High Court dismisses claim that failure to ban unregulated placements for 16- and 17-year-olds was unlawful

The High Court has dismissed a children’s rights charity’s claim that the government’s failure to ban unregulated placements for children in care aged 16 or 17 was unlawful.

Article 39 brought the challenge against the Department for Education last year after arguing that a ban on unregulated accommodation for under-16s, introduced last September, wrongly excluded 16- and 17-year-olds and left them exposed to harm.

But this week the court ruled that the government had been entitled to decide that placements in settings such as hostels, shared houses, flats and bedsits, rather than children’s homes or foster care, were suitable for some older children and that there was no legal basis for the court to intervene.

The court also ruled that the government had not unlawfully failed to consult on extending the ban to 16- and 17-year-olds or wrongly failed to consider responses to its consultation on barring unregulated placements for under-16s.

And the court dismissed the charity’s claim that the government had breached the public sector equality duty (PSED), under the Equality Act 2010, by failing to consider whether extending the ban to 16- and 17-year olds would advance equality of opportunity.

The court said the duty did not apply as the government had not proposed the ban on placements for 16- and 17-year-olds.

Article 39 said it would appeal the judgment.

No irrationality in age distinction

The ruling substantially focused on Article 39’s claim that the DfE had irrationally and without evidence discriminated between children aged over and under 16.

Giving judgment, Mr Justice Holgate rejected Article 39’s view that an unregulated placement – because it was not required to provide “care” – was legally incompatible with meeting the care needs of any 16- or 17-year-old looked-after child, as such needs could be provided externally to the placement.

He judged that there was no basis to conclude that the DfE drew an irrational distinction between under and over-16s and pointed out that the relevant regulations did not require councils to place children aged over 16 in unregulated placements; rather, this could only happen if the council assessed the placement was suitable for the individual child.

“The questions is: would the legislation inevitably operate unlawfully in the case of all, or substantially all, 16- or 17-year-old children […] It is difficult to bring such a challenge when the regulations the claimant seeks to impugn can only be applied through individual assessment of each 16- or 17-year-old child by the relevant local authority,” Mr Justice Holgate said.

DfE had ‘ample evidence’ for decision

The judge also rejected the claim that the DfE’s decision was based on insufficient evidence, saying the then education secretary, Gavin Williamson, had been presented with “ample evidence” to draw the age distinction.

This included briefings from officials that independent or semi-independent accommodation could be suitable for over-16s, as part of a planned transition to adulthood, so long as the accommodation was suitable. He also received briefings that measures were needed to assure the quality of placements, leading to the government’s decision to introduce national standards for these placements from next year, assessed by Ofsted at a provider level, not by setting.

Consultation process adequate

Mr Justice Holgate said the DfE “was under no obligation” to seek views on extending the ban to 16- and 17-year-olds, as Article 39 had claimed. The consultation made it clear that the DfE intended to maintain the status quo for this age group and it was open to consultees to argue that the ban should be extended, as many did, the judge said.

He also dismissed the charity’s argument that the government failed to properly consider responses to the consultation before finalising its statutory proposals.

Article 39 had said some detailed comments from young people about their experiences of living in unregulated accommodation had not been included in a briefing to ministers nor the document summarising consultation responses.

The judge said that it was “plain on any fair reading of the material which led up to the making of the 2021 regulations, that ministers were fully aware of this issue and were seeking to address it, for example, by proposals for national standards and the involvement of Ofsted”.

He added: “Undoubtedly, some young persons pointed to the problems they had experienced with unregulated accommodation. But plainly what weighed with the secretary of state were the benefits for some young people of being appropriately provided with high quality independent and semi-independent placements. The issue for the secretary of state was whether to introduce a blanket ban on unregulated placements for all 16- or 17-year-olds rather than tackle the problems of inappropriate placements in other ways suggested in the consultation paper and the documents relevant to the decision-making process.”

‘Judgment means two-tier system will remain’

Carolyne Willow, Article 39’s director, said the High Court’s “upsetting” judgment meant local authorities would continue to place 16- and 17-year-old children in “wholly unsuitable accommodation”.

“Instead of protecting all children, [the government] decided to create a two-tier system where children in care aged 15 and under will always be cared for where they live, and those aged 16 and 17 can go without care in their home,” she said.

Willow said it was insufficient for ministers to leave it to local authorities to assess whether to place each 16- and 17-year-old in an unregulated setting based on their needs.

“That was the legal position before ministers took remedial safeguarding action for younger children but not for those aged 16 and 17,” she said.

“The government has removed discretion from local authorities in respect of children aged 15 and younger, strongly implying they don’t trust councils to make the right decisions for this cohort of children.”

‘Cruel, callous judgment’

British Association of Social Workers (BASW) England professional officer Rebekah Pierre, who has personal experience living in unregulated accommodation as a teenager, said it was “a cruel, callous judgment in which the best interests of children are entirely absent”

“I am devastated. My experience of living in a care-less setting at 16 and 17 was more damaging than I can describe,” she said.

“Children in care have often been traumatised and deserve the very best society can afford them, not the least – which in this case is institutionalised neglect, a lack of care and compassion, and risk of significant harm.”

A Department for Education spokesperson said: “We welcome this decision which notes that the department has acted fairly and lawfully. At every step of our reforms, we have prioritised the safety and wellbeing of these vulnerable young people, who deserve to live in a setting that meets their needs and keeps them safe. Councils have a duty to make sure this is the case for all children in their care.

“We have already banned the placement of under-16s in unregulated provision and are introducing mandatory national standards and provider-level Ofsted inspection of these placements. The independent review of children’s social care will also address growing pressures in the care system.”