High Court grants permission to challenge ‘discriminatory’ unregulated home ban

The High Court has granted permission for a legal challenge to proceed against legislation introduced earlier this year which would ban the use of unregulated accommodation for children in care up to the age of 15.

Children’s rights charity, Article 39, bringing the legal challenge, argued that the change to the law discriminates against children in care aged 16 and 17 who similarly need care, protection and guidance.

Education Secretary Gavin Williamson announced in February that the Government was to ban the placing of children under the age of 16 in unregulated accommodation, with the ban coming into force in just three weeks’ time on 9 September.

Government data shows that there are roughly 100 children aged 15 and younger in this type of accommodation, compared to around 6,000 children aged 16 and 17 – with a third of all 16- and 17-year-olds in care currently living in unregulated accommodation.

Nearly one in three (29%) children in care who live in unregulated accommodation where they do not receive care are the subject of a care order. This means their local authority has parental responsibility for them and an overarching duty to safeguard and promote their welfare. Around 4 in 10 children living in unregulated accommodation were put there by local councils within less than a week of entering care.

Carolyne Willow, Director at Article 39 said there were “very serious harms” suffered by 16- and 17-year-old children in care.

“Families up and down the country have this past week been holding their teenagers close as they received their A Level and GCSE results and made big decisions for the next part of their lives. Yet in this new legislation we have the Education Secretary saying it is perfectly acceptable for children in the care of the state who are still in compulsory education to be living in places where they receive no day-to-day care from adults. That means children sorting out their own school uniforms, making and going to health appointments on their own, and not having family holidays or having someone in a parental role who’s going to know when they’re upset or need cheering up, and can just be there for them.”

“We have submitted a huge amount of evidence to the High Court showing the very serious harms suffered by 16- and 17-year-olds in care put into substandard accommodation and exposed to abuse and exploitation. This includes data we obtained from the Department for Education through a freedom of information request showing that 14 children in care who were living in semi-independent accommodation died between April 2018 and September 2020. The vast majority, if not all, of these children were aged 16 and 17.

“It’s no good the Government saying it plans to introduce standards for these places when Ministers have decided to change the law to make 16 the age when children in care don’t have to be actually cared for.”

The Government claims that independent and semi-independent provision can be the right option for some older children, and says it is intended to facilitate supported living for older children developing their independence before they leave the care system.

“We know that for some older young people, independent or semi-independent accommodation can be right in helping them transition to adult life,” Williamson said, announcing the changes in February this year, adding: “but these settings need to be consistently high quality. We cannot be complacent about the standards we expect to be met for children in our care.”

The High Court agreed, however, that the grounds for a judicial review case were arguable, namely that the regulations irrationally discriminate between children aged 15 and under and those aged 16 and 17; that the Regulations fail to have regard to specified equality needs and that although the government did carry out a consultation, this was unfair as its focus was the provision of care for under 16s only.

Oliver Studdert, partner at law firm Irwin Mitchell, which worked on the challenge with Article 39, said he was delighted that the High Court has granted permission for the case to proceed to a full hearing.

“All of these grounds were held to be arguable by the court and will now be heard at a full judicial review hearing. By failing to extend the reach of the new regulations to 16- and 17-year-olds in the care of local authorities, the Secretary of State is declaring it is acceptable that thousands of children are placed in wholly unsuitable placements every year without receiving any care. Changes of placement, from a care to non-care setting, can and do happen overnight, often for no reason other than the child’s age. Many 16- and 17-year-olds entering the care system will never receive care.”

Vicki Nash, Head of Policy, Campaigns and Public Affairs at mental health charity Mind, said it is right that a judicial review will go ahead and that the issue will be looked at properly.

“We know that the trauma that many looked after children have gone through means they are far more likely to experience mental health problems and need additional support.

“We do not believe it is possible to provide that support adequately in independent or semi-independent accommodation, where care isn’t available on site and where trained adults are not available round the clock.”