Category: Unregulated accommodation

Care for all children in care

Article 39 is working with other charities and social work experts to press for all children in care (up to age 18) to receive care. Current government plans only guarantee this to age 16.

UPDATE, 27 February: we have received data from the Department for Education in response to our freedom of information request. See table below.

Information obtained by Article 39 following an FOI request

The majority of children in care (72%) live with foster carers. A much smaller proportion (8%) of children live in children’s homes. The person responsible for the children’s home must ensure staff follow quality standards, which include that they:

  • Protect and promote each child’s welfare;
  • Treat each child with dignity and respect;
  • Provide personalised care that meets each child’s needs; and
  • Help each child to understand and manage the impact of any experience of abuse or neglect.

Altogether, children’s homes must follow nine quality standards:

  1. The quality and purpose of care standard
  2. The children’s views, wishes and feelings standard
  3. The education standard
  4. The enjoyment and achievement standard
  5. The health and well-being standard
  6. The positive relationships standard
  7. The protection of children standard
  8. The leadership and management standard
  9. The care planning standard

An even smaller number of children (2,790 at 31 March 2019 – 4% of all those in care) live in what’s called semi-independent accommodation (also called supported accommodation). This type of accommodation is currently unregulated, which means providers do not have to register with Ofsted, and there is no independent inspection. Government research (2016) found the main providers of supported accommodation for vulnerable 16 to 25 year-olds to be: housing associations (64%); charities/voluntary organisations (26%); local authorities (5%); and ‘others’ (5%). However, recent Department for Education research found that 77% of semi-independent accommodation for children in care is run by private providers. Local authorities run 10% of provision and charities/voluntary organisations 9%.

Research published by the Department for Education shows that over half (51%) of children in care who live in semi-independent accommodation are from black and minority ethnic communities. There are six times more unaccompanied asylum-seeking children living in semi-independent accommodation than other children in care (36% versus 6%).

The majority of children (70%) in semi-independent accommodation are there under Section 20 of the Children Act 1989 (a voluntary agreement between a local authority and parents and/or the child). Under a third (29%) of children are the subject of a Care Order – where the local authority has parental responsibility for them.

39% of children enter semi-independent accommodation within a week of being looked after by a local authority.

In February 2020, the Department for Education launched a consultation about semi-independent and independent accommodation for children in care. The proposals are:

  • That local authorities are banned from placing children under the age of 16 in semi-independent and independent accommodation.
  • A new legal definition of ‘care’ (though the consultation does not provide one).
  • A new requirement on local authorities to liaise with local police forces when they place children in care in semi-independent or independent accommodation outside the child’s home area. This is to help councils make a “considered judgement” over whether to place children in these settings, or whether extra support or monitoring are required.
  • New national standards for semi-independent and independent accommodation, with each setting “making it clear that it cannot provide ‘care and accommodation wholly or mainly for children’ as it is not a registered children’s home”. Four standards are proposed: the purpose and intent standard; the quality of accommodation standard; the support standard; and the protection of children and young people standard.
  • Two options for putting the standards into practice – a requirement on local authorities to only place children in care in accommodation which meet the new standards (to be checked when Ofsted inspects councils) or a requirement for providers to register with Ofsted, and to be inspected against the standards.
  • A new requirement on independent reviewing officers to visit children in care to assess whether their placement is meeting their needs.
  • A new power for Ofsted to issue enforcement notices to providers of semi-independent and independent accommodation who illegally provide care and accommodation to children (or act unlawfully in other ways).

Article 39 believes all children in care should receive care wherever they live. All children in care are, by definition, vulnerable. Sixteen and seventeen year-olds are children. The Children Act 1989 and the United Nations Convention on the Rights do not differentiate children’s entitlements to care and protection on the basis of age.

There is an alternative to creating a new form of regulated residential setting for 16 and 17 year-olds: modifications to the Children’s Homes Regulations for establishments which provide care and accommodation wholly to those aged 16 and over. This would recognise and respect teenagers’ growing autonomy while ensuring all children in care receive care. Families do not stop caring for children when they turn 16, and neither should the state. This is consistent with the Conservatives 2019 election manifesto promise: “Children who end up in care are more likely to struggle as adults, denied the love and stability most of us take for granted. We will prioritise stable, loving placements for those children…”. Love is impossible without care.

Working from the Children’s Homes Regulations would save civil servants from having to come up with a legal definition of care. Were this a straightforward task, a form of words would surely have been included in the consultation document.

Read the consultation document here.
DfE research documents (February 2020) can be found here and here.

Government’s plans for children in care seriously disappointing

The Department for Education has today announced a public consultation on its plans for children in care who are placed in unregulated accommodation by local authorities. Staff who work in such accommodation are not legally permitted to provide care to children; they may only provide support.

Government proposals include:

  • A ban on under 16 year-olds being placed in unregulated accommodation. This would help around 100 (2%) of the estimated 6,000+ children in care currently living in unregulated accommodation.
  • Standards for providers of unregulated accommodation. It appears these would be non-statutory, which is similar to current arrangements. Local authorities are already required to check that accommodation is suitable before a child is moved there.
  • Ensuring children get the right support from their independent reviewing officers (this is already in law).
  • Local authorities to make contact with police forces before they place a child in unregulated accommodation.
  • Ofsted to have new powers to make sure children’s homes are not being run illegally.

Article 39’s Director, Carolyne Willow, said:

“Today’s announcement does not deal with the fundamental issue that we have over 6,000 children in care in England who are presently, by law, not allowed to experience care. Ministers have so far only come up with a proposal to help 2% of these children. That’s just not good enough.

“It’s right that no under 16-year-old should be placed in unregulated accommodation, but 16 and 17 year-olds have the right to be cared for too. These are children in the care of the state, and many will be the subject of a care order – made by a family court because they have suffered (or are at risk of suffering) significant harm. It beggars belief that such children are deemed not to need care.”

“The Office for National Statistics reported at the end of last year that more than a quarter of adults aged 20-34 years still live with their parents. Yet here we have Ministers saying children in the care of the state can manage without care from the age of 16.”

UPDATE: Since this morning’s announcement, the Government has published research on the characteristics and circumstances of children in care who currently live in semi-supported accommodation (and those who live independently). These are all children who are not receiving any day-to-day care where they live. The research shows:

  • More than half of children in semi-supported (unregulated) accommodation are from black and minority ethnic communities;
  • Whereas 6% of all children in care are living in semi-supported accommodation, 36% of those in this setting are unaccompanied asylum seeking children;
  • 29% of children in semi-supported (unregulated) accommodation are the subject of a care order – meaning the local authority has parental responsibility for them.

In response to serious media revelations, particularly a BBC Newsnight investigation, Article 39 convened a national seminar with The Care Leavers’ Association and the National Association of Independent Reviewing Officers last month. We are now working on a proposal which will ensure all children in care receive care. This would involve modifications to children’s homes regulations, which would allow older teenagers to still receive care while their growing autonomy is nurtured and respected. Please contact us if you want to be involved.

Children in care in “other arrangements”

Newsnight programme, 20 May 2019

Serious concerns about children in care living in unsafe and unsuitable accommodation are growing after BBC Newsnight recently reported over 5,000 teenagers are living in unregulated accommodation – up 70% from a decade ago.

Several police forces were cited in the programme as having provided alarming evidence to a parliamentary group – of children in care being abused, exploited and criminalised through lack of effective care and safeguarding.

A statement from the Association of Directors of Children’s Services concluded:

We recognise the role unregulated provision can play within the care placement market and the flexibility it offers when linked to a clear plan based on the needs of a young person and a clear support plan. There is a distinction to be made between using it as part of a considered move compared with using it to deal with a crisis when no other accommodation is available. Total regulation would limit this flexibility so we are keen to see all providers take their responsibilities seriously and welcome increased expectations around standards and transparency as to how those will be delivered.

Care paradox

Having reviewed the legal framework surrounding unregulated accommodation, Article 39’s Director, Carolyne Willow, said:

Here we have a care paradox, whereby children are legally in the care of the state but placed by social workers in accommodation operating outside the law.

The contorted legal arrangements for placing children in unregulated accommodation show successive governments are aware of the risks and the dangers.

Teenagers’ growing independence is not a legitimate reason for relaxing safeguards. If a child is in care, they must be properly cared for – in settings which are registered, inspected and meet minimum standards. Children’s homes regulations include a particular requirement to prepare children for adult life – so it cannot be said that they are not intended to care for older teenagers. Indeed, the Children Act permits local authorities to place a child in a children’s home between the ages of 16 and 21 years.

Councils are at breaking point with lack of resources but these are children for whom councils are legally serving the function of parents and families. It can never be right for a child in the care of the state to be placed in a setting where they are abused and exploited, or in which they simply cannot possibly feel loved or looked after.

We support wider calls for a comprehensive review of the care system, conducted with care experienced people of all ages, to eliminate this and other practices which clearly work against what’s best for children. Meanwhile, intervention by independent reviewing officers will be essential for children not in safe or suitable accommodation today.”

Council legal duties

Councils are under a duty to provide accommodation to children in their care (Section 22A of the Children Act 1989).

Unless this would not be consistent with the child’s welfare, or it is not reasonably practicable, the Children Act requires that children in care are supported to live with a parent, a person with parental responsibility or a carer with whom a family court formerly said the child should live (through making a ‘residence order’).

When the above arrangements are not possible, local authorities must place a child in “the most appropriate placement available” from the following options:

– A relative, friend or other person who is a local authority foster parent
– A local authority foster parent who doesn’t fall into the above category
– A registered children’s home
– Other arrangements which comply with any regulations.

The Care Planning, Placement and Case Review (England) Regulations 2010 set out the factors (in Schedule 6 – below) to which councils are legally required to have regard in satisfying themselves that unregulated accommodation is “suitable”.

It is important to stress that other provisions in the Children Act apply, including the general duty to safeguard and promote the child’s welfare (Section 22(3)), and the duty to ascertain and give due consideration to the child’s wishes and feelings before making any decision with respect to them (Section 22(5).

Moreover, there must be a review of the child’s case before he or she is placed in “other arrangements” – unless the local authority considers it has to take this course of action to safeguard the child’s welfare as a matter of urgency (Section 22D). This means that the vast majority of decisions to use unregulated accommodation for children in care should be subject to independent scrutiny and challenge by an independent reviewing officer (IRO) – before the child is moved.

IROs and Cafcass – protecting children’s rights

IROs are empowered by Regulation 45(3) of the Care Planning Regulations to refer to Cafcass any cases where, in their opinion, a material breach of council duties has occurred.

Cafcass are, in turn, empowered to bring a Human Rights Act claim or initiate judicial review proceedings following a referral from an IRO (Regulation 3, The Children and Family Court Advisory and Support Service (Reviewed Case Referral) Regulations 2004). However, its Practice Note 2017 states IROs should not refer cases to it where a child has sufficient age and understanding and wishes to pursue legal action him or herself.

Freedom of Information Act request

Article 39 has today (29 May) submitted an FOI request to Cafcass to ascertain how well the IRO/Cafcass legal safety net is working for children. Once we obtain basic data, we will seek further information about the types of cases referred to the organisation by IROs, and what happens as a result.

Article 39’s preliminary FOI request to Cafcass, 29 May 2019

UPDATE: At the end of June 2019, we received data from Cafcass which shows:

– Just 20 referrals were made to Cafcass from independent reviewing officers in the 10 years between 2009/10 and 2018/19.

– Cafcass has not initiated any legal proceedings, including Human Rights Act claims, on behalf of a child in care following a referral from an independent reviewing officer.