This month, we examine the unsuccessful judicial review brought by Article 39 against the Secretary of State for Education which relates to the changes introduced by The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021. The 2021 Regulations amended The Care Planning, Placement and Case Review (England) Regulations 2010, making it unlawful for local authorities to place looked after children under the age of 16 in unregulated accommodation (often referred to as ‘independent’ or ‘semi-independent accommodation’ or ‘supported accommodation’) – through prescribing a list of permitted placements under ‘other arrangements’ in section 22C(6)(d) of the Children Act 1989.
This prescribed list in the 2021 Regulations permits children aged 15 and under to be placed in the following settings under ‘other arrangements’: a care home; a hospital; a residential family centre; a school providing accommodation that is not registered as a children’s home; or an establishment that provides care and accommodation for children as a holiday scheme for disabled children.
These ‘other arrangements’ come below several other types of settings, set out in section 22C of the Children Act 1989, including the child living with a family member, a foster carer or in a children’s home.
The effect of the 2021 Regulations is that looked after children aged 15 and under must always be placed by local authorities in settings which are regulated and where they receive care, whereas this same protection has not been granted to looked after children aged 16 and 17.
Article 39 argued the decision not to extend the ban / legal protection to all looked after children in England was irrational, in breach of the public sector equality duty and based on a flawed public consultation.
High Court rules there was no irrational discrimination in banning unregulated accommodation for children aged 15 and younger but not for 16- and 17-year-olds
The judge cited government data relating to the placement of looked after children in unregulated accommodation. Approximately 6,390 looked after children aged 16 or 17 and about 100 children aged 15 or younger were living in unregulated accommodation at the end of March 2020, representing around 8% of the total number of looked after children in England. This was an increase in the proportion of looked after children in unregulated accommodation from around 5% in 2010.
The government’s view, as expressed to the High Court, was that unregulated accommodation is a vital part of the care system as it allows local authorities to meet the needs of older children “who are ready to live with an increased level of independence” [paragraph 4 of the judgment].
Growing concerns about the use of unregulated accommodation led to the launch by the government of a public consultation, ‘Reforms to unregulated provision for children in care and care leavers’ (February 2020).
The consultation proposed prohibiting the use of ‘independent and semi-independent accommodation’ for children under the age of 16, as well as other measures. The following year, in February 2021, the Secretary of State for Education introduced The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021, which have the effect of prohibiting the use of unregulated accommodation for looked after children aged 15 and younger. The 2021 Regulations came into force on 9 September 2021. [Alongside the effective ban on the use of unregulated accommodation for children aged 15 and younger, the government announced it would proceed with a registration and inspection regime for supported accommodation for 16 and 17 year-olds based on new national standards, which were subject to a second consultation in 2021].
In addition to justifying the continued use of supported (unregulated) accommodation as a positive choice for ‘some’ children aged 16 and 17, the government cited “a nationwide shortage of regulated placements” and the predicament a blanket ban on unregulated accommodation would create, i.e., the need to create approximately 6,000 new placements in regulated accommodation (such as children’s homes or foster homes). This, the government argued, would take several years to provide [paragraph 17 of the judgment].
Article 39’s legal challenge
Article 39’s judicial review claim was based on three separate grounds:
- Irrationality: The differential treatment of children over and under the age of 16 is irrational and therefore in breach of public law.
- Equality duties: The Department for Education failed to comply with the public sector equality duty (PSED), which is legally required under section 149 of the Equality Act 2010, by failing to consider whether extending the ban on unregulated accommodation to children aged 16 and 17 years would advance equality of opportunity.
- Consultation: The public consultation which informed the changes introduced by the 2021 Regulations was flawed, unfair and unlawful.
The High Court rejected all three grounds of Article 39’s claim.
The legal framework
- Primary legislation
In all actions and decisions about looked after children, the general welfare duty in section 22 of the Children Act is predominant – the local authority must (‘shall’) safeguard and promote the child’s welfare.
Section 22C of the Children Act 1989 governs the ways in which individual looked after children are, in the language of the Act, ‘accommodated and maintained’, creating a ‘hierarchy’ of options.
If it is not possible for the child to live with their parent (or another person with parental responsibility) because it would not be consistent with their welfare or would not be reasonably practicable, the local authority must place the child in accommodation which is, in its opinion, the most appropriate placement available. The accommodation ‘options’ available to local authorities in these situations are:
a) Placement with a relative, friend or a person connected with the child;
b) Placement with a foster carer;
c) Placement in a children’s home (registered with Ofsted in accordance with the Care Standards Act 2000); or
As part of the duty expressed in section 22C, when deciding which accommodation option is most appropriate for the individual child, local authorities must give preference to option a) above AND, so far as is reasonably practicable, must choose the option that is in the local authority area AND that:
- Allows the child to live near their home;
- Does not disrupt their education or training;
- Enables the child to live together with their sibling if the local authority is also providing accommodation to them; and
- If the child is disabled, meets their specific needs. [section 22C(7)-(8)]
Regulations and statutory guidance set out the detailed arrangements for ensuring children are looked after in a variety of regulated settings, including foster care and children’s homes where the majority of looked after children live. The Fostering Services (England) Regulations 2011, for example, require foster carers to “care for any child placed with them as if the child was a child of the foster parent’s family and to promote that child’s welfare” [see here]. The Children’s Homes (England) Regulations 2015 include nine quality standards that homes must follow including a ‘quality and purpose of care’ standard [see here].
- The secondary legislation challenged by Article 39
The changes introduced by The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 affected The Care Planning, Placement and Case Review (England) Regulations 2010 in three ways:
- They slightly amended regulation 27 of the 2010 Regulations; and
- They added regulation 27A to the 2010 Regulations.
- They added regulation 27B to the 2010 Regulations (related specifically to unaccompanied children whose age is uncertain).
Please note that the text of The Care Planning, Placement and Case Review (England) Regulations 2010 on legislation.gov.uk does not reflect the changes introduced by The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 so it’s necessary to consult both when citing regulation 27 (amended) or regulation 27A (new).
Regulation 27 (as amended) concerns the general duties of local authorities when placing a child in other arrangements, meaning arrangements set out in section 22C(6)(d) of the Children Act 1989. The 2021 amendments relate primarily to terminology and the new age-based distinction; they do not affect any of the prior duties on local authorities. Regulation 27 therefore continues to place a duty on local authorities (‘must’) to meet the following requirements BEFORE placing a child in ‘other arrangements’ accommodation under section 22C(6)(d):
a) Be satisfied that the accommodation is suitable for the child (this applies to all children);
b) Where the accommodation is not specified in regulation 27A, have regard to the matters set out in Schedule 6 (this applies only to children aged 16 and 17);
c) Arrange for the child to visit the accommodation unless it is not reasonably practicable (this applies to all children); and
d) Inform the IRO (this applies to all children).
Regulation 27A (new) concerns ‘Prohibition on placing a child under 16 in other arrangements’. It prescribes the type of accommodation which falls under ‘other arrangements’ for looked after children aged 15 and under:
- A care home (which has the same meaning as per the Care Standards Act 2000 – see here);
- A hospital;
- A residential family centre (as defined in the Care Standards Act 200 – see here);
- A school providing accommodation that is not registered as a children’s home;
- An establishment that provides care and accommodation for children as a holiday scheme for disabled children as defined in regulation (see here for the definition).
As a result of this new Regulation 27A, looked after children under the age of 16 can only be placed in accommodation that is regulated by the statutory scheme (such as the Children Act 1989, the Care Standards Act 2000 or the Education Act 1996). Critically, this now means that all of the placement types (set out in primary and secondary legislation) for children aged 15 and under provide care where children live. As noted above, the nature of this care is set out in relevant secondary legislation (i.e., different regulations) and elaborated in statutory guidance.
Conversely, children aged 16 and 17 can be placed by local authorities in ‘other arrangements’, which are currently not regulated. [The government plans to introduce new standards for supported accommodation in 2023 – see here for more information. However, these will not include any requirement to provide care to children. This is because the Care Standards Act 2000 requires establishments providing care and accommodation to children to be registered as children’s homes].
The court’s decision
- In relation to ground 1 – irrationality
Public bodies, including central government departments and local authorities, are required to follow public law principles when exercising their functions – they must act lawfully, rationally, fairly and compatibly with human rights obligations. Failure to comply with these principles mean that a public body’s decisions may be challenged via the judicial review process.
Article 39 argued that the introduction of a ban on unregulated accommodation for children aged 15 and younger but not for children aged 16 and 17 was irrational, because there was no rational justification for the differential treatment of children aged 15 and those aged 16 and 17. Article 39 argued that this decision was not supported by the evidence before the government, rendering it irrational and in breach of public law principles.
The government’s position was that the changes introduced by the 2021 Regulations do not require placements in unregulated accommodation to be made and that such decisions are a matter for local authorities. The court agreed, concluding that that a policy cannot be deemed irrational in a situation where the law requires decisions to be based on individual needs’ assessments.
The court took the view that there was “ample evidence” before the Secretary of State to justify the distinction between children above and below the age of 16 in relation to placements in unregulated accommodation, including “the wishes expressed by some young persons to be placed in unregulated accommodation”, and the fact that the existing legal framework recognises the increasing autonomy of young people aged 16 and 17 years (e.g. in section 20(11) of the Children Act 1989). Therefore, the court found that the Secretary of State for Education was “legally entitled to take the view that unregulated accommodation of a sufficiently high quality may continue to be provided … to 16 and 17 year-old looked after children” [paragraph 113 of the judgment].
The court dismissed Article 39’s argument that the government failed to take into account its own data illustrating gender and race patterns with respect to the use of unregulated accommodation. [Department for Education data shows that, compared to the national average, there’s a far higher proportion of boys and children from black, Asian and minority ethnic communities living in unregulated accommodation].
The court rejected Article 39’s reliance on the Southwark judgment which confirmed that looked after children “need more than a roof over their heads”.
Finally, the court stated there was nothing within the Children Act 1989 that would require all care to be provided to children where they live (‘in situ’) or as part of a placement: “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” [paragraph 97 of the judgment].
- In relation to ground 2 – breach of the public sector equality duty (PSED)
Article 39 argued that by failing to consider whether extending the ban on the use of unregulated accommodation to children aged 16 and 17 would advance equality of opportunity, the government failed to comply with the PSED. The government’s position was that the PSED does not apply to policies which are not part of the government’s proposal.
The court agreed with the government’s interpretation of recent case law (Adiatu, see here) in which the High Court decided that section 149 of the Equality Act 2010 (PSED) does not impose a requirement to have regard to the equalities consequences of steps that were never considered.
On that basis the court rejected Article 39’s challenge on the equality ground.
To learn more about the PSED, please refer to our guide to the Equality Act 2010 (page 16).
- In relation to ground 3 – consultation
Firstly, Article 39 argued that the government failed to comply with the requirement to give sufficient reasons for its proposal (to limit the ban / legal protection to children aged 15 and younger only) to enable an intelligent consideration of and response to it. The consultation was unfair because it should have included an option of extending the ban to children aged 16 and 17. This argument is connected to the so-called Gunning principles which require that:
“To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken.” [See paragraph 33 of  EWCA Civ 1577]
The judge disagreed:
“In my judgment it is clear that the Secretary of State was under no obligation in the circumstances of this consultation exercise to seek views specifically on extending the proposed prohibition of unregulated placements to 16 and 17 year-old children. The consultation document plainly stated that the Government proposed to maintain the status quo in relation to those children. It should have been obvious to consultees who did not think that the proposed prohibition went far enough that they could say so” [paragraph 122 of the judgment].
Secondly, Article 39 argued that the fourth Gunning principle, which requires that “the product of the consultation must be conscientiously taken into account in finalising any statutory proposals” had not been followed. Here Article 39 was particularly concerned about the lack of information provided to ministers about young people’s views and experiences. For instance, in a briefing to the Secretary of State civil servants stated that “the vast majority” of consultation responses supported the proposed reforms while omitting accounts shared through the consultation which included children’s experiences of sexual exploitation and abuse while living in unregulated accommodation.
The court disagreed, taking the view that the analysis by officials was appropriate and that ministers were fully aware of the safeguarding issues raised within the consultation and they were seeking to address them by proposing new national standards and the involvement of Ofsted. The court stated:
“Very troubling examples were put forward of inappropriate placements in unregulated settings and of sexual exploitation and abuse. They were referred to in a summary document prepared by officials. Whilst it is true that no mention is made of specific incidents of this kind in the briefing to ministers or in the Consultation Response, it is plain on any fair reading of the material which led up to the making of the 2021 Regulations, that ministers were fully aware of this issue and were seeking to address it, for example, by proposals for national standards and the involvement of Ofsted.”
Article 39 has applied for permission to appeal the High Court’s decision.
You can read the full judgment here: Article 39, R (On the Application Of) v Secretary of State for Education  EWHC 589 (Admin) (16 March 2022)
You can read Article 39’s statement in response to the judgment here.