Summary: Miss B complains that the Council has not properly dealt with her request for assistance as a person with no recourse to public funds. The Council was at fault because it delayed assessing Miss B’s needs. Miss B has missed out on financial support. The Council should apologise to Miss B and pay her £302 for the financial support she did not receive.

The complaint

1. The complainant, who I shall refer to as Miss B, complains that the Council has not dealt with her request for assistance as a family with No Recourse to Public Funds (NRPF) properly because:

• she was repeatedly referred between Children’s Services and Housing without any assessment or action being taken to help her.
• it delayed an initial assessment of her circumstances and need.
• it delayed beginning an assessment under s17 of the Children Act 1989.
• subsistence payments made to her are not adequate.
• it did not deal properly with her complaints.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.

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How I considered this complaint

5. I have spoken to Miss B about her complaint and considered the information she has provided to the Ombudsman. I have also considered the Council’s response to my enquiries.
6. I have written to Miss B and the Council with my draft decision and considered their comments.

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What I found

No recourse to public funds

7. People who are subject to immigration control may have ‘no recourse to public funds’ and be unable to access a number of benefits, including universal credit, housing benefit, and council tax reduction.
8. The Council Social Services team assesses those families for support and accommodation where they would otherwise be destitute.

“Section 17 support”

9. Section 17(1) of the Children Act 1989 imposes a duty on councils to safeguard and promote the welfare of children within their area who are in need, and promote their upbringing by their families. The law gives councils a power to decide to meet a child's assessed need.
10. Councils undertake assessments of the needs of the children to determine which services to provide and what action to take. Councils may provide a range and level of services appropriate to those children’s needs. This can include providing accommodation and financial assistance.
11. There is no statutory guidance on how much financial assistance may be provided, but councils may have regard to the Home Office payments under Section 95 of the Immigration and Asylum Act 1999 of £37.75 per week.
12. Adults in the country unlawfully are not eligible for Section 17 support under s54 of the Nationality, Immigration and Asylum Act 2002. However, following the Birmingham City Council v Clue (2010) appeal court judgment, councils are required to provide assistance to a family until a human rights claim is determined.
13. Social services have the power to provide emergency support (housing and financial assistance) before an assessment is undertaken or completed.

The Council’s complaints procedures

14. The Council has a two stage corporate complaints process.
• At stage one, local resolution, the Council aims to give a detailed reply within 20 working days.
• At stage two, review, a senior Council officer will reconsider the complaint and send a response within 20 working days.
15. The law sets out a three-stage process for councils to follow when looking at complaints about children’s social care services.

What happened

16. Miss B lives in the UK but is not a UK citizen. She had been granted leave to remain in the UK. She had the right to live and work in the UK until 1 March 2019 and had been employed for six years with her previous employer. She lives in private rented accommodation with her son, C, who is now 17 years old.
17. Miss B’s adult daughter lives elsewhere with her children. Her adult son lives with his girlfriend at her address.
18. On 7 March 2019, Miss B submitted an application to the Home Office for indefinite leave to remain under the 10 year Long Residency route. This application has not yet been determined.
19. Miss B’s employer terminated her employment because she had lost the right to work. Miss B appealed against her employer’s decision and received a final outcome on 30 April 2019, confirming that her employment was terminated.
20. Miss B‘s son also lost the right to work. Miss B’s two adult children could only provide her with limited financial support and she relied on foodbank vouchers.
21. Miss B approached the Council to ask for help with her situation. Encompass (a Local Authority Trading Company (LATC) which delivers housing services for the Council) and the Council’s Social Services department spoke to Miss B and said it was not possible to help her.
22. Miss B telephoned Encompass several times. Miss B also had further contact with Social Services. She was advised she was not eligible for assistance with housing and to seek immigration advice from the Citizen’s Advice Bureau (CAB).
23. On 31 May 2019, Miss B’s landlord issued her with an eviction notice, because of significant rent arrears.
24. Miss B contacted the Council and spoke with Social Services over the telephone. The Council advised her to contact the Multi Agency Safeguarding Hub (MASH). The MASH advised Miss B to return to the Council and explain that she needed to speak to Social Services face to face.
25. On 5 June 2019 Miss B went to the Council’s civic offices. She was told that it would not be possible to speak with Social Services directly, but that the Council would take copies of any documents. Miss B provided the Council with documentary evidence including:
• copies of expired residence permits for her and her son.
• the eviction notice and tenancy agreement.
• confirmation that her employment had been terminated.
• evidence of her application to the Home Office for indefinite leave to remain.
26. Encompass told Miss B that her documents would be sent to Social Services and someone would contact her by the end of the day.

Miss B’s complaint

27. Miss B made a formal complaint to the Council because no one had contacted her by 7 June 2019. She complained that the Council had not completed an adequate needs assessment and asked the Council to carry out a formal assessment under s17 of The Children’s Act 1989.
28. Miss B complained to the Ombudsman on 7 June. On 17 June, the Council told the Ombudsman Miss B’s complaint was with the referral and assessment service (RAS) who would complete a child and family assessment. The Council confirmed it would send a reply to Miss B by 20 June.
29. Miss B says she did not hear anything from the Council and contacted the Ombudsman again. The Council informed the Ombudsman that the manager of the assessment team had now telephoned Miss B and that a child and family assessment was underway.
30. Miss B contacted the Ombudsman to provide an update about her complaint. She said that a social worker had visited her but that she still had concerns about her situation, particularly about her housing circumstances.

Analysis

31. Miss B’s current situation arose because she did not submit her application to remain in the UK to the Home Office by the required date. This has resulted in her being unable to work and pay her rent. This is not the Council’s fault.

S17 assessment

32. Miss B first contacted the Council about her situation on or around 1 May 2019, when she learned that her employment had been terminated and she was in financial distress.
33. The Council did not ask for any evidence or documentation from Miss B about her circumstances. It was not until 1 June that Social Services advised Miss B to contact the MASH. The MASH then advised Miss B to provide all documents to the Council.
34. Miss B provided her documentary evidence to the Council on 1 June. She complained to the Council and requested a s17 assessment on 7 June. The Council acknowledged receipt of her complaint on 10 June. On 17 June, the Council told Miss B that it would conduct a s17 assessment and a social worker would contact her.
35. The Council considered Miss B’s circumstances on 20 June. It was aware of her immigration status, her inability to work, her rent arrears, the eviction process and her financial problems. It recommended a range of actions including a home visit and that a s17 assessment be completed by 25 July.
36. On 27 June, the Council made a home visit to Miss B. It also obtained an update from the Home Office about her application for residency. The Council decided to provide financial support under s17 from 2 July when it was fully aware of Miss B’s circumstances.
37. I am content that it was foreseeable, from the beginning of May, that Miss B would be at risk of losing her home, because she was able to evidence that she had lost her right to work and her employment.
38. The Council did not advise Miss B to provide supporting documentary evidence of her problems when she first contacted it. Had it done so, the Council would have had sufficient information to be able to begin a s17 assessment in May. This information was reinforced when Miss B received an eviction notice from her landlord on 31 May.
39. There was an avoidable four-week delay between Miss B contacting the Council to ask for help and the Council beginning a s17 assessment and considering evidence about this. There was no undue delay by the Council in considering Miss B’s situation, after she made her complaint.
40. This is fault by the Council. Miss B had to repeatedly contact the Council before she obtained the correct advice from the MASH. There was sufficient information for the Council to begin a s17 assessment when she first asked for help. Miss B should not have had to wait four weeks and complain to the Council before it agreed to complete a s17 assessment. Miss B has missed out on financial support because of the delay in commencing the assessment.
41. The s17 assessment process should take no longer than 45 working days. The Council has said the s17 assessment will be completed by 25 July, two weeks before her eviction date. This date has passed and Miss B has been evicted. The Council says that it has not yet completed the s17 assessment but has provided Miss B with temporary accommodation.
42. If the Council had started a s17 assessment in early May, it should have been completed by early July. The delay by the Council in starting a s17 assessment has resulted in a three-week delay in completing the s17 assessment within the necessary timescale. This is fault by the Council. However, Miss B has not suffered any injustice as a result because the Council has provided housing assistance, even though the s17 assessment has not been completed. The delay in completing the assessment has not affected Miss B’s financial assistance.

Subsistence payments to Miss B

43. The Council’s guidance says that the rate of support offered will be £37.75 per person. The Council’s guidance also says that although these are standard payments, provision allows for additional payments to be made based on the section 17 assessment and children’s individual needs.
44. The Council has provided Miss B with a weekly payment of £75.50 from 2 July 2019. The s17 assessment for Miss B has not yet been completed by the Council. This is not fault by the Council because the subsistence payments being made to Miss B comply with the Council’s guidance.

Miss B’s complaint to the Council

45. The Council dealt with Miss B’s complaint. She requested the Council complete a s17 assessment and it is doing this.
46. The Council said it would send a reply to Miss B about her complaint by 20 June. I have not seen any evidence that it has provided Miss B with a detailed reply to her complaint at stage one of its complaint process. This is fault by the Council. The Council has informed Miss B that is carrying out a s17 assessment, but Miss B does not know whether the Council has considered all aspects of her complaint.
47. Miss B has made a further complaint to the Council about the way in which the s17 assessment has been completed, which it should deal with through the statutory Children’s Services complaints process.

Agreed action

48. To remedy the injustice caused by the fault I have identified the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Miss B.
• Pay Miss B £302, in respect of the 4 weeks of financial support that she missed because of the delay in beginning the s17 assessment.

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Final decision

49. I have found that the Council was at fault because it delayed beginning an assessment under s17 of the Children Act 1989. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman