Instruments drawn to the special attention of the House
Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 (SI 2021/161)
Date laid: 19 February 2021
Parliamentary procedure: negative
This instrument prohibits the placement of looked after children under the age of 16 in independent and semi-independent settings which are not required to register with Ofsted, to ensure that they are instead placed in Ofsted-regulated children’s homes or foster care. Local authorities will have six months to find suitable placements for around 100 under 16-year-olds who are currently in unregulated settings. While the Children’s Commissioner for England and others have called for an outright ban on unregulated provision for all looked after children, the Department for Education maintains that there is a place for independent and semi-independent provision for older children. The Department has committed, however, to introduce national standards for such providers which are to be overseen by an Ofsted-led registration and inspection regime. Given the serious concerns raised by the Children’s Commissioner about unregulated settings, the vulnerability of looked after children at the age of 16 to 17 and the risk of low-quality provision as a consequence of the significant financial pressures on many local authorities, we urge the House to seek assurance from the Minister that any legislation needed to introduce the additional protections for older children to which the Government have committed is introduced at the earliest opportunity.
The instrument is drawn to the special attention of the House on the ground that it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House.
1.This instrument has been laid by the Department for Education (DfE) with an Explanatory Memorandum (EM). The instrument prohibits the placement of looked after children under the age of 16 in independent and semi-independent settings1 which are not required to register with Ofsted.
Background
2.According to DfE, there were 80,080 looked after children as of 31 March 2020, of whom 80% lived in settings regulated by Ofsted, such as foster care and children’s homes. Over the last few years, a growing number of children have been placed in so-called ‘other arrangements’ under section 22C(6)(d) of the Children Act 1989 (“the Act”): as of 31 March 2020, 6,490 (8%) children were placed in ‘other arrangements’, up from 5% as of 31 March 2015. The remaining 12% were placed for adoption, with parents and other residential settings including NHS settings, which are regulated by the Care Quality Commission (CQC), and youth custody.
3.DfE says that ‘other arrangements’ typically involve placements in independent and semi-independent settings that are not required to register with Ofsted. While these settings are sometimes referred to as ‘unregulated provision’ they may also include placements in alternative regulated settings such as residential schools or hospitals some of which may be regulated by the CQC rather than Ofsted. According to DfE, the vast majority of children placed in independent and semi-independent settings are aged 16 and 17 but there were around 100 children aged under 16 placed in such unregulated settings as of 31 March 2019. According to the Children’s Commissioner, 651 children in an unregulated placement during 2018/19 began their placement while under 16.2 There is a mix of voluntary and private providers of these unregulated settings, with the majority (73%) being privately run.3
Changes made by this instrument
4.DfE explains that placements in independent and semi-independent settings are intended to prepare young people to transition to adulthood ahead of leaving the care system only when they are ready to live with the level of independence that these settings afford. The Department says that such placements are not considered appropriate for children under 16. This instrument therefore prohibits the placement of looked after children under the age of 16 in these unregulated settings to ensure that they are placed in Ofsted-regulated children’s homes or foster care instead. DfE says that while this aims to deal with the growing number of under 16-year-olds in unregulated settings before this becomes a large-scale concern, it is not intended to create “an arbitrary point at which children and young people move into semi-independent or independent provision once they reach 16 years of age”. DfE emphasises that local authorities “must continue to make placement decisions based on meeting the individual needs of the child in line with their existing statutory duties”.
5.The instrument continues to allow placements in certain alternative regulated settings which qualify as ‘other arrangements’ by exemption. The exemption covers, for example, “residential establishments” which are the equivalent of children’s homes and foster placements provided by the Scottish Public Fostering Service. This is to ensure that cross-border placements can continue to happen where this is appropriate for the child. Fostering and children’s homes placements in Scotland are currently classified as ‘other arrangements’ and would be banned by this instrument without an exemption. The instrument also includes specific exemptions for other regulated settings, such as care homes, hospitals, residential family centres, residential schools (which are not registered as children’s homes) and residential holiday schemes for disabled children which are all currently classified as ‘other arrangements’.
6.In addition to these settings, the instrument provides a time limited exemption where an unaccompanied asylum-seeking child (UASC), whose age is not certain or documented, is claiming to be aged 16 or above at the time of placement. This is to allow local authorities to have the same placement options for an UASC who has a claimed age of 16 or 17 as for other looked after children who are 16 or 17. If the child is subsequently found to be under 16 following an age assessment, the instrument provides that local authorities have 10 working days to find a suitable alternative placement for the child following the completion of the age assessment.
7.The instrument will come into force on 9 September 2021, giving local authorities six months to find suitable alternative placements for those under 16-year olds who are currently in independent and semi-independent settings.
Concerns
8.DfE says that while more than 80% of respondents, including local authorities, supported the ban on placing looked after children under 16 in unregulated settings during consultation,4 some stakeholders called for the ban to be extended to all looked after children. The Department maintains that while placements in independent and semi-independent settings are:
“not suitable for children under the age of 16 and for many older children who may have more complex needs that would be better met in a children’s home or foster care placement, there is a place for independent and semi-independent provision where it is of high quality and such a placement is desired by the older child and would be consistent with their welfare”.
9.The Children’s Commissioner for England has called for a ban on unregulated provision for all looked after children,5 highlighting serious concerns, including about “the experiences of children in unregulated provision, with high proportions placed out of area, experiencing repeated placement moves and recorded as going missing” and a highly variable quality of accommodation. She concludes that: “No child under the age of 18 should be placed in an unregulated setting. All children aged under 18 should receive care, rather than support. As such, there should be a requirement that any setting they are placed in is regulated as a children’s home.”6
10.While the Department acknowledges these concerns, the EM refers at paragraph 7.11 to the Government’s commitment to introduce “national standards for unregulated settings that will ensure older children who are ready to live with the level of independence that these settings are able to afford, have access to safe and secure provision that meets their needs”. These standards are to be overseen by an Ofsted-led registration and inspection regime. DfE says that the national standards and Ofsted-led regime will be consulted on this year.7
11.The Government have also committed to give Ofsted powers to issue enforcement notices to settings which deliver care wholly or mainly for children but have not registered as children’s homes and are therefore operating illegally. While Ofsted will retain its powers to prosecute such settings, the intention is for the new enforcement powers to enable Ofsted to take much quicker action against illegal providers, as prosecution can take a long time, forcing them to close, register their service if appropriate, or face some form of penalty.
12.We welcome the Department’s commitment to introducing national standards for unregulated settings to be overseen by an Ofsted-led registration and inspection regime. This is particularly important as there is a risk of low-quality provision given the significant financial pressures on many local authorities and the considerable costs of high-quality support for children.
Conclusion
13.The Children’s Commissioner has raised serious concerns about unregulated settings. This instrument bans such settings for children under the age of 16, but not for 16 to 17-year-olds, who, despite being older, remain highly vulnerable. We are particularly concerned about the risk of low-quality provision as a result of the significant financial pressures on many local authorities. We therefore urge the House to seek assurance from the Minister that any legislation needed to introduce the additional protections for older children to which the Government have committed, is introduced at the earliest opportunity. The instrument is drawn to the special attention of the House on the ground that it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House.
1 Semi-independent settings include for example, hostels, lodgings, flats and bedsits where supervisory staff or advice workers are specifically employed and available to provide advice and support to the residents but do not have to live on the premises. Independent settings may be flats, lodgings, bedsits, B&Bs or with friends where a young person is living independently. Visiting support may be included as part of the package but no formal support structure is provided as part of the accommodation.
2 Children’s Commissioner for England, Unregulated — Children in care living in semi-independent accommodation, Children’s Commissioner for England (September 2020): https://www.childrenscommissioner.gov.uk/wp-content/uploads/2020/09/cco-unregulated-children-in-care-living-in-semi-independent-accommodation.pdf [accessed 25 February 2021].
3 Ibid.
4 DfE, Reforms to unregulated provision for children in care and care leavers, Government consultation response (February 2021): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/962686/Unregulated_government_response_Final.pdf [accessed 25 February 2021].
5 Unregulated — Children in care living in semi-independent accommodation, Children’s Commissioner for England: https://www.childrenscommissioner.gov.uk/wp-content/uploads/2020/09/cco-unregulated-children-in-care-living-in-semi-independent-accommodation.pdf
6 Ibid.
7 DfE, Reforms to unregulated provision for children in care and care leavers, Government consultation response (February 2021): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/962686/Unregulated_government_response_Final.pdf [accessed 25 February 2021].