How local authorities should support NRPF families in need Following a case brought by Central England Law Centre against Birmingham Children's Trust in 2023 important legal issues were raised about how local authorities should meet the needs of children and families with No Recourse to Public Funds ("NRPF"). Read more about the ruling Below are useful resources which have been designed to be used by anybody supporting families with No Recourse to Public Funds (NRPF) to help them understand the requirements for local authorities to provide section 17 support when a child or children are 'in need' of financial support. Which children are entitled to what level of support, after the judgement in BCD v BCT (January 2023)? Download our flow chart Who does this ruling apply to? It applies to any child in need who is eligible for Section 17 support who is cared for by a foreign national adult (and their relevant family members). What did the claim focus on? The claim focused on the inadequacy of Birmingham’s support for children in need, in particular payment of section 17 financial support between February and August 2021 to a family in Birmingham which comprised children being cared for by a foreign national adult in the UK on a visitor permit who had NRPF. The case was based on discrimination and focuses on the complex statutory machinery that excludes migrants from benefits and community care services. The judgement defines the different ‘statutory categories’ of Section 17 support in NRPF cases through the prism of Schedule 3 to the Nationality Immigration and Asylum Act 2002 and the ‘ECHR breach cap’ and confirms the difference between a ‘subsistence standard’ and ‘welfare standard’ of support. Read more about the ruling What did the court ruling find? The Court decided that it is unlawful for a local authority to pay children in need who are cared for by foreign national adults with the right to be in the UK the same level of support as asylum seekers because they are in different statutory categories. Those families in which the carer is a foreign national adult with the right to be in the UK are entitled to the welfare standard level of support. Where can I find more information about Birmingham’s NRPF policy? Central England Law Centre has produced a briefing on Birmingham's updated NRPF policy. Read briefing How does the judgement differentiate between different categories of foreign-national adult carers of dependent children in order to decide the extent of financial support by a local authority? The judgement describes two different categories of foreign-national adult carers of dependent children with ‘no recourse to public funds’: Uncapped families – the foreign national adult has leave to enter or remain in the United Kingdom which is subject to a condition that means they do not have recourse to public funds. This category of family is entitled to a minimum of welfare-standard levels of support. Capped families – the foreign national adult requires leave to enter or remain in the United Kingdom but does not have it. This category of family is entitled to at least a subsistence level of support. What is the definition of an uncapped family (entitled to the welfare standard level of support)? A foreign-national adult carer has leave to remain or permission to stay in the UK, including EU Pre-Settled or Settled Status (nationality of children is irrelevant) Carer of British child (Zambrano carer) Note: There will be lots of families with non-British children who are not capped and must be supported to the welfare standard. This is not about British versus non-British children. The judgement is clear that it is the immigration status of the parent/carer that is key. The welfare standard will require assessment from the local authority as to the child’s needs. Other families should receive at least the subsistence standard. This must be at least the asylum support level but may be higher depending on the family's needs. For support identifying whether a family is categorised as ‘uncapped’ or ‘capped’ see Central England Law Centre's flow chart. What is the definition of a capped family (entitled to at least subsistence level of support)? A foreign national adult who does not have leave to remain and is the carer of a child/children (the carers must both be in this situation or the carer must be the sole carer) (the children also are not British citizens and do not have leave to remain). For support identifying whether a family is categorised as ‘uncapped’ or ‘capped see Central England Law Centre's flow chart. How should an assessment be carried out by a local authority? If a family is uncapped and so qualifies for the welfare standard then they will require assessment from the local authority as to the child’s needs, under section 17 of the Children’s Act. Capped families will need a human rights assessment to ensure child’s Article 8 rights are not breached. They will need to be supported to at least subsistence levels. What entitlements will an uncapped family have at a welfare standard? An assessment of needs must be carried out, but the family will likely be entitled to more than the subsistence standard and as much as welfare benefits levels of support and would include elements, such as toys, recreation, and entertainment. What entitlements will a capped family have? An assessment of their needs. This would cover essential living needs (food and drink, toiletries, healthcare and cleaning items, clothing and footwear, permitted travel and communication). Although this may not cover an allowance for toys, books, or recreational or entertainment expenses, local authorities can decide to support all families of children in need at a welfare standard of support. The BCD judgement is about levelling up support for all uncapped families. It also means that it is no longer acceptable to ever set support levels for a family/children with no recourse to public funds at less than asylum-support rates. There is a strong arguments that ALL children in need are entitled to a welfare standard of support, in accordance with Section 17 of the Children Act and other relevant law. Are there any circumstances where a foreign national adult in the UK who does not have required leave to remain in the UK who is caring for a child/children, could be entitled to a welfare-standard level of support? A human rights assessment must be completed in order to look at whether any human rights would be breached by refusing to support under section 17. This is not just an assessment of Article 3 rights to avoid street homelessness but also Article 8 rights to family and private life. The social worker must look at how developed the child’s family life is and assess their welfare needs with a view to providing support above the subsistence standard. Local authorities will need to consider meeting the costs of toys and other recreational items, entertainment, travel to meet friends and extended family, extra curricular sport or other activities like dance, music lessons etc What is the ECHR breach cap? The ECHR breach cap refers to the amount of support needed to avoid breaching a person’s rights under the European Convention on Human Rights, in conjunction with Schedule 3 Nationality Immigration and Asylum Act (NIAA )2002. Should Birmingham Children’s Trust have updated their NRPF policy prior to this ruling? Yes – financial support rates provided by Birmingham Children's Trust under the old NRPF policy were not in line with subsistence rates paid by the Home Office to asylum seekers, even after the Home Office increased levels of financial support to asylum seekers. Birmingham introduced a new NRPF policy on 1 November 2021 that immediately increased the level of financial support set out in the old policy by about 30% to £196 per week. Why was this not sufficient? The new NRPF policy increased financial support by 30% to £196.24 per week to be in line with weekly subsistence rates paid by the Home Office to asylum seekers. However, this new policy was still problematic, as highlighted in this case, as it meant that a British citizen child in need who was cared for by a relative lawfully in the UK was not provided with adequate support to ensure their welfare. BCD and EFG should have been provided with a much higher rate of support – according to the judge, the same as fostering allowance of £510 per week. Is it lawful for a local authority to decide to support all families (capped and uncapped) at a welfare standard of support? Yes – local authorities can decide to support all families of children in need at a welfare standard of support. The BCD judgement is about levelling up support for all uncapped families. It also means that it is no longer acceptable to ever set support levels for a family/children with no recourse to public funds at less than asylum-support rates. There are strong arguments that ALL children in need are entitled to a welfare standard of support, in accordance with Section 17 of the Children Act and other relevant law. The Article 8 argument in the judgement gives us and others the opportunity to take other cases to improve the situation for others. Manage Cookie Preferences