Education Secretary gives green light to two-tier care system

The Department for Education has today (19 February) published its plans for dealing with unregulated accommodation for children in care. It follows a public consultation launched a year ago after a scathing BBC Newsnight investigation which ran from 2019. A year ago, in response to action from a coroner to prevent future deaths of 16 to 18 year-olds living in unregulated accommodation, the Education Secretary conceded that unregulated provision required “immediate and decisive action”.

Last year, the Children’s Commissioner for England reported that 12,800 children in care had spent some time living in unregulated settings during 2018/19. Today, the Department for Education has announced:

  • It will ban the use of unregulated accommodation for children in care aged 15 and under from September 2021 (through amending The Care Planning, Placement and Case Review (England) Regulations 2010). The government admits this will help only around 100 children in care at any one time. This is because the vast majority of children put into unregulated accommodation by local authorities are aged 16 and 17.
  • It will consult this year on new standards for independent and semi-independent accommodation for children in care aged 16 and 17, “overseen by an Ofsted-led registration and inspection regime”, making it regulated. However, these standards will not include care for children. This is because quality standards already exist for establishments which provide care and accommodation to children up to and beyond the age of 18. Any local authority, charity or private company providing accommodation and care to children must already register the establishment with Ofsted and meet the quality standards. The Children’s Commissioner found that 73% of unregulated accommodation is run for profit, by private companies. What is being announced today is the development of national standards which will allow these companies (and a small number of charities and local authorities) to continue providing accommodation to children in care with support but no care.
  • It will legislate to enable Ofsted to issue enforcement notices to providers who are acting illegally – by providing care and accommodation but not registering as a children’s home and following the quality standards set down by law.

No new funding has been announced today to help local authorities develop children’s homes or other forms of care (though the government says “plans will be developed” for this). Last year, the Association of Directors of Children’s Services urged the Treasury to provide capital funding to councils so they could develop their own children’s homes instead of having to rely on the “costly independent sector”.

Article 39 is incredibly disappointed to read that we were in a minority in calling for all children in care to receive care. Today’s consultation outcome document states that only “a small group of respondents” urged a complete ban on what is currently unregulated accommodation. Our consultation response had argued that all children need and have the right to be cared for, and that families adapt as children enter their teenage years but we don’t stop caring.

We are very concerned that the government states that their work with young people showed they were “overwhelmingly positive about the need for standards”. The first consultation summary document for children and young people didn’t inform them that quality standards already exist for children’s homes, or that the proposed new standards would leave out care. With others in our #KeepCaringTo18 campaign steering group, we revised the summary document, with the agreement of the Department for Education, but it appears that the original may have been used instead. After Article 39 and 90 other organisations and experts wrote to the Children’s Minister Vicky Ford asking for the deadline to be extended due to the pandemic, children and young people were able to submit their views to 23 June 2020.

Extract from Article 39’s consultation response, April 2020

A policy which protects only looked after children under the age of 16 from being placed in non-care settings risks breaching the Human Rights Act and the Equality Act, and is not in conformity with UNCRC obligations. The government’s own data shows that children and young people from black and minority ethnic communities are disproportionately placed in independent and semi-independent accommodation. It is more often teenagers who have experienced abuse, trauma and/or exploitation over many years who end up in unregulated settings.

We consider the partial ban on non-care placements to be discriminatory and not consistent with local authorities duties under the Children Act 1989. All children need, and have the right to be, loved, nurtured and cared for. As children’s capacities evolve, parents and caregivers encourage and support greater autonomy. This goes hand-in-hand with continuing care.

Carolyne Willow, Article 39’s Director, said:

“The Education Secretary states in his foreword that he cannot imagine a circumstance in which a child under the age of 16 would be put somewhere where they don’t receive care. But children aged 16 and 17 also need care. Why would they be in the care of the state otherwise? Even the inspection framework for child prisons demands that children receive care.  

“Today’s shameful policy announcement entrenches a two-tier care system. Children who live with foster carers are already entitled to remain part of these families until they are 21. Yet the government is saying today that it is entirely legitimate for children who don’t live with their own family or a foster family to be denied care from their 16th birthday. 

“When the Education Secretary committed a year ago to ban unregulated accommodation for children in care, he should have known that all establishments that were providing care and accommodation to children had to, by law, register as children’s homes and follow quality standards. It’s only establishments that don’t provide care which can avoid having to register as children’s homes. So the Minister had a choice of whether to build up the care system by ensuring every child receives care or give the green light to a new, inferior set of standards which seek to legitimise the absence of care for teenagers. That he has been able to opt for the minus-care arrangement shows a lack of compassion for teenagers at the heart of government. There is also the fact that children from black, Asian and minority ethnic communities are disproportionately put into unregulated accommodation.

“There are only two quotes from young people in the document published by the government today, yet more than 160 young people gave their views. When Article 39 held an online discussion with 10 young people about unregulated accommodation, observed by a civil servant, one young person described unregulated accommodation as being ‘like a house without parents’ and another said ‘you have to be like Bear Grylls and survive’. One girl was rushed to hospital with damage to her lungs caused by mould. A boy was the victim of a very serious crime committed by a member of staff while living in unregulated accommodation. 

“We will continue to do our best in trying to persuade the government to guarantee care to all children in care. Parents up and down the country provide loving care to teenagers while respecting and encouraging their growing autonomy, and so should the care system.”  


Read the Department for Education’s consultation outcome document here.
Read Article 39’s consultation response (April 2020) here.
Read the report from our online consultation session with a care leavers forum (June 2020) here.

Join our #KeepCaringTo18 campaign here.