complained to the Council about the HRA and the conduct of the officer who had visited her during the process. She said the officer had called her a liar and shouted at her. It considered her complaint at all stages of the children’s statutory complaint procedure. At stage 2 the Council involved an independent person as required who agreed with the investigation findings.
- At stage 2, in respect of the matters covered by this complaint it found:
- The Council had appropriately considered the status of her application to the Home Office in its HRA. It had checked with the Home Office, including sending it proof of postage. It was entitled to conclude based on what the Home Office told it, that there was no pending application.
- The Council was entitled to decide Miss X could be supported in her birth country to meet her children’s needs. It had considered whether she could get a job there.
- It could not reach a finding about what happened regarding the officer’s conduct. The officer’s manager said they had spoken to the officer about what Miss X said happened and asked him to reflect on his language and behaviour. But the manager had not witnessed the alleged behaviour and had now left the Council so could not be interviewed.
- The Council should change the assessment form for the HRA so it referred to legal advisors as well as immigration solicitors.
- Where councils have investigated complaints through the statutory children’s complaint procedure we will not normally reinvestigate unless there was fault in how the earlier investigation was carried out.
- The stage 3 panel noted the stage 2 investigation report had not provided enough context to fully understand the complaint. The panel carried out further research and provided that context, filling in the gaps. This earlier omission did not mean the stage 2 findings were incorrect, only that its report was incomplete. The stage 3 panel report appropriately completed this background.
- Apart from this, the stage 2 and 3 investigations were carried out in accordance with statutory guidance. I have not therefore reinvestigated the accuracy of the HRA as I cannot meaningfully add to the conclusions reached by the stage 3 panel.
- The stage 3 panel’s conclusion about Miss X’s allegation regarding the officer’s action, however was confusing. On the one hand it concluded the use of the phrase “that was a lie” was totally inappropriate. However, it did not go on to recommend a remedy for injustice caused to Miss X by that fault. It should have done so and its failure to do so was fault.
- The Council accepted all the other recommendations and has provided evidence it has carried out the actions required. I have therefore not therefore reinvestigated these matters.
- The key point of continued disagreement is whether the Council was correct in deciding not to accept proof of posting as evidence Miss X had submitted an application to the Home Office.
- The Council took steps to confirm whether an application had been made. It asked this question directly of the Home Office and acted accordingly when told, based on evidence then available, the application had not been made.
- According to the NRPF Network guidance it should have accepted proof of posting as enough evidence to put action on hold. This is relevant guidance issued by an advisory organisation of councils and partners. Members include councils, voluntary bodies, central government, the police and NHS. Whilst this council (children’s trust) is not a member, this does not justify its decision to disregard its guidance on behalf of the sector.
- We normally expect councils to follow guidance unless they can give evidence-based reasons why, in the circumstances of a particular case, they should not do so. The Council has not explained why it should not follow this guidance, other than by saying it is not a member of the Network and so the guidance is not binding on it. This is fault. In any case the Council should have considered whether Miss X’s application might have been received by the Home Office but not yet processed. There is no evidence it asked the Home Office if it was working with a backlog. It made no further checks on whether an application had been made, apparently because it did not believe Miss X.
- Miss X suffered avoidable distress and loss of support for a short period because of this fault. There is the potential for others to be affected by this fault in the future. I have recommended actions to prevent this and remedy injustice to Miss X which the Council has agreed to take.
- Within one month of my final decision the Council will:
- Pay Miss X £200 as a token remedy for distress and loss of service caused to her by its decision to stop support.
- Apologise to Miss X for upset caused by the officer’s statement about her.
- Review its approach to evidence regarding proof of postage, with reference to the No Recourse to Public Funds guidance. This should provide reasoned explanation for its subsequent decision either to adopt or reject adoption of this change.
- I have completed my investigation. I have found fault causing injustice. The Council has agreed action to remedy this injustice and prevent reoccurrence.
Investigator's decision on behalf of the Ombudsman