Advising people with social care needs

This page is for housing advisers. If you are a new arrival please click here for information more relevant to you.

This page looks at advising people who may be able to get help from social services if they are ineligible for benefits or housing. Only households including children or vulnerable adults are covered as social services have no remit to help others (the law on young people leaving local authority care is not covered here). It includes some references to relevant case law, and links to the relevant regulations.

What are the housing and benefit rights of people with social care needs?

Generally, most people with social care needs get housing and benefit help from local authorities if they need it. And everyone, regardless of eligibility, must have access to advice and information to prevent homelessness or help them find accommodation if homelessness (Housing Act 1996, s.179; Housing (Wales) Act 2014, s.60). But if they are not eligible for a housing allocation, homelessness accommodation services or universal credit/housing benefit, and are at risk of homelessness and destitution, then they may have to turn to social services for help. This is essentially only a safety net for the most vulnerable, and there are legal restrictions on who can be helped, although help must be provided if it is necessary to avoid a breach of human rights.

Help for families with children in England is provided under the Children Act 1989 with powers under s17 of the Act for local authorities to offer money or goods in kind to ensure that the welfare of 'children in need' is protected. Local authorities must also accommodate a child if s/he has no parents able or willing to accommodate him/her: this is under s20 of the same Act.

In England, help for vulnerable adults is provided under Part 1 of the Care Act 2014, in particular sections 18 and 19.

Under section 9 of the Act the social services authority must assess the needs of any person who contacts them who appears to ‘have needs for care and support’. However, the authority must not provide support to anyone who is excluded from benefits because they are subject to immigration control and their needs for care and support have arisen solely because of destitution or ‘the physical effects, or anticipated physical effects of being destitute’ (s21, Care Act 2014).

The care and support needs of adults are assessed against national criteria set by the eligibility regulations. If the person’s needs arise from ‘physical or mental impairment or illness’ (and this may include needs arising from trauma or extreme distress) and as a result the person cannot achieve two or more ‘outcomes’ from the list below, or can only achieve them with assistance, or with ‘significant pain, distress or anxiety’ or at risk to themselves or another, or with assistance but they take ‘significantly longer than would normally be expected,’ then the authority must decide how to meet those needs, and this may include providing accommodation and support.

The outcomes for the eligibility criteria are (Regulation 2):

‘(a) managing and maintaining nutrition;

(b) maintaining personal hygiene;

(d) being appropriately clothed;

(e) being able to make use of the adult’s home safely;

(f) maintaining a habitable home environment;

(g) developing and maintaining family or other personal relationships;

(h) accessing and engaging in work, training, education or volunteering;

(i) making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and

(j) carrying out any caring responsibilities the adult has for a child.’

Restrictions on social services help in England

Social services cannot provide Care Act 2014 Part 1 accommodation or support to certain groups of people based on their nationality/immigration status (Nationality, Immigration and Asylum Act 2002, schedule 3, para 1 (1)(n), unless they must do so to avoid a breach of their human rights (schedule 3, para 3). These restrictions do not apply to children but may apply to their parents. The groups affected are:

Persons with refugee status elsewhere in the EEA but not in the UK.
Refused asylum seekers who do not cooperate with removal directions.
People in the UK in breach of the immigration laws who are not asylum seekers (including people who have overstayed their leave or entered illegally).

But people in these groups should be helped in exceptional circumstances:

Accommodation and support can be offered to people with children who are awaiting deportation.
Accommodation and support must be offered if it is necessary to avoid a breach of human rights.
Children should always be accommodated (in other words, even if a parent is excluded a child should be accommodated or looked after).

The Home Office is generally responsible for the accommodation and support needs of families with children who are applying for asylum. Vulnerable adults, however, should be accommodated and supported by the social services department to which they apply for help. If they have children, the Home Office will contribute towards the costs of accommodation and support.

Problems with getting social service support in England

Getting help from social services in these circumstances may be difficult and those needing it should get advice from a solicitor, advice centre or specialist organisation. It is also an area in which case law is continually developing and where legislation has recently changed.

It is important to stress that social services should always assess the need when approached, doing either a 'Child in Need' assessment under the Children Act 1989 or a Care Act 2014 assessment (in England) for a vulnerable adult. Accommodation and support should be provided while this assessment takes place, if it is needed.

Generally, social services will contact the Home Office if approached, to tell them about the application and check on status. They are obliged to contact the Home Office if considering accommodating somebody under one of the exceptions noted above.

Social services can, if considering accommodating someone under one of the exceptions, offer the fare home for the applicant and his/her family, if no breach of human rights would be caused as a result. An example of a breach (in this case a breach of Article 8: the right to family life) occurred where the offer was made to the child and her non-resident father, and so was unacceptable (and the local authority was told to provide accommodation and support while the Home Office dealt with an application to stay): R (M) v Islington LBC [2003] EWHC 1388 Admin.

If an applicant is considering applying to stay in the UK on human rights or related grounds, this application is usually dealt with via the asylum system if the human rights are those against cruel or degrading treatment (article 3). Social services may be approached for help before such an application is made and will have to accommodate and support until the Home Office makes the necessary arrangements via the asylum support system. Applications based on family and private life (article 8) often, for example, because of the long residence of children or their need to maintain contact with another parent, make it impossible for local authority social services departments to refuse support (unless the application is hopeless or abusive). Support should be provided until the Home Office decide the application: Birmingham CC v Clue [2010] EWCA Civ 460.

Social services should also support families who have a right to reside based on the presence of a UK citizen child (see advising people with limited leave to remain for more on this) if they are unable to access benefits or housing in other ways: R(U) v Newham LBC [2012] EWHC 610 (Admin)(case note, Legal Action, May 2012, page35). Families with this type of right to reside are entitled to work and claim contribution-based benefits but are ineligible for a housing allocation, homelessness services and most means-tested benefits.

Social care in Wales

In Wales, help for vulnerable adults and for children is provided under Part 4 of the Social Services and Well-being (Wales) Act 2014 (SSWBA 2014).

Section 37 contains the duty to provide care and support for a child in the local authority’s area if s/he has an eligible need for care and support or it is necessary to provide such care and support to protect him/her from abuse, neglect or other harm or the risk of these. These include the powers to accommodate and support the child’s carers and other family members as well.

Vulnerable adults may apply to local social services for help under SSWBA 2014. The authority must carry out an assessment of need under s35, and, if the person is assessed as meeting the eligibility criteria and needing accommodation, the local authority has a duty to provide or secure it.

The eligibility criteria for care and support are defined in the regulations. An eligible need is one where (regulations 3 and 4):

‘(a) the need arises from the adult or child’s physical or mental ill-health, age, disability, dependence on alcohol or drugs, or other similar circumstances;

AND

(b) the need relates to one or more of the following:

(i) ability to carry out self-care or domestic routines;

(ii) ability to communicate;

(iii) protection from abuse or neglect;

(iv) involvement in work, education, learning or in leisure activities;

(v) maintenance or development of family or other significant personal relationships;

(vi) development and maintenance of social relationships and involvement in the community; or

(vii) the adult’s fulfilment of their caring responsibilities for a child, or the child’s developmental goals;

AND

(c) the need is such that the adult, or (in the case of a child) the child or his/her parents are not able to meet that need, either:

(i) alone;

(ii) with the care and support of others who are willing to provide that care and support; or

(iii) with the assistance of services in the community (including the child’s parents or person acting in that role) to which that person has access;

AND

(d) that person is unlikely to achieve one or more of the his/her personal outcomes unless:

(i) the local authority provides or arranges care and support to meet the need; or

(ii) the local authority enables the need to be met by making direct payments’.

Once the applicant is assessed as eligible, the local authority should provide accommodation and/or support as needed or work with other services including the voluntary sector to ensure it is provided.

Restrictions on social services help in Wales

The restrictions on support for children and vulnerable adults based on the person’s nationality or immigration status apply in the same way as in England (Nationality, Immigration and Asylum Act 2002, schedule 3 para 1(1)(o).

Getting other accommodation

Anyone with social care needs can get housing from a housing association, but may face problems if they cannot pay the rent and cannot access housing benefit.