On 20 December 2021 the Minister for Rough Sleeping and Housing wrote to all Local Authority Chief Executives  under the heading “Protect and Vaccinate – rough sleeping response to the new variant”.
The letter addresses the low vaccination update in the rough sleeping population, points out that vaccination is available irrespective of immigration status, sets out measures intended to increase uptake and, relevant to this note, addresses the issue of rough sleeping and infection transmission.
The key message on accommodation provision is that local authorities should “… (subject to individual assessments) make offers of safe and appropriate accommodation to people who are rough sleeping now”. This includes making such offers to those who have previously been offered but rejected or left accommodation. A local authority may have discharged duty under Part 7 of the Housing Act 1996 to such persons if the offer of accommodation was deemed “suitable”.
In relation to those without recourse to public funds this ministerial note differs from the predecessor initiative “Everyone In” in March 2020, in that it expressly addresses the statutory basis upon which the government considers that those without lawful status can be accommodated, subject to consideration of individual circumstances. It states that: It is critical that you include all non-UK nationals in your plans, and – as ever – ensure that you are exhausting all options within the law to support them. This should include doing a full and proper assessment of each individual’s circumstances and need and considering in full what discretionary powers you have to support and/or accommodate them. Although the assessment is for you to make on a case-by-case basis, in the government’s view the circumstances are such as to enable you to exercise public health and emergency powers to provide accommodation (see Section 2B National Health Service Act 2006 and associated statutory guidance published in accordance with Section 73B, and Section 138 Local Government Act 1972). Other powers, for example the General Power of Competence (Section 1 Localism Act), can also be used for this cohort although in some (but not all) cases use will be limited unless it is necessary to avoid breach of a person’s ECHR rights. In the government’s view the circumstances are such that the ECHR exception may well be engaged; however, again it is for local authorities to make an assessment on a case-by case basis. This does not mean that accommodation could be offered on a long-term basis or that this cohort could, for example, be placed into a supported housing. However, time-limited, emergency support as outlined in this letter would, in our view, be possible. [emphasis added]
The background to this statement of legal powers to accommodate lies in the case of R(Ncube) v Brighton and Hove City Council  EWHC 578 (Admin)  , in which it was held that powers under s.2B National Health Service Act 2006 and under s.138 Local Government Act 1973 were capable of permitting a local authority to accommodate a failed asylum seeker who was ineligible for homelessness assistance under Part 7 Housing Act 1996.
In that case, it was held to be relevant to the exercise of discretion under s.138 of the Local Government Act 1973 to consider “…other avenues of accommodation such that this emergency support is not required…” . In relation to s.2B of the 2006 Act, it was noted that this does not confer a duty in relation to an individual . In relation to the Everyone In programme and any successor initiative, the judgment specifically addresses whether using the public health powers in s.2B amounts to a circumvention of the eligibility restrictions on homelessness assistance contained in s.185 Housing Act 1996 in stating that, “…the above recognises that the provision of accommodation under the “Everyone In” scheme or a successor initiative may be permitted even to NRPF persons provided that this was not an attempt to circumvent Part VII of the Housing Act 1996”.
The emphasis therefore in the Ministerial Letter and in Ncube is upon case by case assessment to address whether in a particular applicant’s case there is an alternative means of accommodation so that emergency support is not required (which, in the case of a current or failed asylum seeker, may include accommodation from the Home Office under s.95 or s.4 Immigration and Asylum Act 1999).
The reference to use of the Localism Act 2011 general power of competence is also subject to detailed analysis in Ncube albeit on an arguably obiter basis, in light of the academic basis upon which the case was being determined, and the conclusions as to emergency and public health powers. In summary, it has been held in a number of previously decided cases not to be permitted to use the s.1 Localism Act power to circumvent the eligibility provisions of s.185 Housing Act 1996. In an accommodation need only case, the Judge considered that s.185 Housing Act 1996 and the prohibition, limitation or restriction there prevented s.1 Localism Act 2011 providing a power to accommodate without there being some other free-standing statutory context . As to whether there was a need to read s.1 in a human rights (article 3) compliant manner, on the facts of that case, there was not, because statutory responsibility for accommodating current and failed asylum seekers lay with the Home Office . The correctness of the ECHR compliant reading argument being capable ofprevailing in a case where there is no alternative statutory basis for support was not decided.
As is clear from the Ministerial letter and Schedule 3 to the Nationality Immigration and Asylum Act 2002 para.1(1) (ka) a local authority may not provide support or assistance under s.1 Localism Act 2011 to an “ineligible person”, the definition of which is contained at paragraphs 4-7 and includes, at para.7, a person who is (a) in the United Kingdom in breach of the immigration laws within the meaning of section 50A of the British Nationality Act 1981, and (b) is not an asylum-seeker. The prohibition upon such support is subject to the exception at para.3 where the provision of support is necessary to prevent a breach of a person’s human rights. That assessment will need to take account of a person’s individual circumstances, including alternative forms of support available to them, and the viability of a return to country of origin.
In summary, this successor initiative to Everyone In provides a clearer statutory basis for local authority support for persons from abroad during the current phase of the pandemic. This letter is not statutory guidance and does not alter existing statutory powers or duties. It does not cover the situation of those with eligible care and support needs requiring the provision of accommodation, who should be assessed in line with the Care Act 2014, and is therefore limited to those with a need only for accommodation. It emphasises the discretionary nature of the available forms of support under emergency and public health powers for those not lawfully present, and the need for individualised assessment of need, which, as held in Ncube, is capable of taking into account other forms of available support. In a case where Localism Act 2011 (or Care Act 2014) support is sought by an ineligible person, a human rights assessment is required to establish whether a local authority may provide this. Schedule 3 NIAA 2002 does not apply to the Local Government Act 1973 or National Health Service Act 2006 powers.
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