Guidance to the Local Authority - Print version

Local Authority EUSS Application Responsibilities and Guidance

The Home Office recommends that local authorities engage with relevant service leads, cabinet members, local charities and community groups or representatives to explore opportunities to work together and assist adults with care and support needs in applying to the EU Settlement Scheme.

Local Authorities are required to support applications and make applications to the EU Settlement Scheme on behalf of looked after children, children in care and care leavers. Detailed guidance is provided in the following sub-sections.

Full Local Authority guidance regarding the EU Settlement Scheme is available on the GOV.UK website. [https://www.gov.uk/government/publications/eu-settlement-scheme-introduction-for-local-authorities]

a. Assisting adults with care and support needs

Adults with care and support needs include adults in care settings or those in the community who require support with personal care, activities of daily living and/or access to the wider community as a result of physical or mental impairment or illness.

If anyone requires legal advice or support with EUSS applications, please email CoventryEUSS@coventry.gov.uk [mailto:CoventryEUSS@coventry.gov.uk]

i. Mental capacity

Where someone who lacks mental capacity has appointed an Attorney through a Lasting Power of Attorney, or has a Deputy appointed by the Court of Protection, their representative should make an application on their behalf.

If someone’s mental capacity fluctuates then their consent should be sought, when they are able to give it, for an appropriate third party to make an application on their behalf if they are unable to apply themselves.

In each case, the person acting on behalf of the individual will need to be satisfied they:

• Have appropriate authority or consent to do so; and
• Are acting in the best interests of the individual in accordance with the Mental Capacity Act 2005.

Those signing the declaration on behalf of someone without mental capacity should upload a letter in the evidence section of the application form to inform caseworkers of the individual’s circumstances.

2. Looked after children care leavers

i. Responsibilities

Health and social care authorities supporting looked after children and care leavers must identify affected children, including:

• Looked after children for whom the authority has parental responsibility (care order, interim care order or placement order) ​
• Looked after children who are accommodated​
• Care leavers​
• Any other children in receipt of local authority support, for example, children in need.

2. Record keeping

When making an application on behalf of a looked after child, or if you otherwise notify, signpost or support someone to make an application for a looked after child or care leaver, it is essential that key information is recorded. This information must be accessible in the event that you, the child or the Home Office need to check on the progress of the application, ensure the digital status can be accessed and further applications or changes for Settled Status can be made.

Detailed records and plans for monitoring the child’s status, including future actions with deadlines, to be carried out in order to convert Pre-Settled Status into Settled Status once the child or care leaver has accrued five years’ continuous residence should be documented in the child’s care plan or the care leaver’s pathway plan. Information should be stored centrally so that changes in personnel do not affect the ability to access it if needed. Applicants and relevant third parties (e.g. parents/ carers) should also be made aware of the need to store this information themselves, where appropriate. Data should be stored securely in line with your organisation’s GDPR policies. Ensure you record:

• The Unique Application Number (UAN) given when the application is made
• The email(s) and phone number(s) that were entered in the application form
• The address that was entered in the application form
• The answers that were given to the memorable questions at the end of the application form
• The nationality of the child or care leaver
• The status the child or care leaver was granted
• The date that the child or care leaver can apply to convert their Pre-Settled Status into Settled Status, and the date their Pre-Settled Status expires (required only for those grant Pre-Settled Status)

3. Children with a care order, interim care order or placement order

If the child is looked after under a care order or interim care order under s.31 or s.38 of the Children Act 1989, or a child with an adoption placement order under s.21 of the Adoption and Children Act 2002 and the local authority has parental responsibility for the child, you should ensure that the application is made. You can either make the application on behalf of the child, or, if deemed more appropriate due to age and maturity of the child, you can support the child to make their own application.

The local authority should make note and adhere to the record-keeping requirements outlined in this section.

4. Accommodated children

If the looked after child is accommodated under s.20 of the Children Act 1989 and the local authority does not have parental responsibility for the child the local authority should ensure that the child and those with parental responsibility for that child are aware of the need to make an application to the scheme, signpost them to the scheme, explain why it is important to apply and offer practical support where needed.

The local authority should ensure that it works closely with the person with parental responsibility to monitor the progress of any application made, providing practical support as appropriate.

A child does not require consent from an adult in order to apply. They can make their own application. It is important, therefore, that the local authority ensures all eligible looked after children are aware of their eligibility to apply and that decisions are made in the child’s best interests.

In cases where the child is being accommodated the local authority will need to consider carefully how best to safeguard and promote the welfare of that child in accordance with the local authority duties under s.22(3) of the Children Act 1989.

The local authority should make note and adhere to the record-keeping requirements outlined in this section.

In identifying all eligible children and ascertaining what your responsibilities are, you should also consider the Department of Education’s statutory guidance ‘Care of unaccompanied migrant children and child victims of modern slavery’. [https://www.gov.uk/government/publications/care-of-unaccompanied-and-trafficked-children]

5. Any other child in receipt of local authority support

If you identify other eligible children receiving support, for example, children in need receiving support under s.17 of the Children Act 1983, you can promote the scheme and signpost to relevant available support.

The local authority should make note and adhere to the record-keeping requirements outlined in this section.

6. Care leavers

As per legislation and guidance, local authorities have a responsibility to provide ongoing support to young people who qualify for leaving care support up to the age of 25.

For further guidance, please read ss.23A-24D of the Children Act 1989 [•%09https:/www.legislation.gov.uk/ukpga/1989/41/part/III/crossheading/advice-and-assistance-for-certain-children]. Please also read the Care Leavers (England) Regulations 2010. [•%09https:/www.legislation.gov.uk/uksi/2010/2571/contents/made]

Ensuring that care leavers secure status through the EU Settlement Scheme is relevant to these existing statutory responsibilities.

Acknowledging that there may be occasions when extra support is necessary, the local authority should identify care leavers who may be eligible to apply to the scheme and offer them support to ensure that they make an application.

In some cases, if deemed appropriate due to their age or maturity, the local authority may signpost them to make their own application or may need to offer practical support.

In the event of a request for further information or a refusal decision, you should follow this up with a care leaver in a timely fashion to ensure the best possible outcomes are achieved for the individual. Activities may include contacting the Home Office (UK Visas and Immigration) via the Settlement Resolution Centre on their behalf, and/or seeking independent legal advice for or with the individual.

You should consider whether you need to engage with an independent adviser. An immigration adviser can advise whether legal aid funding via the exceptional case funding scheme may be available to cover the cost of immigration advice. If you require legal/ immigration advice or support, please contact Coventry Law Centre [https://www.centralenglandlc.org.uk/Pages/Category/coventry-legal-teams] for free specialist guidance and assistance.

The local authority should make note and adhere to the record keeping requirements outlined in this section.

7. Youth Secure Settings (under 18)

Children and young people in youth secure settings (young offender institutions, secure training centres, secure children’s homes and secure schools (once opened)) who are EEA citizens or family members of EEA citizens, may be eligible to apply for the scheme.

Youth secure settings should identify a designated EU Settlement Scheme lead (e.g. Resettlement Manager, Social Worker or Caseworker) to coordinate application planning and provide oversight. The designated lead will need to ensure that children and young people who may, or may on their release, be eligible to apply are identified, their legal carers are alerted, and application plans are formulated in collaboration with relevant authorities.

Where parental responsibility lies with the child or young person’s parents, they should be completing applications on their behalf. However, the youth secure setting and local authority still have a responsibility to raise awareness of the application process to family members so they can make informed decisions; the level of involvement required will need to be assessed on a case by case basis. All looked after children in the youth justice system will require additional support. Where parental responsibility lies with the local authority, the local authority is responsible for ensuring that applications for status under the EU Settlement Scheme are submitted. Alternatively, the local authority can support the child or young person to make their own application. If you are supporting a child or young person involved in the criminal justice system, you should consider seeking independent immigration legal advice. These cases can be complex, so may require expert assistance to ensure the best possible outcomes.

For further information relating to changes to care status because of criminal justice decisions, please refer to Annex 8 of the Children Act 1989 guidance and regulations, Volume 2: care planning, placement and case review [https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/441643/Children_Act_Guidance_2015.pdf].

If you require legal/ immigration advice or support, please contact Coventry Law Centre [https://www.centralenglandlc.org.uk/Pages/Category/coventry-legal-teams] for free specialist guidance and assistance.

Youth secure settings should also work with Youth Offending Teams (in England and Wales) and the equivalent services in Scotland and Northern Ireland, especially in preparation for that child or young person’s release to ensure there is a smooth handover of relevant details. Application progress or planning should be discussed during sentence planning or detention training order reviews that Youth Offending Teams and Children’s Services (or their equivalents in Scotland and Northern Ireland) will be attending. This will enable relevant information to be communicated to local authorities upon release. This process should form part of that child or young person’s constructive resettlement agenda.

If it is necessary for a youth secure setting to complete an application on behalf of the child or young person, the designated lead can complete an online application or support the individual to complete their own paper-based application. Although the child or young person’s parents should be involved in the application process, the child or young person can make their own independent application if they wish without parental consent. The child or young person’s application details should be recorded centrally as part of their review so that information remains easily accessible during establishment transfers, transitions to the adult estate and upon release. The relevant authority should make note and adhere to the record keeping requirements outlined in this section.

c. Appeals, rights and administrative review

Some decisions under the EU Settlement Scheme can be challenged by an internal administrative review and/or an appeal. The decision letter will tell you whether there is the right to apply for an administrative review or to appeal and will provide links to further information on the process and the fees payable.

You can apply for an administrative review on the GOV.UK website. [https://www.gov.uk/guidance/eu-settlement-scheme-apply-for-an-administrative-review]

More details on the process and immigration asylum tribunals can be found on the GOV.UK website. [https://www.gov.uk/immigration-asylum-tribunal]

If you require legal/ immigration advice or support, please email CoventryEUSS@coventry.gov.uk [mailto:CoventryEUSS@coventry.gov.uk]. Coventry Law Centre has experienced and specialist immigration lawyers who may be able to support or advise with appeals and administrative reviews.

Eligibility of EEA nationals for Local Authority Support from 1 January 2021

The Ministry for Housing, Communities and Local Government (MHCLG) has created some guidance for local authorities on how changes to legislation, which come into force from 1 January 2021, will impact local authority responsibilities for assessing the eligibility of EU, EEA and Swiss citizens, and their family members, wishing to access social housing and homelessness assistance. You can read the full guidance on the MHCLG website. [https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/939394/EU_Transition_-_Notification_of_change_letter_to_LAs_.pdf]

Changes outlined in MHCLG’s guidance to local authorities should also be considered alongside the Allocation Guidance [https://www.gov.uk/government/collections/social-housing-allocations-guidance] and the Homelessness Code of Guidance for local authorities [https://www.gov.uk/guidance/homelessness-code-of-guidance-for-local-authorities] which provide relevant guidance relating to an applicant’s eligibility for an allocation of social housing and for homelessness services.

Changes to legislation are not an extension of local authorities’ responsibilities with regards to the allocation of social housing or provision of homelessness assistance. However, local authorities from 1 January 2021 may need to conduct extra checks to be able to determine an applicant’s eligibility.

The following section compiles and streamlines key information and guidance so that housing and homelessness staff within Coventry City Council are aware of new rules and regulations in relation to determining the eligibility of and ability to support EEA nationals from 1 January 2021.

a. Determining the eligibility of EEA national for support after 1 January 2021

Eligibility for accommodation support is determined through a child in need assessment or social care needs assessment. Emergency support may be provided whilst the assessment is carried out.

Assistance may only be provided to adults when they have care and support needs that arise from, or are related to, a physical or mental impairment or illness, rather than solely due to the person’s situation of destitution.

i. When will a human rights assessment be required?

An EEA national who is in breach of immigration laws i.e. is unlawfully present in the UK.

 Schedule 3 of the Nationality, Immigration and Asylum Act 2002 applies to an EEA national who is ‘in breach of immigration laws. This exclusion places a bar on the provision of social services’ support when the person or family can return to their country of origin to avoid a human rights breach that may arise from being destitute in the UK.

When the Schedule 3 exclusion applies, the provision of support, under section 17 of the Children Act 1989 or the Care Act 2014, is subject to a human rights assessment, which must identify whether there are any legal or practical barriers preventing the person from returning to their country of origin. When there are no barriers preventing return, the local authority may refuse or withdraw support on the basis that destitution can be avoided by return to country of origin.

The Schedule 3 exclusion will only apply to an EEA national who is ‘in breach of immigration laws. For example, an EEA national may be without leave in the UK if they fail to apply under the EU Settlement Scheme by the deadline of 30 June 2021, or if they enter the UK after 1 January 2021 with six months leave to enter as a visitor and become an overstayer following the expiry of their leave.

In practice, local authorities are unlikely to encounter an EEA national who is without leave or lawful status in the UK before 1 July 2021. Although EEA nationals who have not obtained settled or pre-settled status could be ‘in breach of immigration laws’ if they are not protected by the Grace Period Regulations, it is likely to be difficult to implement the exclusion in such cases, given that the person will still be entitled to apply for settled or pre-settled status before 30 June 2021, and instead should be assisted to access advice about that.

Guidance for local housing authorities from the Ministry of Housing Communities and Local Government: Homelessness assistance, restricted cases

The Consequential SI also amends Part VII of the Housing Act 1996, section 185 (4) and (5).

At present, EEA citizens who reside in the UK on the basis of domestic leave, (rather than on the basis of an EU right to reside) who are made eligible for homelessness assistance by our Eligibility Regulations , are permitted to rely on a dependant within their household who is not eligible for housing assistance (typically children) to establish their case for homelessness assistance. This is otherwise known as a restricted case. Other third country nationals who have domestic leave and who have been made eligible by our eligibility rules may not rely on such a dependant in order to make their case for assistance.

The amendment will bring EEA citizens in line with third country nationals, at the point the new immigration rules are introduced in January 2021. However, it will preserve the accrued rights of any lawful EEA citizen resident prior to the end of the transition period (31 December 2020) so they may continue to rely on a dependant who is ineligible.

After 31 December 2020, local authorities will need to be aware of this when assessing eligibility for homelessness assistance.

1. Changes to Schedule 3 to the Nationality, Immigration and Asylum Act 2002

The Regulations include changes to Schedule 3 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) to bring the position of EEA citizens into line with non-EEA citizens who do not benefit from current free movement arrangements. The effect is that EEA citizens will no longer be explicitly listed as ineligible for assistance under the wider social welfare legislation referenced in the 2002 Act, which includes local authorities’ General Power of Competence under the Localism Act 2011, as well as powers under the Care Act 2014, Children Act 1989 and others.

These changes will be of interest to local housing authorities (LHA) wanting to support EEA citizens experiencing homelessness/rough sleeping in circumstances where the applicant is not eligible for homelessness assistance. For example, this may be because they have pre-settled status but are not eligible for assistance under the eligibility rules (because they are a jobseeker/’Zambrano’ carer) or because they do not have immigration leave and are not seeking asylum (asylum claims made by EU nationals will continue to be treated as inadmissible and ineligible to asylum support unless there are exceptional circumstances).

From 11pm on 31 December 2020, LAs may choose to rely on the changes being made to the NIAA to provide assistance to EEA citizens under the wider social welfare legislation referenced. It will be for the relevant local authority to satisfy itself of the lawfulness of any proposed measures and to consider how such measures may be circumscribed by existing legislation noting, for example, the restrictions set out in s.2 of the Localism Act 2011. LHAs may conclude they have the scope to provide very limited assistance, shelter and support, to those EEA citizens not eligible for homelessness assistance in circumstances where they deem such support is necessary.