Scottish Social Security Consortium

Minutes of meeting 6 May 2004

Present:
Abigail Bremner Citizens Advice Scotland
Andy Locke Shelter Scotland
Michael Collins Scottish Refugee Council
John Dickie Child Poverty Action Group in Scotland
Susan Drew Highland Advice and Information Network
Judith Paterson Child Poverty Action Group in Scotland
Chris White Scottish Association for Mental Health
Jo Whitfield The Action Group
Maureen Closs One Parent Families Scotland

Jim Laird COSLA Refugee and Asylum Seekers' Consortium
Jackie McPhail COSLA Refugee and Asylum Seekers' Consortium

Observing
Sue Fisher Save the Children
Carolyn Mance City of Edinburgh Council Asylum Seekers' Response Unit
Joan Weir Scotland Zimbabwe

Apologies:
Pat Gallagher Age Concern Scotland
Malcolm Laughton Alzheimer's Scotland
Craig McKenzie One Plus
Stephanie Millar Update
Jim Pearson Alzheimer's Scotland
Derek Sinclair Contact a family

Introductions

Judith Paterson asked attendees to introduce themselves and explained the purpose and remit of the group to those who were new.

Support for Asylum Seekers

Jim Laird, who works for the CoSLA Refugee and Asylum Seekers' Consortium spoke on the changing regime of Government support to asylum seekers.

Before April 2000

• Legal framework was the Asylum and Immigration Act 1996
• Those who applied as soon as they entered the UK ('port of entry applicants') were entitled to social security benefits
• It was the intention of the legislation that those who applied once they were in the country would not be able to claim social security benefits. However, in a case brought by destitute asylum seekers against a number of London Boroughs, the House of Lords held that those who applied in country could not get benefits, but that local authorities had a duty to support them under the National Assistance Act 1948. Note however, that this is English legislation. In Scotland support was provided under the Social Work (Scotland) Act 1968.
• In Scotland, the Scottish Refugee Council got agreement from the local authorities in Scotland to support in-country asylum seekers at 90% of social security benefits levels. Glasgow City Council supported at 100%.

After April 2000

• The legal framework is the Immigration and Asylum Act 1999
• After April 2000, all new asylum seekers would be supported through the National Asylum Support Service (NASS) rather than having access to cash through the benefits system.
• Those who needed support only could live anywhere, as long as they provided an address to which vouchers could be sent.
• Those who needed accommodation as well as support were required to get that accommodation through NASS and could be dispersed anywhere in the country (no choice).
• Unaccompanied asylum seeking children - children seeking asylum remain the responsibility of the local authority which first made contact with them (and the vast majority are picked up at Heathrow) and cannot be dispersed. Procedures have been put in place to enable 'safe case transfer' to another local authority where appropriate. However, local authorities are very reluctant to do this as the support arrangements put in place for councils accepting transfers (£600 for those under 16 who are in care and £350 for 16-18-year-olds) are not considered to be adequate.
  
• Unaccompanied children can also not be returned to their country of origin. However, the Government is working on a 'safe return' programme, which has the support of a number of those who work with children because it will enable children to be reunited with their parents.

After Jan 2003

• The legal framework is the Nationality, Immigration and Asylum Act 2002 (NIAA).
  
• [Note the background of a National Audit Office investigation which found NASS to be hugely overspent not providing an effective service.]
  Those without children - single applicants and childless couples must apply for asylum as soon as it is 'reasonably practical' to do so, or they cannot access NASS support. Legal action in relation to this provision continues. In England, there are reports of increased rough sleeping as a result. This effect has not been documented yet in Glasgow, but there are reports of asylum seekers sleeping on buses.
  
• European Union (EU) and European Economic Area restrictions - S54 of the NIAA 2002 limits support to whose who have already been granted asylum in another EU country. The same is true of those with asylum applications in the EEA. In these circumstances, the only interventions open to local authorities are to offer short-term accommodation (5/10 days) and a ticket back to the European country they came from. If this is refused, yet support is required for children, all local authorities can do is take the children into care. There are reports of local authorities in England using this provision as a threat to asylum seeking families.
  
• Arrival in the UK - S57 of the NIAA 2002 also allows support to be refused where an asylum seeker does not give a clear account of how they arrived in the UK.

Further legislation

• The Asylum and Immigration (treatment of claimants) bill proposes the following:
  
• Restrictions on access to the courts - the Government has now backed down on proposals to restrict asylum seekers' access to the courts to challenge decisions.
  
• Failed asylum seeking families - the current situation is that local authorities can house families whose application for asylum has been unsuccessful until all children are 18 years old. However, new legislation will remove this power, allowing local authorities to offer a ticket home, or to take any children into care, only.

Additional support available

• Where there is 'no safe route of return' (ie. where conflict prevents the asylum seeker travelling back to their own country - or in relation to countries that do not accept back those who have claimed asylum elsewhere, like China) those covered by the Asylum and Immigration Act 1999 can access further support.
  
• S4 of the above act applies where there is no safe route of return, or where there is an outstanding judicial review. This is known as 'hard cases support'. In these situations, NASS can offer continued support - however, no accommodation exists north of Manchester and there is no advertising or notification to those affected of the additional support.
  
• The evidence from Glasgow is that unsuccessful asylum seekers who have had support withdrawn generally end up living with other asylum seekers. This can jeopardise the applications of those who have not yet had their claim rejected.

Refugees

• Those with exceptional leave to remain, humanitarian leave to remain, discretionary leave to remain and indefinite leave to remain have full rights to claim social security benefits.

Community care provisions for unsuccessful asylum seekers

• Local authorities have responsibilities to carry out a community care assessment under normal, non-immigration legislation in any situation where there may be a need.
  
• The House of Lords has held that where an asylum seeker has community care needs, then it is the local authority which has responsibility to support them, not NASS.
  
• In Westminster Council vs NASS the courts held that local authorities have a duty to any asylum seeker with community care needs to provide accommodation, support and support services. However, this is based on English legislation (National Assistance Act 1948), and the statutory framework is not the same in Scotland. Local authorities argue that they would only be providing support services to British citizens, therefore should not be responsible for providing accommodation and support as well for asylum seekers.
  
• Given this case law, there is a risk that local authorities would not inform NASS of the results of a needs assessment, in case responsibility for the care of the asylum seeker passed to them.
  
• Glasgow City Council argues that, under S12A of the Social Work (Scotland) Act 1968, they are responsible for assessing asylum seekers' needs through a community care assessment but not for providing support to meet those needs.
  
• The major problem is that NASS guidance does not refer to the separate statutory framework in Scotland, so it is impossible to work out a view of where responsibilities lie.
  
• One issue for advice workers to push is, where local authorities have assessed an asylum seeker and found clear community care needs, why are they not providing support?

Questions

Mental Health
Members noted that there was a consultation out at the moment on the issue of special needs and asylum seekers. However, it did not touch at all on the issue of mental health. The Mental Health (Care and treatment) (Scotland) Act 2003 introduced a 'community treatment order' which enabled free care and treatment by law on the basis of a decision by a tribunal. There is nothing in the legislation to stop an asylum seeker becoming the subject of a community treatment order.

Children
A judgement involving Hillingdon Council held that local authorities can support children up to the age of 25. The Children (Scotland) Act is very specific about only creating duties to children up to the age of 21, so is incompatible with this decision. Several members had examples of situations where children had not been properly looked after by social work, including one case where social workers in Glasgow had refused to check on a child who was alone after the mother had tried to set fire to the house and had been taken to hospital.

Group members noted that although Glasgow social work would support children (although not in cash) but were very reluctant to support adults. Although Glasgow had the Glasgow Asylum Support Project, this was more about managing contracts than direct social work intervention. Actual social workers were divided into area teams so it was difficult to ensure best practice across all.

It was noted that, in Edinburgh (which did have a care unit devoted specifically to asylum seekers), of 40 unsuccessful asylum seekers left without support, 12 were now being supported by social work as a result of community care assessments.

Members also noted that S54 of the Nationality, Immigration and Asylum Act 2002 (which withdraws support for asylum seeking families in certain circumstances) contravenes S22 of the Children (Scotland) Act 1985 as well as a right to a family life under the European Convention on Human Rights.

Advice agencies
It was noted that advice agencies were limited in the immigration advice they could provide as a result of the Office of the Immigration Services Commissioner, which had an accreditation scheme at various levels. Agencies had to be accredited before they could provide advice. However, this did not stop advice agencies giving advice in any other area to asylum seekers.

EU accession countries
Jim Laird noted that the problems created by the accession of a number of Eastern European countries had been raised with NASS over a year ago (ie. that, on accession of their country of nationality, they would have no access to NASS support and no access to the benefits system). However, indefinite leave to remain had not been granted to all those who should have it. NASS wrote to asylum seekers from accession countries in April to say that their only options were to go home, to support themselves or to join the workers' registration scheme (which would not provide access to Income Support and Jobseeker's Allowance unless claimants had been working for 12 month, although access to in-work benefits was possible).

NASS sent a letter on Thursday 29th April (ie two days before accession on 1st May) informing those who were affected that they could request a review of their case on human rights grounds. Instructions to accommodation providers not to evict were only sent on Friday 30th April. A number of providers had already evicted by this stage. On Monday 3rd May, the High Court held that those affected had the right to challenge the decision on human rights grounds.

The law in relation to asylum seekers
It was noted that the Department of Health produced guidance about responsibilities towards asylum seekers for local authorities and health authorities. However, the statutory framework this was based on did not apply in Scotland, and no additional information was provided. The Scottish Executive looked on asylum status as a reserved matter and refused to offer their interpretation of the situation either.

It was agreed that the SSSC would write to the Scottish Executive to state the need for clear guidance on asylum issues to be available to advisers for general advice provision. It was suggested that the relevant Scottish Executive departments were Development and Equalities. It was also noted that Angus Skinner, Chief Inspector of Social Work, had an interest.

ACTION: Michael Collins agreed to write a skeleton letter which could then be circulated to the rest of the group to send from their individual organisations. It was agreed that the consortium should also write collectively on the issue.

The Scottish Refugee Council noted the urgent need to bring test cases to clarify the law in Scotland.

ACTION: Abi Bremner agreed to speak to colleagues at Citizens Advice Scotland about access to the Legal Services Trust. This provided help with expenses and costs against parties in cases where solicitors had agreed to carry out legal work for free.

Minutes of the previous meeting

Corrections - it was noted that, from April 2004, certain children leaving care cannot claim Housing Benefit, as suggested in the minutes, but they can claim Income Support/Jobseeker's Allowance.

There were the following matters arising:

Direct payments - Chris White noted that there was still no written guidance from the DWP about the operation of the exceptions service (for those who would not be able to use a Post Office or bank account to access payments); however, giros were due to be phased out in October this year.
Acting for a third party - It had been noted at the previous meeting that the DWP had drawn up a document detailing procedures for establishing proof that someone was acting for a third party. This document was not to be made public however. Chris White reported that the Standards Committee would be discussing whether it should be made public at its next meeting.
Faxed appeals - Chris had circulated information to group members clarifying that it was possible to submit appeals by fax and that guidance issued to the contrary was incorrect. Glasgow Disability Benefits Centre had been requested to write to all stakeholders to inform them of this. Jo Whitfield noted that she had had problems with appeals submitted by fax on two recent occasions. Chris agreed to ask the Standards Committee to issue a note clarifying the situation which could be used to persuade reluctant DWP staff.

Information exchange

Changes to benefit provision - Susan Drew agreed to circulate a briefing on upcoming social security changes that she had prepared for the Highland Advice and Information Network.
Vocational training - The DWP had issued a consultation on 'Developing a framework for vocational rehabilitation' which would look at the training provision necessary to support some people to come off Incapacity Benefit and move into work. SAMH was concerned because some major players seemed to be against this provision. The Treasury allegedly did not see the need for training in these circumstances, and Scottish Enterprise had questioned the appropriateness of training for those with significant barriers to work.
Tax credits - John Dickie explained that CPAG had got funding for a project to provide second tier support on tax credits issues. They would be providing advice and training to advisers, as well as trying to identify the support needs of those working with tax credits beyond the usual network of advice workers - eg. those who were coming across tax credit cases as part of another job. The project would be evaluated, so the first step was to establish a base line of the level of awareness/understanding of tax credit issues at the moment.
Free school meals campaign - This had been relaunched with support from a cross-section of MSPs, voluntary organisations and celebrities. A bill had been lodged by the Scottish Socialist Party which gives local authorities 'powers' to extend free school meal provision. It is hoped that this will act as a counter to those who shied away from universal provision.
Prescription Charges - Colin Fox MSP has issued a consultation on the abolition of prescription charges which can be accessed at http://www.scottishsocialistparty.org/pdfs/scrapconsult.pdf. It was agreed that Abi Bremner would circulate a response to this.
Scottish Water - Citizens Advice Scotland had recently met with Scottish Water to discuss the affordability of water charges. Scottish Water supported a benefit to cover water charges for those on low incomes. They had suggested that an extension on Housing Benefit could allow access to those in Scotland and those in England and Wales, thus maintaining the principle of parity of provision.
Direct Payments (for community care) - One Parent Families Scotland noted that children have been able to access direct payments for community care since last year. However, Fife Council have refused to implement it due to budget cuts. Members noted that an organisation called Direct Payments Scotland, headed up by Richard Brewster, had been set up to raise the profile of direct payments and may be able to help.
EU accession states - Richard noted that updates on asylum issues could be accessed at www.asylumsupport.org.uk.
CPAG - Judith reported that the results of a CPAG-sponsored 'habitual residence test' test case would be reported in Welfare Rights Bulletin.

Topics for future meetings

Members thought that it was still worth looking again at tax credits - a focus of renewals, challenges and overpayments was suggested.

Susan Drew highlighted after the meeting the number of initiatives relating to getting people off benefits and into work (lone parents, those with disabilities), including pilots which require people to attend work-focussed interviews. This may be another topic for investigation by the group.

AOB

There was no additional business.

Date of next meeting

The next meeting would take place on Tuesday 28th September from 1pm-3/3.30pm at the CPAG offices in Glasgow

The following meeting would be on Monday 22nd November at CAS offices in Edinburgh

Back to the Scottish Social Security Consortium main page

For more information contact:
Judith Paterson
Child Poverty Action Group in Scotland,
Unit 9, Ladywell
94 Duke Street,
Glasgow G4 0UW
0141 552 3303
email jpaterson@cpagscotland.org.uk

Abigail Bremner
Citizens Advice Scotland
Spectrum House
2 Powderhall Road
Edinburgh EH7 4GB
0131 550 1000
email bremnera@cas.org.uk