The Department for Education has today (18 July) laid secondary legislation before Parliament which adds supported accommodation to the list of services which are (to be) regulated under the Care Standards Act 2000. It is due to come into force on 8 August 2022.
The secondary legislation does not provide a description of supported accommodation, but sets out that it is a place where a child is accommodated and that it falls within ‘other arrangements’ in section 22C(6)(d) of the Children Act 1989 and ‘suitable accommodation’ in section 23B(8)(b) of the Children Act 1989. This means it is accommodation which does not fall within other aspects of section 22C(6) of the Children Act 1989 – where children live with with family members or others they know, or in foster care or children’s homes – and that it is for children who are aged 16 and 17 and are still looked after by a local authority, and children of this age who are deemed to be ‘care leavers’. Today’s secondary legislation also lists what is not supported accommodation:
(a) a care home;
(b) an institution within the further education sector;
(c) a 16 to 19 Academy;
(d) a hospital;
(e) a residential family centre;
(f) a school providing accommodation that is not registered as a children’s home; or
(g) a holiday scheme for disabled children.
The secondary legislation introduces new terminology – ‘supported accommodation undertaking’, which is defined as “an undertaking which consists of or includes arranging the provision of supported accommodation”. The Explanatory Memorandum accompanying the secondary legislation states that further draft regulations, to be subject to consultation, will set out:
- The requirements to be met by supported accommodation undertakings;
- Registration and inspection requirements; and
- National standards for supported accommodation.
The forthcoming regulations will, among other things, prohibit local authorities from using accommodation for children in care and care leavers aged 16 and 17 which is not registered as supported accommodation or otherwise permitted.
The House of Commons begins its summer recess on 21 July 2022, so there is unlikely to be any parliamentary scrutiny of today’s secondary legislation or the government’s wider plans before the autumn.
Last month, Article 39, Amour Destiné, The Care Leavers’ Association, Just for Kids Law and the Together Trust jointly wrote to the then Education Secretary Nadhim Zahawi urging him to act decisively in implementing the children’s social care review’s May 2022 recommendation that all children in care receive care. We have not yet received a response to this letter. However, today’s secondary legislation shows that the government is proceeding with regulating supported accommodation outside the children’s homes regulations, which means children living in these settings will continue to be denied care.
The Care Standards Act 2000 defines an establishment which provides care and accommodation to children as a children’s home.
Before publishing its final report, the care review had previously, through its interim report (published June 2021), backed the government’s position that children in care aged 16 and 17 can be accommodated in properties where they do not receive care. The review’s support for the government was raised by counsel for the Department for Education in a High Court hearing in February this year, in proceedings brought by Article 39 challenging what we argue is discriminatory secondary legislation. That secondary legislation came into force in September 2021 and guarantees care to every child in care only to the age of 15. Having lost the case, we are presently awaiting a decision as to whether our challenge can be heard in the Court of Appeal.
Department for Education data published last week shows:
- There were 5,980 children in care aged 16 and 17 living in unregulated, non-care settings on 31 March 2021;
- More than 4 in 10 children living in ‘independent accommodation’ were from black, Asian and minority ethnic communities – compared with an average of 9% of all children in care;
- Over half of children living in ‘semi-accommodation’ were from black, Asian and minority ethnic communities – compared with an average of 9% of all children in care;
- Boys comprise 7 in 10 children living in unregulated, non-care settings;
- Nearly 1 in 3 children living in unregulated, non-care settings were the subject of a care order made by a family court;
- Around 8% of children living in unregulated, non-care settings were disabled;
- 37% of children living in ‘semi-accommodation’ went to live there within less than a week of entering care;
- The vast majority of properties aimed at ‘independent living’ (77% of children) or ‘semi-independent living’ (84% of children) are run for profit.
Article 39’s Director, Carolyne Willow, said:
“Even though the government has repeatedly stated its belief that there are children in care who do not require care, the reality of this latest secondary legislation hits hard.
“This further entrenches a second-rate care system for older children, where they don’t actually receive any care where they live. Boys who make perilous journeys to the UK without a parent or carer, in the hope of securing refugee status, are amongst those most affected.
“I don’t believe the health service or the education system would tolerate an equivalent recasting of paediatric services, or the school system, yet here we have the radical reshaping of our children’s care system which will take years to undo.
“More than £140 million of public funds are being poured into this, but we cannot even tell children there will be a meal waiting for them when they get home from school or college, that their clothes will be washed and when they need to go to the GP or hospital they will not be alone. We know that 29 children in care aged 16 and 17 died in these settings over the past five years, though still the government appears to believe it’s acceptable for children to go for long periods without adult supervision. It beggars belief that children in the care of the state, including those for whom local authorities have parental responsibility, are expected to manage alone years ahead of those growing up in loving and supportive families.”
Latest Office for National Statistics data shows that 91% of 18 year-olds still lived with their parents in 2021. One-third (34%) of men aged 20 to 34 still lived with their parents, and 22% of women aged 20 to 34 still lived with their parents.