A former secure children’s home provider has failed in a legal challenge against the Youth Justice Board tendering process that triggered the home’s closure.
London Secure Services Ltd, which ran Orchard Lodge in south London, failed in a judicial review against the process that resulted in the YJB’s decision not to renew its contract, along with those of three other SCHs.
A High Court judgement given this week also rejected challenges brought against the same tendering process by two young people who had been remanded to, respectively, Orchard Lodge and the Atkinson Unit in Devon, one of the other homes to lose its contract.
Four contracts not renewed
Following a tendering exercise, the YJB decided in March not to renew the four homes’ contracts, resulting in a reduction in the number of beds it commissions from SCHs from 219 to 191, and triggering Orchard Lodge’s closure in July.
Its decision left Swanwick Lodge in Southampton as the only SCH with a contract to place young offenders in London or the South East, and one of the key bases of LSS’s challenge was that it would leave vulnerable young offenders from the region placed far from home, contrary to YJB policy.
The YJB’s tendering process ranked SCH bids solely on the basis of service quality, which carried a 65% weighting, and cost, which carried a 35% weighting.
Geography not a factor
Geography was not a factor, though the YJB based its decision on how many beds to commission from successful bidders on historic demand for SCH and secure training centre beds in four “regional corridors”: the North, Midlands, South West and South East.
Though STCs were not part of the tendering process, the YJB treated STC and SCH beds as “interchangeable” on the basis that both types of institution are reserved for boys aged under 15, girls under 17 and vulnerable boys aged 15 or 16.
This meant the YJB took into account the availability of STC beds both nationally and in regional corridors in its SCH commissioning decisions, and two STCs – Medway in Kent and Oakhill in Milton Keynes – are based in the South East.
Decline in use of custody
The YJB’s decision to commission fewer SCH beds than previously was based on a decline in the use of custody for the SCH/STC client groups. The average number of 12- to 14-year-olds in custody was 190 in 2007-8 and 168 in 2008-9, while the average number of 15- and 16-year-olds placed in STCs or SCHs was 262 in 2007-8 and 242 in 2008-9.
Counsel for LSS Philippa Whipple claimed the YJB was wrong both not to rank SCH bids on the basis of geography and to treat STC and SCH beds as interchangeable, on the basis that SCHs are “small-scale, therapeutic environments” and STCs more like prisons.
However, the judge, Thayne Forbes, accepted YJB counsel Gemma White’s view that the regional corridors approach was a “perfectly rational way” to deal with geography.
Proximity still a factor in placements
He said that while the YJB formerly had a target to place children within 50 miles from home this was dropped by 2004, and in any event, proximity at home would continue to be one factor taken into account in placement decisions.
The judge also accepted the YJB’s view that STCs and SCHs could be seen as “broadly interchangeable” forms of accommodation, as relevant 12- to 16-year-olds sentenced by the courts or subject to court ordered secure remands can be placed in either.
However, he stressed that this did not mean that any particular child could be placed in either an STC or an SCH, with placement decisions being based on their needs.
Other challenges rejected
Other challenges brought by two young people – on ground of breach of their human rights, the YJB’s failure to consult or carry out equality impact assessments and a lack of transparency in the YJB’s placement policy – were also rejected.
Following the judgement, YJB chair Frances Done said: “[The] ruling supports our decision to commission 191 secure children’s homes beds in England and Wales in order to meet demand.
“The YJB is committed to the future of secure children’s homes as a means of providing quality secure accommodation. We will continue to work with all current providers to ensure safe and effective custody for the children and young people in their care.”
Howard League ‘disappointed’
Chris Callender, assistant director of the Howard League for Penal Reform, which supported the legal challenge, said, “I am disappointed at the decision not to renew the contracts of four secure children’s homes. Secure children’s homes are the only facility we have to manage the complex behaviour shown by vulnerable children.
“Reducing the number of SCH beds available means that more damaged children will be locked up under the punitive regimes of YOIs and STCs.”
Four secure children’s homes lose Youth Justice Board contracts