Exclusion to NRPF support is incompatible with EU Settlement Scheme

10 January 2019

Important information for local authorities providing social services' support to EU nationals 

In order to secure their future residence rights after the UK leaves the EU on 29 March 2019, EU nationals* and their family members, will need to apply for leave to remain under the EU Settlement Scheme. Local authorities need to be aware of how this impacts on their duties to safeguard the welfare of vulnerable adults, young people leaving care, and children within families, specifically when the exclusion to social services' support applies. 

Social services’ duties & exclusion 
Local authority duties to safeguard the welfare of vulnerable adults, young people leaving care and families with a child in need are set out in the Care Act 2014 and Children Act 1989, or equivalent legislation in Scotland, Wales and Northern Ireland. These duties enable a local authority to provide accommodation and financial support to alleviate a person or family's situation of destitution​, and may apply to EU nationals who are unable to claim welfare benefits when they do not meet the right to reside element of the habitual residence test, which is applicable to most income-based benefits. 

For EU nationals, the provision of social services’ support is subject to an assessment of whether the person or family can return to their country of origin to avoid a situation of destitution in the UK, due to an exclusion that is set out in Section 54 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002. This means that return to country of origin can be recommended as an alternative to providing​ support where this would not cause a breach of human rights or EU treaty rights. 

However, the exclusion is inconsistent with the Government’s commitment to preserve the residence rights of EU nationals and their family members through the EU Settlement Scheme, which will confer an entitlement to remain in the UK permanently or on a route to settlement. This, compounded with the current uncertainty​ regarding the qualifying timeframe, leaves local authorities in a situation where it would be very difficult to recommend return as an alternative to providing support to an EU national who has eligible care and support needs, or where there is a child in need within an EU family. Local authorities should therefore be cautious in applying the exclusion to social services’ support, and should seek further advice from their legal teams if there is any uncertainty about how to determine an application for support.​

When support is provided, the local authority will need to proactively assist EU nationals or EU families to take appropriate steps to secure their status under the EU Settlement Scheme in order to comply with child safeguarding and adult well-being duties, and to avoid long-term support costs which may otherwise be incurred.​ More information about this is set out in our factsheet​

Implications for local government 

It is unclear what the full impact of the changes that affect EU residents will be on local government. Although EU nationals currently make up a very small proportion of households receiving social services' support, this is at risk of increasing, and there may also be other impacts:

  • ​​EU nationals who do not successfully obtain leave to remain by the given deadline will be subject to sanctions on work, benefits and other services, and are likely to experience destitution, which may adversely impact on communities and increase demand for social services’ support.
  • Where EU nationals are recognised as having a long-term future in the UK through the EU Settlement Scheme, but do not have an automatic entitlement to income-based benefits, it is likely that social services' duties will be engaged to fund accommodation and financial support for those that are vulnerable or who have children.
  • Communicating the changes to EU residents and assisting the most vulnerable to secure their status will be essential given the risks that will arise if people fail to obtain leave to remain, but this will give rise to additional resource pressures on local government.
  • There is currently no fee exemption for people receiving social services' support (other than for children in care), so the cost of funding applications may fall to local government.  
The Exiting the European Union Select Committee and the Mayor of London have called for the applications to be free of charge. Our host local authority, Islington Council, is considering funding applications made by EU employees. 

It will be important for local authorities to document the impact of the UK's departure from the EU on all services, including any costs incurred communicating information, assisting residents to prepare to apply under the EU Settlement scheme and providing social services' support. Local authorities using the NRPF Connect database can consider using this to record details of EU nationals they are supporting. 

Further information
  • Factsheet​Helping European Union residents to protect their rights after Brexit (includes information about the EU Settlement Scheme)
  • Update on EU citizens' rights post-Brexit (10 January 2019)
  • How councils can help protect the future rights of EU residents ​(25 July 2018)
*For the purpose of this article 'EU national' includes citizens of Norway, Iceland, Lichtenstein and Switzerland.
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