The statutory bar and local authority provision
21.25The list of excluded services is set out in paragraph 1 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, the provisions relating to England being as follows:
1(1)A person to whom this paragraph applies shall not be eligible for support or assistance under–
(a)section 21 or 29 of the National Assistance Act 1948 (local authority: accommodation and welfare),
(b)section 45 of the Health Services and Public Health Act 1968 (local authority: welfare of elderly),
(c)section 12 or 13A of the Social Work (Scotland) Act 1968 (social welfare services),
(d)Article 7 or 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 (SI No 1265 (NI 14)) (prevention of illness, social welfare, etc),
(e)… section 192 of, and Schedule 15 to, the National Health Service (Wales) Act 2006 (social services),
(f)section 29(1)(b) of the Housing (Scotland) Act 1987 (interim duty to accommodate in case of apparent priority need where review of a local authority decision has been requested),
(g)section 17, 23C, 23CA, 24A or 24B of the Children Act 1989 (welfare and other powers which can be exercised in relation to adults),
(h)Article 18, 35 or 36 of the Children (Northern Ireland) Order 1995 (SI No 755 (NI 2)) (welfare and other powers which can be exercised in relation to adults),
(i)sections 22, 29 and 30 of the Children (Scotland) Act 1995 (provisions analogous to those mentioned in paragraph (g)),
(j)section 188(3) or 204(4) of the Housing Act 1996 (accommodation pending review or appeal),
(k)section 2 of the Local Government Act 2000 (promotion of well-being),
(ka)section 1 of the Localism Act 2011 (local authority’s general power of competence),
(l)a provision of the Immigration and Asylum Act 1999,
(m)a provision of this Act, or Part 1 of the Care Act 2014 (care and support provided by local authority).
(2)A power or duty under a provision referred to in sub-paragraph (1) may not be exercised or performed in respect of a person to whom this paragraph applies (whether or not the person has previously been in receipt of support or assistance under the provision).
(3)An approval or directions given under or in relation to a provision referred to in sub-paragraph (1) shall be taken to be subject to sub-paragraph (2).
The classes of persons subject to the exclusion are:
•persons/dependants with refugee status abroad (paragraph 4 of Schedule 3);
•EEA nationals/dependants (paragraph 5);
•failed asylum-seekers (lawfully present) who have failed to co-operate with removal directions (paragraph 6);
•persons in the UK in breach of the immigration laws within the meaning of section 50A of the British Nationality Act 1981, unless they are asylum-seekers (defined for these purposes at paragraph 17 of Schedule 3) (paragraph 7);
•failed asylum-seekers with dependent children who have been certified by the Secretary of State as failing without reasonable excuse to take reasonable steps to leave the UK (paragraph 7A).
21.26Even if PSICs satisfy the eligibility criteria for accommodation and support and/or even if they surmount the hurdle at section 21 of the Care Act 2014 they must also not fall foul of Schedule 3 to the Nationality, Asylum and Immigration Act 2002, which prohibits local authorities from providing a range of services to some classes of PSIC, including but by no means limited to services under the Care Act 2014, except insofar as may be necessary to avoid a breach of a person’s rights under the ECHR or EU law.
21.27The exclusionary effect of Schedule 3 does not extend:
•to children, for whom local authorities may always provide services, irrespective of their immigration status;
•to the extent permitted by delegated legislation: the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002
1SI No 3078.permit and sometimes require local authorities to provide temporary accommodation pending the making of travel arrangements (for the PSIC to leave the UK) in certain circumstances;
•to the provision of any service insofar as it may be necessary to avoid a breach of EU or ECHR rights (paragraph 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002):
3. Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of–
(a)a person’s Convention rights, or
(b)a person’s rights under the EU Treaties.
21.28The approach of the courts to paragraph 3 of Schedule 3 has been to treat it as being necessary to provide basic support in a case where, otherwise:
•the applicant would be pushed away from the UK as a result of not having their basic needs met (including accommodation and essential needs);
•providing that would be incompatible with their rights under the ECHR;
•which will be the case, where the applicant has an outstanding application for LTR on refugee or ECHR grounds that is not ‘
manifestly hopeless or abusive’.
2R (Clue) v Birmingham CC [2010] EWCA Civ 460, (2010) 13 CCLR 276.