Most children in care in England live with foster carers (57,020 children on 31 March 2023; 68% of all children in care).
Nearly 1 in 10 lives in a children’s home (7,780 children on 31 March 2023).
In both foster care and children’s homes, children of all ages receive care and supervision within a homely environment. But under new secondary legislation, bedsits, hostels, shared houses with adult strangers and even caravans can now be part of an Ofsted-registered ‘supported accommodation service’ for 16- and 17-year-olds who are in care, or who have left care. Latest official statistics show that 8,980 children were living in supported accommodation on 31 March 2023 (then unregulated and described as ‘semi-independent living’ and ‘living independently’) – 41% of 16- and 17-year-olds in care.
From Saturday 28 October 2023, it is unlawful for local authorities to accommodate a child aged 16 or 17 in premises which are part of a supported accommodation service if the owner/provider has not applied for Ofsted registration. Although the registration process does not have to be completed by this date, Ofsted must have received all of the paperwork and the registration fee by 27 October 2023. This means that, for a significant period of time, 16- and 17-year-olds will still be accommodated in settings that have not had any form of inspection or regulatory oversight.
In 2021, the government decided that children in care aged 15 and under must always live in accommodation where they receive care.
In a foreword to an official document setting out government plans, the Education Secretary at the time, Gavin Williamson, said:
“I cannot imagine a circumstance in which a child under the age of 16 should be placed in a setting that does not provide care, and is intended to support young people to live independently”.
Through secondary legislation, government changed the law to prohibit local authorities from accommodating children in care aged 15 and under in settings that were not regulated, and that did not provide care and consistent supervision. That legal change came into effect on 9 September 2021.
Article 39 legally challenged this 2021 change to the law on the grounds that 16- and 17-year-olds were not protected. We were bitterly disappointed that the High Court held it was lawful for government to introduce secondary legislation which distinguishes where children in care may live on the basis of their age. We were very grateful to the three young people and a foster carer, as well as to Mind, the Refugee and Migrant Children’s Consortium and the Together Trust, who each provided witness statements in support of our case. We also provided the court with extensive other evidence of the harms suffered by 16- and 17-year-olds living in unregulated accommodation. The High Court’s judgment refers to receiving “very troubling examples … of inappropriate placements in unregulated settings and of sexual exploitation and abuse”.
New statutory standards for supported accommodation deliberately omit any requirement to provide care to children who live there.
This is to distinguish them from children’s homes.
The law defines an establishment that provides care and accommodation wholly or mainly for children as a children’s home. If a child is receiving care, the owner/provider must register their establishment as a children’s home with Ofsted. They must meet the children’s homes’ standards and have other safeguards in place for children living there, which are set out in secondary legislation.
For several years, Ofsted guidance explained key differences between ‘care’ and ‘support’. This guidance is no longer published. However, in a recent podcast a senior Ofsted inspector set out some differences between children’s homes and supported accommodation:
“[Children are] looked after by staffing within the home, they’re cared for, they’re parented – if you like – by staff in the home”.
“[Children] are supported, and they’re supported on their journey to independence. So they may not have staff there 24/7. They may not have staff to handle the time, but actually they know who to contact in an emergency they are supported to proceed into college or an apprenticeship”.
In 2020, the Department for Education stated it intended to amend legislation to clearly define care. This proposal was supported by 84% of respondents to a consultation. The Department for Education then decided that the secondary legislation and guidance for children’s homes and for supported accommodation provide this clarity, so no legal change was required.
Children’s homes secondary legislation contains a ‘quality and purpose of care’ standard which includes the following requirements
- That the registered person ensures that staff protect and promote each child’s welfare.
- That the registered person ensures that staff treat each child with dignity and respect.
- That the registered person ensures that staff provide personalised care that meets each child’s needs, as recorded in the child’s relevant plans, taking account of the child’s background.
There is no ‘quality and purpose of care’ standard for supported accommodation.
Decisions about where individual children should live are made by their local authority. The Children Act 1989 and associated secondary legislation places a number of legal duties on local authorities when they are making decisions about where a child they are looking after lives. For example:
- The local authority must safeguard and promote the child’s welfare. This includes a specific duty to promote the child’s educational achievement.
- Before making any decision about the child, the local authority must ascertain and give due consideration to the child’s wishes and feelings.
- Before making any decision about the child, the local authority must ascertain and give due consideration to their parents’ wishes and feelings.
- Unless it is not consistent with the child’s welfare or reasonably practicable, the local authority must make arrangements for the child to live with their parent, someone else with parental responsibility or with someone who has a child arrangements order.
- If the above arrangements are not possible, the local authority must accommodate the child in “the most appropriate placement available” from the following: with a foster parent who is a family member or other person connected to the child; with another foster parent; in a children’s home; or in ‘other arrangements’.
- ‘Other arrangements’ made by the local authority must always be suitable for the individual child. Supported accommodation falls into ‘other arrangements’ for children in care aged 16 and 17; this is not a permitted placement for those aged 15 and under.
- As far as reasonably practicable, the local authority must choose a place which allows the child to live near their home.
- As far as reasonably practicable, the local authority must choose a place which does not disrupt the child’s education or training.
- If brothers and sisters are in care, the local authority must, as far as reasonably practicable, choose a place where they can live together.
- If the child is disabled, the local authority must, as far as reasonably practicable, choose accommodation suitable to the child’s needs.
Statutory guidance states the aim of supported accommodation as being to support children to “develop their independence”:
Statutory guidance for supported accommodation, 2023
Looked after children and care leavers are often some of the most vulnerable children and young people in society, and we must work together to do all that we can to ensure that they have access to suitable accommodation that can meet their needs and keep them safe. For most children who are not yet ready for greater levels of independence, and especially those who require increased care due to high needs, or who have additional needs, this is best achieved through a placement in foster care or a children’s home, for which there are already robust approaches to approving, registering and quality-assuring provision. However, for some young people aged 16 or 17, living in supported accommodation can be the best option to meet their needs, with the aim of supporting them to develop their independence as they approach adulthood, ahead of leaving the care system. [Emphasis added]
Children’s homes can accommodate children up to and beyond their 18th birthday.
Most children who live in children’s homes are teenagers. Ofsted found that the average age of children living in children’s homes is 14.6 years. The average age for children starting to live in children’s homes is 12.9 years.
The ‘quality and purpose of care’ standard for children’s homes requires care staff to “help each child to develop resilience and skills that prepare the child to return home, to live in a new placement or to live independently as an adult”.
The ‘care planning’ standard for children’s homes requires that arrangements are in place “to plan for, and help, each child to prepare to leave the home or to move into adult care in a way that is consistent with arrangements agreed with the child’s placing authority”.
Statutory guidance for children’s homes is clear that children’s homes must help prepare children for their future adult lives:
Statutory guidance for children’s homes, 2015
The design of the home should, where appropriate, enable children to develop independence skills within the supportive environment of the home, including through encouraging independent use of kitchen and laundry areas.
Staff must help each child to prepare for any moves from the home, whether they are returning home, moving to another placement or adult care, or to live independently. This includes supporting the child to develop emotional and mental resilience to cope without the home’s support and, where the child is moving to live independently, practical skills such as cooking, housework, budgeting and personal self-care. [Emphasis added]
Yes. Below we highlight some of the most significant differences in secondary legislation, statutory guidance and Ofsted policy (or plans) for each.
|Children’s homes||Supported accommodation service|
|The registered manager of a children’s home must have worked, within the past five years, in a position relevant to the residential care of children for at least two years.||The registered service manager must have worked, within the past five years, in a position relevant to the residential support of children or adults for at least two years.|
|Children’s homes must employ staff and a manager who have, or are working towards, a qualification in residential childcare (or an equivalent qualification).||There are no specific qualification requirements for supported accommodation services.|
|Children’s homes legislation includes a list of prohibited measures of control of discipline. These have evolved over decades in response to abuse scandals. They include, for example, a ban on corporal punishment and punishment involving the deprivation of food or drink, withholding aids and equipment from disabled children, and collective punishment.||The law relating to supported accommodation contains no list of prohibited measures of control or discipline.|
|Owners/managers of children’s homes must arrange for an independent person to visit their home at least once a month to check, among other things, that children are protected and the home promotes their well-being. |
Reports from these monthly visits must be sent to local authorities and Ofsted.
|There is no requirement on supported accommodation services to have an independent person check the safety of children living in their premises.|
|Those who own/manage children’s homes must ensure each child receives appropriate advocacy support.||Like children’s homes, supported accommodation services must produce a children’s guide which includes information about advocacy services. |
Supported accommodation services are required to have arrangements in place to encourage and enable children to access services, including from advocacy organisations. However, there is no duty to ensure individual children receive appropriate advocacy support.
|Those who own/manage children’s homes must consult their local fire and rescue authority before putting in place fire precautions. |
At least one member of staff on duty must have a suitable first aid qualification.
|Although owners/managers of supported accommodation services are required to meet their legal duties in respect of fire safety, and health and safety, there is no legal requirement to consult their local fire and rescue authority, or to have a first aid-qualified member of staff on duty.|
|Until recently, every children’s home had to be registered separately with Ofsted. Now a provider can register up to 4 buildings together, with a maximum of 6 children living across these 4 buildings.||There is no limit to how many premises a supported accommodation service can include in a single Ofsted registration. Or how many children the service can accommodate. There is also no limit to what kind of ‘premises’ they are – government guidance states ‘mobile or non-permanent settings’ such as caravans and boats can be part of a supported accommodation service in exceptional circumstances. It appears that tents can also be part of a supported accommodation service.|
|Every children’s home is inspected at least once a year; twice within 12-15 months if they have been previously judged as ‘less than good’ by Ofsted. |
In the case of a multi-building children’s home (where there are 4 buildings), Ofsted inspectors visit each building during every inspection.
|A supported accommodation service will be inspected at least once every three years – and then only a sample of its premises will be visited. The reality is that the majority of children living in supported accommodation will never see an inspector.|
|All Ofsted inspections of children’s homes are unannounced.||Ofsted proposes to give supported accommodation services two working days’ notice of inspections.|
There are four legal categories of supported accommodation. Providers can register their service with Ofsted as including one or more of these categories. (It will be unlawful for providers to operate categories of supported accommodation for which they haven’t been registered with Ofsted). The four categories are:
- A child in care lives in a self-contained unit with no other children. The accommodation is for the sole use of the child or for the child and other individuals living with the child as agreed by the local authority looking after the child, or those who own/run the accommodation.
- A child in care lives with other children in care or with care leavers (no upper age limit of the care leavers is specified in the legislation).
- A child in care lives in accommodation with other children who are not in care or with adults who are not care leavers (no upper age limit of the adults is specified in the legislation).
- A child in care lives in an individual’s home (this is not a fostering arrangement).
Not in every case.
Ofsted’s guidance for those seeking to register a supported accommodation service describes the final (stage 3) part of the registration process. This states that Ofsted will “visit one or more” of the premises before determining whether to grant an application. (Stage 2 involves DBS and local authority checks of those with positions of responsibility within the service, as well as references).
Stage 3: Site visit, interview and decision
This stage involves a site visit and interviews with relevant people. We aim to carry out a site visit to your office within 40 working days of your application moving to stage 3. We will contact you within this time to arrange the visit. We will tell you if we cannot visit within 40 days.
At the site visit, we will need to see evidence that your premises meet the required standards.
We will also visit one or more of your premises. If you are offering accommodation provided by an individual or individuals in a private residence (such as supported lodgings), we will ask to visit or speak to some of your supported lodgings ‘hosts’.
We may hold the interviews in a different location to the site visit. These could be at an Ofsted office, another office of yours, or a pre-booked external venue.
We will aim to tell you if we have granted or refused your application within 7 working days of the visit. [Emphasis added]
Ofsted surveyed supported accommodation providers in October 2022. It received responses from those accommodating around 70% of children living in these types of premises. Ofsted found:
- 400 providers had around 4,200 different premises – that’s an average of at least 10 premises each.
- 5 providers had over 100 premises each.
- Over 60% of providers had 5 or fewer premises.
- Over a third of providers had 1 or 2 premises.
- The most common category of accommodation was ‘single occupancy’ (over 40%) where a child lives alone.
- Nearly a third (30%) was shared or group accommodation specifically for 16- and 17-year-olds and care leavers.
Government data shows that the vast majority of supported accommodation – between 79% and 85% – for looked after children is run for profit. The Competition and Markets Authority found it to be the most profitable within the children’s care system, with the 15 largest providers of children’s homes and fostering services enjoying the following profit margins in 2020:
- 35.5% for unregulated (now supported) accommodation, with £330 profit per child per week.
- 22.6% for children’s homes, with £910 profit per child per week.
- 19.4% for fostering agencies, with £159 profit per child per week.
Recent research for the County Councils Network and the London Innovation and Improvement Alliance found that 93% of owners/providers intending to register their supported accommodation service with Ofsted planned to increase their prices to local authorities. Local authorities told researchers that they expect price increases of between 15-30% across the next three years.
More than a quarter of the children (26-29%) who live in supported accommodation are the subject of a care order, which means their local authority has parental responsibility for them.
Nearly 1 in 10 children (7-8%) living in care-less accommodation is officially recorded as having a disability.
Unaccompanied children who have made perilous journeys to the UK on small boats or via other dangerous routes are disproportionately accommodated in these kinds of premises.
At least 34 children died while living in supported accommodation in the six years to March 2022. One of these was a 20-month-old infant, Asiah Kudi, whose teenage mother (who had formerly been in care) left her alone in a flat in a supported accommodation complex for six days. The organisation running the complex, and being paid by a local authority to accommodate both children, was unaware that Asiah was left alone on their premises; she died of starvation and influenza (safeguarding review here).
A review for the Child Safeguarding Practice Review Panel, obtained by Article 39 following a successful legal challenge, found that teenagers who died or suffered serious harm in care while living in supported accommodation were often there because local authorities had nowhere else for them to live.
Up to half of the teenagers in care living in supported accommodation go there within less than a week of entering care. It is highly likely that the care system failed to provide any actual day-to-day care for these children.
The regulation of supported accommodation is presented by government as a success story. It is not:
– Children are still not provided care where they live.
– There is no requirement for children to have someone on-site 24 hours a day.
– The government has, for the first time, made premises where children live alongside adult strangers an official, regulated ‘care’ placement.
– New official terminology has entered the children’s care system – ‘mobile or non-permanent settings’ – to sanction the so-called exceptional use of caravans, boats and even tents.
– The registered manager of a supported accommodation service is not required to have any prior experience of working with children.
– Inspection arrangements are substantially weaker than for children’s homes. The vast majority of children will never see an inspector.
– The whole policy perpetuates a dangerous myth that 16 is an acceptable age for a child in care to live in an environment without care and consistent adult supervision. This is damaging to children in care aged 16 and 17, and it builds fear and insecurity into the care system for children below this age.
– Outside the children’s care system, families care for children across the whole of their childhood and beyond. Most people in their early 20s still live with their parents.
TAKE ACTION AND FURTHER READING
Show you care: write to your MP
What does care mean to 16 and 17 year-olds? Summary research findings (January 2023)
Article 39’s response to Ofsted’s consultation on inspection arrangements (September 2023)