When can social services lawfully withdraw support from people with no recourse to public funds and what safeguards must they follow? Drawing on recent legal advice to a local authority, solicitor Hannah Moses unpacks the complex duties facing social services, the crucial role of Human Rights Assessments for failed asylum seekers, and demonstrates that the Localism Act 2011 provides only limited scope for addressing such support obligations.
Under some circumstances, social services provide support to individuals with no recourse to public funds (‘NRPF’) but with increased demand and shortage of resources, what legal duties are local authority social services under to provide such support and when can such support be withdrawn or refused?
Here we will look at social services duties towards individuals with NRPF, when a Human Rights Assessment should be completed and whether The Localism Act 2011 ever has a role to play in supporting individuals with NRPF.
Public funds
A person who is subject to immigration control is, pursuant to section 115 of the Immigration and Asylum Act 1999 (‘IAA’), a person who has NRPF; immigration control meaning they require leave to enter or remain but do not have such leave or, have such leave but also have a NRPF condition or a maintenance undertaking.
However, social care services are not classed as public funds for immigration purposes and under certain circumstances, individuals with NRPF may be assessed for social care services. Such social care services include support for families with a child in need and individual adults under the Children Act 1989 or the Care Act 2014.
An important exception to this rule exists, however, in schedule 3 of the Nationality, Immigration and Asylum Act 2002 (‘NIAA’). This excludes four groups of people from accessing social services support, except where withdrawing or withholding support would constitute a breach of their rights under the European Convention on Human Rights and Human Rights Act 1998 (‘Human Rights’). The four groups, found within schedule 3 NIAA at paragraphs 4, 6, 7 and 7A, are people with refugee status in an EEA country, failed asylum seekers who fail to comply with removal directions, people unlawfully in the UK, and failed asylum seekers with dependent children who are certified by the Home Office as failing to leave voluntarily.
In such cases, the local authority should complete two assessments. The first is the assessment required to identify whether the individual is in fact eligible under the normal criteria for the social services support, for example a Care Act Needs Assessment. If the individual is eligible for that support under the normal criteria, then the second assessment for the local authority to complete is a Human Rights Assessment. This will identify whether the NIAA requires the support to be withheld or withdrawn notwithstanding their eligibility under the usual criteria.
Human Rights Assessments
A Human Rights Assessment should therefore be undertaken when an individual is within one of the four groups found in schedule 3 NIAA and meets the usual criteria for social services support.
Schedule 3 of NIAA does not create a power to provide support, so a Human Rights Assessment is not necessary if a person does not qualify for social services support, for example where a needs assessment concludes an adult does not have eligible care needs. This is the case even if the individual would be destitute without assistance. A Human Rights assessment is only required when refusing or withdrawing support from someone who would otherwise qualify for such support.
A Human Rights Assessment often turns on case specific facts and so it is advisable to take such issues on a case by case basis, looking at whether a local authority’s decision to end or not provide support would breach a person’s Human Rights, in particular their rights under Article 3 (Prohibition on torture), Article 6 (Right to a fair trial) and Article 8 (Right to respect for private and family life). It is perhaps Article 3 which arises most often, and the general rule is that a decision which requires a person to sleep rough or be without food, shelter or funds usually amounts to a breach of their Article 3 right unless they are able to return to their country of origin.
Circumstances which prevent an individual from returning to their country of origin can include outstanding legal proceedings, medical needs preventing travel, inability to obtain travel documents, internal changes within the country of origin and inability to fund a return. The local authority should consider whether these barriers can be overcome by, for example, obtaining travel documents, funds or assistance to return through the Home Office voluntary return scheme. If barriers to return are identified and cannot be overcome, and without support there would be a Human Rights breach, then the local authority should provide the support.
Where there are no barriers to return or the barriers can be overcome, the local authority should consider whether a return would result in a Human Rights breach and the local authority should give regard to the decision of the Home Office on this point as well as to any court or tribunal decisions. Where the Home Office has already concluded that a return would not result in a breach of Human Rights, the person would have to present evidence to show that the personal or home country situation has altered sufficiently to warrant the local authority providing services, at least pending the person making a new application or further submissions to the Home Office. Where the individual is eligible for social services support but the Human Rights Assessment concludes that they can reasonably be expected to return to their country of origin to avoid a Human Rights breach arising from their destitution in the UK, social services support should not be provided. Instead, the local authority may offer assistance with return.
If the person has NRPF but does not fall within any of the four groups named within Schedule 3 of NIAA, a Human Rights Assessment is not required when determining whether the person is eligible for the support; instead only the usual eligibility criteria for the relevant social services support are applicable. It is also of note that Schedule 3 of NIAA does not apply to children under 18 who are looked after by the local authority, including unaccompanied asylum seeking children. However, it does apply when they turn 18 if they fall into one of the four relevant groups. At that point a Human Rights Assessment is required to identify if support under the Children Act 1989 should be withheld or withdrawn.
The social services support caught by schedule 3 of NIAA includes support for families with a child in need and individual adults under the Children Act 1989 or the Care Act 2014. Interestingly, it also excludes support under section 1 of the Localism Act 2011, the local authority general power of competence.
The Localism Act 2011
Section 1 of the Localism Act 2011 (LA 2011) provides local authorities with a general power of competence, giving authorities the same power to act that an individual generally has. A local authority may find itself under pressure to use this power to provide support to individuals who have NRPF and are not eligible for the usual social services support, either because they are not eligible under the normal criteria, for example they are assessed as having no eligible care needs, or because they are within one of the four groups in schedule 3 NIAA and a Human Rights Assessment concluded support can be withheld. In some circumstances, the general power of competence may allow a local authority to provide support to someone who has NRPF but there are two key considerations that determine its suitability for use.
The local authority must firstly consider whether section 1 LA 2011 can be used in the circumstances of the case at hand by considering whether there is a pre or post commencement limitation preventing the provision of the type of support required. If the general power of competence can be used in the circumstances, the local authority must secondly consider whether the person belongs within any of the four groups found in schedule 3 NIAA and if they do, then complete a Human Rights Assessment to determine whether support should be withheld. This is because the four groups found within schedule 3 NIAA are excluded from receiving support under the LA 2011, except where withdrawing or withholding support would constitute a breach of their Human Rights.
So the local authority must first establish whether the LA 2011 can be used in the circumstances by applying the case law – just as they would first consider if the eligibility criteria within the Care Act 2014 apply – and only if it applies should a Human Rights Assessment then be completed to determine whether Schedule 3 of NIAA requires the support to be withheld. If the LA 2011 cannot be used in the circumstances, then a Human Rights Assessment is not required as that would be to assess whether support should be withheld when such support could not be provided in the first instance.
The general power of competence found in section 1 of the LA 2011 is limited by section 2 of the same Act. Section 2 of the LA 2011 sets out the boundaries of the general power of competence: the general power cannot be used where there is a pre or post commencement limitation on its exercise. Section 2 of the LA 2011 helpfully defines pre and post commencement limitations as a prohibition, restriction or other limitation expressly imposed by a statutory provision. The relevant case law suggests that the circumstances in which section 1 LA 2011 can be used to provide support are very limited. Notably the judge in R (Shehab Aburas) v London Borough of Southwark [2019] EWHC 2754 (Admin) commented that:
‘I am conscious that the 2011 Act is one statute within a long list of provisions included within NIAA02 Schedule 3 paragraph 3 which can be relevant to secure Convention compatible action in the case of a person excluded under Schedule 3 Paragraph 7. That can be seen to raise the question in what circumstances could the 2011 Act perform that human rights compliance function. It is not necessary or appropriate for me to resolve this point. I am not saying that the 2011 Act never has a role to play in securing Convention rights. Whether and when it has such a role will fall to be analysed as and when an appropriate case arises. It would, in my judgment, be a case concerning neither a need for accommodation, nor a ‘looked-after need’, but something else.’
If the person requires support of a type not prohibited by a pre or post commencement limitation preventing the use of the power, then a Human Rights Assessment should be completed and the outcome of that assessment will determine whether the local authority should provide support to the person by using the general power of competence. However, if the support required is a type prohibited by a pre or post commencement limitation then the LA 2011 cannot be used by the local authority to support the individual and it is not necessary to complete a Human Rights Assessment, even if the individual would be destitute without assistance.
Is the local authority under a duty to support?
A local authority is therefore under a duty to provide social services support to a person who has NRPF when that person is:
It follows that social services support can be withheld or withdrawn when the person is:
- Not eligible under the normal criteria or
- Eligible under the normal criteria but
- They are also within one of the four groups found in schedule 3 of NIAA and
- A Human Rights Assessment concludes that they can reasonably be expected to return to their country of origin to avoid a Human Rights breach.
Accordingly, the local authority must complete a Human Rights Assessment when the person is eligible under the usual criteria for social services support and within one of the four groups found in schedule 3 of NIAA.
The general power of competence may in some cases have a role to play in supporting individuals with NRPF, but schedule 3 NIAA still applies to support provided under section 1 LA 2011. The general power of competence can be used by a local authority to provide support where the person is:
- In need of support of a kind which is not covered by a pre or post commencement limitation preventing the use of the power and either
- They are not within the four groups found in schedule 3 of NIAA or
- They are within one of the four groups, but a Human Rights Assessment concludes that the person cannot reasonably be expected to return to their country of origin and without support there would be a Human Rights breach.
It follows that support under section 1 LA 2011 cannot be provided if:
- The support required is a type prohibited by a pre or post commencement limitation or
- The person is within one of the four groups found in schedule 3 of NIAA and a Human Rights Assessment concludes that they can reasonably be expected to return to their country of origin to avoid a Human Rights breach.
Support from Invicta Law
Invicta Law provides practical advice and training to local authorities on their responsibilities towards individuals with No Recourse to Public Funds (NRPF), including guidance on Human Rights Assessments and statutory duties. Our team reviews decisions, quality assures assessments and represents local authorities in judicial review challenges and other legal proceedings related to NRPF support. If you need support in any of these areas, please email asylumteam@invicta.law and a member of our team will get back to you.
Hannah Moses is a Solicitor at Invicta Law.
Disclaimer: This article does not constitute legal advice and is provided for general information purposes only. Published 15 October 2025.
