The High Court has this afternoon (16 March 2022) handed down its judgment on controversial secondary legislation which protects children in care aged 15 and under but not those aged 16 and 17. It has rejected all three grounds of Article 39’s claim: that the Education Secretary irrationally discriminated against 16 and 17 year-olds; that he did not fulfil his equality duties; and a consultation undertaken by the Department for Education was unfair.
The secondary legislation, in force from September 2021, bans local authorities from placing younger children in properties which are unregulated and don’t follow care standards. It does this by listing the types of settings in which children in care aged 15 and under can live, when they are not able to live with family members, foster carers or in children’s homes. Each of the settings in the secondary legislation guarantees care where children live, and they are registered and inspected by Ofsted or the Care Quality Commission, sometimes both.
However, 16 and 17 year-olds in care have not been given the same protection because the government believes their needs can be met in accommodation such as bedsits, flats, shared houses and hostels – where children receive a set number of hours of support a week but not day-to-day care or supervision. When ministers made their decision over a third of children in care aged 16 and 17 – more than 6,000 at any one time – were living in this kind of accommodation. The Children’s Commissioner for England found that children were frequently living in these properties alongside adults who had recently left prison and/or were struggling with mental health difficulties or addiction. Twenty-nine children in care aged 16 and 17 have died in the past five years while living in accommodation officially deemed to be preparing them for ‘independence’.
The secondary legislation introduced last year is the first time the law has specified the type of settings where children in care may live on the basis of their age.
Mr Justice Holgate rejected the claim brought by Article 39 children’s rights charity that ministers had irrationally discriminated between highly vulnerable children on the basis of their age. Finding that the Children Act 1989 “does not contain any provision which requires all care to be provided in situ or as part of a placement”, he continued:
“On the evidence before the court it is plain that some looked after children aged 16 or 17 are assessed as being suitable for a very independent level of living and are therefore placed in a shared home with care in the form of external, rather than in situ, support. For example, a child might be assessed as not requiring any assistance from the person responsible for the shared house in organising the child’s use of educational, training or medical facilities provided for in the care plan.”
Despite referring later in his judgment to “very troubling examples” of children suffering sexual exploitation and abuse while living in unregulated accommodation, Mr Justice Holgate found that independent and semi-independent accommodation “is the most appropriate solution” for some 16 and 17 year-old children in care, therefore it could not be irrational to draw a distinction on the basis of age. He concluded:
“The Secretary of State was legally entitled to take the view that unregulated accommodation of a sufficiently high quality may continue [for 16 and 17 year-olds].”
Carolyne Willow, Article 39’s Director, said:
“This is a very upsetting judgment because of the profound implications for children in care. There is no question that children will continue to be placed in wholly unsuitable accommodation. Ministers were pushed into taking action because of mounting evidence of the harms suffered by children in care living in properties which bypass ordinary care standards. Instead of protecting all children, they decided to create a two-tier system where children in care aged 15 and under will always be cared for where they live, and those aged 16 and 17 can go without care in their home. One in three children in care aged 16 and 17 already lives in care-less properties. The secondary legislation is bound to increase that proportion since the brake on councils putting children into these places is lifted as soon as a child reaches 16.
“Age on its own tells us nothing about a child’s history, what they have been through before coming into care, whether they are disabled, have mental health difficulties or have suffered sexual or physical abuse or other trauma. It doesn’t tell us about the child’s legal situation, or what a family court envisaged for them when making a care order and handing a local authority parental responsibility. Age also doesn’t tells us how things are going for a child at school or college, nor is it an indicator of a child having special educational needs or learning difficulties.
“It’s no good ministers saying that local authorities will undertake careful assessments of each individual child, and only place 16 and 17 year-olds in settings without care and supervision when they can cope with this and the accommodation is of sufficient high quality. That was the legal position before ministers took remedial safeguarding action for younger children but not for those aged 16 and 17.
“The government has removed discretion from local authorities in respect of children aged 15 and younger, strongly implying they don’t trust councils to make the right decisions for this cohort of children. In research carried out for the Department for Education with 22 local authority managers, 16 (73%) reported this kind of accommodation is of “variable quality” and only 6 (27%) said it was “good quality”. Just 3 of the 22 local authorities (14%) said they had no concerns about the unregulated accommodation they were using for children in care. In their responses to the consultation, young people gave accounts of abuse, exploitation, requiring emergency medical care, feeling lonely and afraid, being pushed into drug-taking and struggling with their homework alone. The secondary legislation has done nothing to help prevent any of these harms for children aged 16 and 17.
“Imagine if ministers had been made aware of children suffering serious harms in schools or children’s hospitals and had decided to legislate away the risks but only for a particular age group, or they had protected boys or girls only. There would be an outcry.
“The support we’ve received so far from the care experienced community, from those who work with children in care, and concerned members of the public has been phenomenal. We’re extremely sorry to be sharing such deeply disappointing news, and commit to doing all we can to put this right.”
Mr Justice Holgate rejected Article 39’s claim that the Education Secretary was required under the Equality Act 2010 to consider the impact of not extending the ban on 16 and 17 year-olds, and boys and children from black, Asian and minority ethnic communities who are disproportionately placed by councils in properties such as shared houses and hostels. He also dismissed Article 39’s claim that the public consultation undertaken by the Department for Education was unfair because it failed to ask whether 16 and 17 year-olds should also be safeguarded; and that the Education Secretary failed to conscientiously consider young people’s responses to that consultation. An unpublished summary prepared by civil servants of the responses from 165 young people was not available to ministers when they were asked to approve plans for the secondary legislation. Despite this, Mr Justice Holgate found the “analysis by officials was appropriate and, where relevant, supported by the independent report”.
The independent report commissioned by the Department for Education had analysed responses from 237 organisations and a small number of individuals only; the 165 responses from young people (41% of total respondents) were not included.
Oliver Studdert, a public law and human rights lawyer at Irwin Mitchell representing Article 39, said after the hearing:
”This is an incredibly sensitive area which affects thousands of vulnerable 16 and 17 year-olds. My client is very disappointed by this judgment and remains of the firm view that the decision not to extend the ban on unregulated accommodation to 16 and 17 year-olds was unlawful. This is an extremely important issue and we will be seeking permission to appeal to the Court of Appeal.”
Although not part of his decision-making, Mr Justice Holgate referred to the absence of suitable regulated homes for children in care as being of “great importance”. Counsel for the Department for Education had explained to the court “there is already a nationwide shortage of regulated placements and extending the ban to all children would require approximately 6,000 new placements in children’s homes or foster care to be created”. This would take several years, she said. In the hearing itself, the Secretary of State told the judge through counsel that the cost of requiring all providers of accommodation for 16 and 17 year-olds to follow the existing children’s homes quality standards (which include a requirement to provide care appropriate to the individual child’s needs) would be around £500 million.
Last week the Competition and Markets Authority (CMA) reported that accommodation without care produces the highest profit margin within the children’s care system. Its analysis of profits made by the 15 largest companies found there is, on average, a 36% profit margin on the supply of accommodation without care. This compares to average profit margins of 23% for children’s homes and 19% for fostering. The CMA reports that the 15 largest firms operating in the children’s care system in 2020 charged an average weekly price of:
- £3,830 for a children’s home place (with average operating profit of £910 per week);
- £820 for a place in foster care (with average operating profit of £159 per week); and
- £948 for a place in accommodation without care (with average operating profit of £330 per week).
Article 39’s application for permission to appeal was refused by the Judge. Article 39 intends to renew this application in the Court of Appeal.
- Article 39’s case was heard in the High Court 8-9 February. The High Court judgment, dated 16 March 2022, is here.
- Article 39 is represented by Oliver Studdert and Katie Wilkins of Irwin Mitchell, Steve Broach of 39 Essex Chambers, and Khatija Hafesji of Monckton Chambers.
- This legal challenge has only been possible through a CrowdJustice appeal. Donations to support our appeal can be made here.
- The secondary legislation was introduced into Parliament in February 2021 and came into force on 9th September 2021. It can be found here.
- Ofsted’s guidance on what counts as support or care – ‘Indicators for supported accommodation’ can be found here.
- Data on children in care can be found here.
- The Children’s Commissioner for England’s 2020 review can be found here.
- The Competition and Markets Authority 2022 report can be found here (see pages 49-50 for the profit margins included in this release).