As a part of the government’s response to the consultation into ‘Reforms to unregulated provision for children in care and care leavers’, the Department for Education (DfE) have announced plans to ban placing vulnerable children under the age of 16 in unregulated accommodation. The ban is expected to come into force from September 2021.
What is the current position?
Under the Care Standards Act 2000, organisations are required to register an establishment that meets the definition of a ‘children’s home’. An establishment is a children’s home if it provides ‘care and accommodation wholly or mainly for children’ and any such establishment is required to register with Ofsted. A failure to register is a criminal offence and Ofsted have powers to investigate and prosecute organisations who are suspected of carrying on a children’s home without registration.
The definition of a children’s home may seem relatively straight forward. However, the distinction between establishments who provide ‘care and accommodation’ and those who just provide ‘accommodation’ results in establishments potentially falling into one of two categories; regulated and unregulated. It’s important to note that an establishment can, at present, legally provide an ‘unregulated’ type of provision and are not required to register with Ofsted, but there are often a number of grey areas that make it difficult to establish whether a provision should be registered and whether they are therefore operating illegally. This grey area normally comes down to whether an organisation is deemed as solely providing ‘supported accommodation’, or whether the service they provide could also be classed as ‘care’, which would require them to register.
Ofsted’s guidance, namely the “Introduction to Children’s Homes”, provides a more broad set of legal requirements to establish whether a setting is required to register as a children’s home. The guidance itself acknowledges that some establishments and types of accommodation will be ‘unregulated settings’. In situations where a child is to be placed in an unregulated setting, Ofsted’s guidance makes clear that it is the placing authorities’ responsibility to ensure that the setting is suitable for the child or young person.
An example of circumstances when a child may be placed in an unregulated setting is where a current placement breaks down and the placing authority needs to find an emergency placement, whilst they look for a long term placement that meets a child’s needs. Currently, Local Authorities are facing numerous pressures, one of which is a lack of places in children’s homes. This can often make it difficult to find emergency placements in regulated settings, certainly at short notice. In these circumstances, a child or young person may be placed in a ‘supported living’ setting, which is not required to be registered with Ofsted.
In the year 2018-19 there were 660 looked after children placed in independent or in semi-independent living accommodation who were under the age of 16 when the placement started; this equates to 5% of looked after children in these settings during the same year. Ofsted acknowledge there are simply not enough places in children’s homes at present and have committed to focusing on registering children’s homes as a priority. They have also introduced a temporary fast-track application route for emergency circumstances as a result of the COVID-19 pandemic.
What are the proposed changes?
From September, the DfE has announced that children in care under 16 will no longer be allowed to be accommodated in unregulated independent or semi-independent placements. The DfE acknowledged that whilst these types of placements can be the right option for some older children, as they are intended to facilitate supported living to develop independence, they consider that children aged under 16 are too young for this type of accommodation. The effect of the ban is that local authorities must place looked after children who are under the age of 16 in either foster care or a children’s home that is registered with Ofsted. The delay of introducing the ban is to allow local authorities time to respond to the changes and to make alternative arrangements. It also provides a grace period for organisations who may be operating unregulated settings, to give them time to apply for registration if they have placements of children under 16, or to work with placing authorities to find suitable alternative arrangements for those children.
The DfE have announced that in addition to the ban, they will be providing support to local authorities to create more places in children’s homes, including further financial investment, and will focus their support on local authorities that have the highest rates of children placed in unregulated settings. The DfE also announced that they intend to legislate to give more powers to Ofsted to take enforcement action against unregistered providers. The DfE suggest that these powers will enable Ofsted to force illegal providers to close quickly, register their service if appropriate, or face some form of penalty.
It is clear from the consultation response that there is widespread support for ensuring that children under 16 are placed in settings that are registered and therefore regulated. However, if the ban is to have a positive effect on children’s social care, it must be supported with the additional measures identified by the DfE as a part of their consultation; most importantly a quick and effective focus on increasing children’s homes and places available to looked after children. This is required in order to ensure that local authorities have options and the ability to place all children in regulated settings. The consequences of failing to ensure there are sufficient places will put local authorities in a far more difficult position than they face currently.
It’s vital that any organisations offering an unregulated service, with placements provided to children under 16, ensure that they are fully compliant with the changes by September. Although the ban does not extend to young people over 16, new guidance is to be issued by Ofsted about standards for these types of services and therefore providers must be aware of these changes and work to ensure compliance also. These organisations have been the centre of Ofsted’s focus in children’s social care for some time now and with the changes set to strengthen Ofsted’s powers, there will no doubt be an increase in enforcement action and prosecutions where providers are suspected of falling foul of the regulations.
How can our Ofsted lawyers help?
It is vital that organisations consider carefully the types of services they are providing to children and young people and if in doubt, seek specialist legal advice as to whether they are required to be registered. If you find yourself subject to enforcement action or a criminal investigation by Ofsted due to concerns that you are operating an unregistered children’s home, you should seek specialist legal advice as soon as possible in order to protect your interests.