ASSIST Sheffield

Challenging asylum destitution

Working in partnership for positive outcomes: a case study from Irwin Mitchell Solicitors

We were approached by ASSIST Sheffield in November 2015 in respect of Mr X, whose present immigration status is a refused asylum seeker, having entered the United Kingdom in 2001.

BACKGROUND

Mr X lived street homeless after claiming asylum in 2001 and travelled across the country receiving support from various charities; in Sheffield, Mr X was supported by ASSIST Sheffield. During this time, Mr X had contact with a number of health professionals and was diagnosed with a neurodevelopmental disorder. This was helpfully confirmed by way of a letter from a treating clinician which also referred to Mr X’s vulnerability and impaired ability to look after himself safely as a result of his diagnosis.

Mr X’s behaviours, resulting from his diagnosis, impaired his ability to gain support from relevant charities and affected his interaction with other street homeless people, which worsened his living conditions and resulted in him being at risk of harm and unable to develop support networks. In addition, Mr X’s diagnosis affected his ability to care for his personal needs, resulting in a number of physical ailments.

ASSIST Sheffield and the Northern Refugee Centre made National Assistance enquiries in February 2015 in respect of Mr X. While Sheffield City Council often responds positively to a referral, in this case the enquiry was sent around from one office to another. ASSIST kept up frequent contact and tried to secure an assessment of Mr X’s needs. However, no needs assessment of Mr X was undertaken. After several months without Mr X having been assessed, ASSIST Sheffield complained to Sheffield City Council (‘SCC’) and Sheffield Health & Social Care NHS Foundation Trust (‘SHSC’) who then agreed to carry out an assessment in October 2015. SCC delayed in providing a decision despite Mr X’s deteriorating situation and ASSIST Sheffield having followed up with an urgent human rights assessment in November 2015.

THE LAW

Section 21(1) of the Care Act 2014 provides that a local authority may not meet the needs for care and support of an adult subject to immigration controls pursuant to section 115 of the Immigration and Asylum Act 1999, and whose needs for care and support have arisen solely, a) because the adult is destitute, or b) because of the physical effects, or anticipated physical effects, of being destitute. Therefore, those with the status of a refused asylum seeker, and who are destitute and/or suffering the physical effects of destitution, are not generally eligible for support from local authorities.

The exception to this is where a person meets the ‘destitute plus’ test, which applies to those whose care and support arises as a result of their age, illness, disability or other circumstances, and the need for care is to a material extent made more acute by some circumstances other than a mere lack of accommodation and funds. Put another way, the question is whether a person needs care for any reason other than destitution.

NEXT STEPS

We prepared a letter to SCC arguing that Mr X satisfied the ‘destitute plus’ test as his diagnosis severely aggravated his destitute and deteriorating circumstances. Furthermore, we argued that the care he requires is such that he cannot be expected to undertake it himself, and it has been accelerated by his existing neurodevelopmental disorder. We noted that these factors led to Mr X being unable to care for his own needs, which resulted in physical ailments, difficulty in gaining support from organisations and other homeless people and put him at serious risk of harm. We also argued that providing Mr X with the care and support he requires was necessary to avoid a breach of Article 3 of the European Convention on Human Rights (protection from ‘inhuman or degrading treatment’), particularly due to Mr X being at risk of abuse from others.

Given Mr X’s deteriorating circumstances, the risk of him suffering harm and the fact that he was due to be removed from the location in which he was sleeping, we asked SCC to comply with its duty under the Care Act 2014 to provide Mr X with the care he requires and requested interim measures to address the urgency of the situation.

In response to our letter, SCC agreed to move Mr X into accommodation as a licensee (funded by SCC) to enable it to complete its needs assessments of Mr X. We understand that these assessments are on-going.

CONCLUSION

The key point arising from this case is that Mr X’s care needs flowed from his neurodevelopmental diagnosis rather than purely as a result of his destitute circumstances. There was clear evidence to support this in terms of a detailed letter from Mr X’s treating clinician. Accordingly, Mr X satisfied the ‘destitute plus’ test.

We are pleased that a carefully drafted letter prompted the local authority into action in respect of a needs assessment and that interim measures were put in place by the council to provide Mr X with accommodation. Of particular note is the significant delay between ASSIST Sheffield and Northern Refugee Centre requesting an assessment of Mr X in February 2015 and SCC taking steps to accommodate and assess Mr X in February 2016. Usually assessments should be completed within 28 days and sooner if urgent care or accommodation provision is necessary. Legal steps can be taken to protect an individual’s rights.

We are grateful to the staff and volunteers of ASSIST Sheffield for helping us in this matter in terms of facilitating meetings, arranging translators and providing documentation.

If you wish to contact us regarding any similar cases to that of Mr X, please find our details below:

Yogi Amin yogi.amin [at] irwinmitchell.com
Charlotte Wilson charlotte.wilson [at] irwinmitchell.com
Scott Storey scott.storey [at] irwinmitchell.com

Telephone 0370 1500 100

In addition, the public law team at Irwin Mitchell LLP specialises in a number of other areas in health and social welfare law, including access to treatment, placements in residential care, NHS assessments and many other social and health issues.