Availability of section 17 Children Act assistance enables the UK to meet its obligation to provide Zambrano carers with basic support

17 February 2015

The Court of Appeal has given judgment on four linked appeals, confirming that Zambrano status arises immediately and that Zambrano carers have no entitlement to mainstream benefits but must be provided with basic support.
The judgment of Sanneh & Ors v Secretary of State for Work and Pensions [2015] EWCA Civ 49 includes the appeals of Sanneh v SSWP and HC v SSWP, as summarised on in our January 2014 News Bulletin. Local authorities need to be aware of the Court's findings when assessing eligibility for section 17 Children Act 1989 support for families where there is a single parent from outside of the EU who has a British Citizen child.
On 8 November 2012, the habitual residence test requirement was amended to exclude Zambrano carers (non-EU national primary carers of EU citizen children) from being eligible for various welfare benefits and housing assistance in England (under the Housing Act 1996). The Court considered the lawfulness of these restrictions by assessing Zambrano carers’ entitlement to social assistance, and at what level this should be provided, as well as at what point Zambrano status arises.
The Court’s findings: when Zambrano status arises
Zambrano status arises as soon as the necessary conditions are satisfied, and is not conferred on a carer only when they become destitute or are required to leave the UK.
The Court’s findings: entitlement to social assistance
There is no EU treaty provision or legislative measure which restricts the freedom of a member state to decide on the level of benefits for Zambrano carers.
Zambrano carers who are in need and are not able to work are not entitled to the same level of social assistance as EU nationals who are residing lawfully in the EU. However, in order for the Zambrano right to be effective, the Court concluded at paragraph 26 that:
‘..member states must make social assistance available to Zambrano carers when it is essential to do so to enable them to support themselves in order to be the carer for the EU citizen children in their care within the EU’.
The Court refers to this as ‘the basic support test’. The amount of ‘basic support’ payable is a matter governed by national law and member states are not required to pay more than the Zambrano carer needs to support themselves, although it is open to them to do so.
The availability of support under section 17 Children Act 1989 is sufficient to meet the UK’s obligations to provide basic support to Zambrano carers, ensuring that Zambrano carers and their EU citizen children are able to remain in the EU. However, the Court did not go onto determine whether section 17 operates satisfactorily ‘on the ground’.
The Court found that it is not discriminatory or in breach of any public sector equality duties to treat Zambrano carers differently by providing a lower level of support, some reasons being that the carer and EU citizen child would not be left destitute, and they have the option of applying for leave to remain under the family migration settlement routes of the Immigration Rules. The 2012 regulations restricting benefit eligibility are therefore not unlawful.
Outcomes for the claimants
In the case of Sanneh v SSWP, a Gambian national who was the primary carer of a British Citizen child had made an unsuccessful claim for Income Support in November 2011. The Court held that Ms Sanneh has the right to reside for the purposes of claiming Income Support until 8 November 2012, when the benefit regulations were amended to exclude Zambrano carers.
In the case of HC v SSWP, an Algerian national, who was the primary carer of two British Citizen children and was provided with support by Oldham Council under section 17 Children Act following the breakdown of her relationship with the child’s father, was unsuccessful in arguing that the 2012 benefit regulations are discriminatory. The Court upheld a previous decision that Ms HC would not be forced to leave the UK if the benefits she requested were not provided.
The cases of Scott v LB Croydon and Ms Mereli and others v Birmingham City Council relate to applications for assistance under the Housing Act 1996 that were made after the housing regulations had been amended on 8 November 2012 to exclude Zambrano carers from assistance, with the former case dismissed having raised the same grounds as HC, and the latter cases being remitted back to the County Court to consider whether the appellants were ineligible for assistance by virtue of the 2012 regulations. However a ground of appeal relied on in Scott, relating to the ‘right to reside’ test for entitlement to social benefits was stayed pending the decision of the Supreme Court the appeals of Mirga and Samin v Westminster City Council [2012] EWCA Civ 1468.
Impact on local authorities
The Court of Appeal has effectively set out a positive obligation on local authorities to provide ‘basic support’ under section 17 Children Act 1989 to Zambrano carers to enable them to support themselves and care for the British Citizen child within the UK. Local authorities will already be providing accommodation and/or financial support to destitute families where the parent is a Zambrano carer and the child is in need as a result of the carer being unable to provide for their accommodation and/or essential living needs. Local authorities are already required to consider a family's right to reside in the UK under EU law in order to determine eligibility for section 17 Children Act support, regardless of the non-EU national parent's domestic immigration status,(R (U) v Newham LBC [2012] EWHC 610). 
However, now that the Court of Appeal has provided clarification that the right to reside under Zambrano is acquired as soon as the criteria are fulfilled (i.e. when the person becomes the primary carer of an EU citizen child), local authorities must recognise that such a person is lawfully present in the UK and is therefore not subject to the exclusions to Social Services support set out under Schedule 3 Nationality Immigration and Asylum Act 2002. There is no requirement for the Zambrano carer to have obtained documentation from the Home Office to confirm this status.
The Court has not confirmed whether section 17 Children Act support actually meets the needs of Zambrano carers. Local authorities need to ensure that they adopt a lawful and rational approach to determine what level of support is provided to meet the needs of families in light of recent case law

Local authorities supporting Zambrano carers are advised to make appropriate referrals to work programmes and for immigration advice to see whether there may be other options available, as set out in our Factsheet: Zambrano carers: local authority duties and access to public funds.
The availability of section 17 Children Act ‘safety net’ support has often been used by government departments to render policies that restrict access to benefits or other public services for migrants lawful, because it ensures that the needs of the most vulnerable children will be met. Despite this, local authorities receive no funding from central government to provide such assistance. The exclusion of Zambrano carers from mainstream benefits and subsequent burden on social services departments is an issue that we raised with the Department for Communities and Local Government (DCLG) in early 2014, and has been identified by the DCLG as a key area when examining the impact of government policy and legislative changes on NRPF service provision in their New Burdens Assessment. Local authorities are encouraged to join NRPF Connect to document their caseloads and add to the evidence base that will contribute to this work.