Legal action launched against Department for Education over unregulated accommodation

A children’s rights charity has launched legal action over Department for Education (DfE) plans to ban unregulated accommodation – but only for those aged 15 and younger.

The ban, announced in February, is due to come into force in September 2021.

Children’s rights charity Article 39 says the change will leave thousands of children in care aged 16 and 17 without protection, adding that it is “discriminatory and an injustice to older children in care”.

From 9 September, councils will no longer be allowed to put children who are aged 15 or younger in accommodation where they receive no adult care and little or no adult supervision.

The protection has not been extended to 16- and 17-year-olds in care however, who campaigners say are similarly vulnerable and for whom there is “an abundance of evidence” that they need loving, nurturing care just as much as younger children.

The ban on unregulated accommodation marks the first time that Government has legislated for age-based placement decision-making for children in care.

Government data shows that roughly 100 children aged 15 and younger will benefit from the legal change, whereas around 6,000 children aged 16 and 17 who are looked after by local authorities are living in unregulated accommodation. A third of 16- and 17-year-olds in care currently live in unregulated accommodation.

These are children of compulsory education and training age, and nearly three in ten (29%) are the subject of a care order where a local authority has parental responsibility for them. Around four in ten children living in unregulated accommodation were put there by local councils within a week of entering care.

The charity has also lodged a Freedom of Information (FoI) request with the Department for Education about the numbers of children living in unregulated accommodation who have died or been seriously harmed over the past two years, after it was revealed that four children living in unregulated settings had died during the first pandemic lockdown (between April and September 2020).

Carolyne Willow, Article 39’s Director, said the change will create a ‘two-tier’ system.

“Families don’t expect our children to go without care and fend for themselves from the age of 16, and neither should the care system,” Willow said, adding: “The majority of children in care have already endured great suffering; we should be ensuring they receive as much love, care and adult help as we can possibly give them, not pushing them into so-called trainer flats, bedsits and hostels before they’ve even finished their GCSEs.”

“England remains a wealthy country and we have many decades of learning about the consequences of not meeting children’s needs and expelling children from care years too early. This legal change suggests the Department for Education needs tutoring in basic child and adolescent development.”

The Department for Education says it plans to develop national standards for unregulated accommodation, however these will not include requirement to provide care to children. This is because any establishment providing both care and accommodation to children must be registered as a children’s home and meet existing quality standards.

Oliver Studdert, partner at law firm Irwin Mitchell representing Article 39 for the legal challenge, said the changes as they stand “irrationally discriminate” against 16 and 17-year-olds. Studdert added that boys, as well as those from Black, Asian and Minority Ethnic communities will be “disproportionately” affected. They also contend that the Government’s consultation on the changes was inadequate as it focused only on provision of care for under 16s.

“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,” Studdert said. “Changes of placement, from a care setting to an unregulated 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.”

The legal challenge comes just six months after the Court of Appeal found that the Education Secretary acted unlawfully in removing safeguards for children in care, again as a result of legal action by Article 39.

In that case, the Court of Appeal unanimously voted that Gavin Williamson acted unlawfully in failing to consult children’s rights organisations before making changes to legal protections for children in care in England.