A High Court judge has rejected a claim that the Secretary of State for Education irrationally discriminated against children in care aged 16 and 17 by making secondary legislation which only bans local authorities from placing children aged 15 and under in unregulated accommodation.
In Article 39, R (On the Application Of) v Secretary of State for Education  EWHC 589 (Admin) the claimant, a charity which seeks to promote and protect the rights of children living in institutions, put forward a number of grounds of challenge including that:
- By definition, a child who is looked after under the Children Act 1989 (CA 1989) is in need of care and care must be provided in the home where they live. Care in the CA 1989 and in the CSA 2000 have the same meanings. One consequence of the requirement to provide care in situ is that children who do not live with a parent or foster parent cannot be placed in an unregulated setting. They must be placed in a children's home or in one of the regulated facilities. (Ground 1a – there was a dispute over whether this ground had formed part of the claimant’s case but the judge decided to express his reasoning on the submissions initially made for the claimant).
- The difference in treatment in Regulation 27A of The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 between children above and below the age of 16 was based on no evidence and was irrational. (Ground 1b)
- The Secretary of State failed to comply with the public sector equality duty ("PSED") in s.149 of the Equality Act 2010 in that he failed to consider whether equality of opportunity would be advanced by extending the ban in the 2021 Regulations on placements in unregulated accommodation to 16 and 17 year old children. (Ground 2)
- The consultation carried out by the defendant was unfair and unlawful because the defendant failed to consult on an option which had been discarded, namely banning placements in unregulated accommodation for children aged 16 or 17 as well as those aged under 16. (Ground 3a)
- The Secretary of State failed to consider conscientiously the views of children and young people expressed in the consultation exercise. (Ground 3b)
Under the 2021 Regulations, which came into force from September 2021, local authorities are banned from placing children aged 15 or under in properties which are unregulated.
The Secretary of State considered that placements in unregulated accommodation are suitable for some 16 or 17 year olds moving towards independence, subject to individual assessment of their needs.
In order to address problems identified with some placements in unregulated accommodation, the Secretary of State decided (1) to introduce a registration and inspection regime based on new national standards and (2) to remind local authorities that the use of unregulated accommodation is subject to their statutory obligations to place a child in the placement which is the most appropriate placement available and suitable to meet the needs of that child.
In relation to ground 1a, Mr Justice Holgate found that the CA 1989 does not contain any provision which requires all care to be provided in situ or as part of a placement.
He added: “On the evidence before the court it is plain that some looked after children aged 16 or 17 are assessed as being suitable for a very independent level of living and are therefore placed in a shared home with care in the form of external, rather than in situ, support. For example, a child might be assessed as not requiring any assistance from the person responsible for the shared house in organising the child’s use of educational, training or medical facilities provided for in the care plan.
“That accommodation would fall within s.22C(6)(d), and regulation 27 of [The Care Planning, Placement and Case Review (England) Regulations 2010]. It would be an example of a currently unregulated placement which is intra vires the CA 1989 scheme.”
In relation to ground 1b (decision was based on no evidence; irrationality), the judge found:
- It was untenable to suggest that an unregulated placement was legally incompatible with meeting the care needs of any 16 or 17 year old child. [judge’s emphasis]
- He could see no basis for the court to conclude that it was irrational for the Secretary of State to draw the distinction contained in the 2021 Regulations. “The first judgment which has been made is that unregulated accommodation is unsuitable for all children under 16. The claimant does not disagree with that judgment. The second judgment is that there are some children aged 16 and over for whom a semi-independent or independent placement is the most appropriate solution. Unless that judgment can be impugned on public law grounds I do not see how it can be irrational to draw a distinction in the legislative scheme which allows effect to be given to that judgment following assessment in each individual case in accordance with the CA 1989.”
- There was ample evidence before the Secretary of State to justify the distinction drawn in the 2010 Regulations, as amended by the 2021 Regulations, between children above and below 16 in relation to placements under s.22C(6)(d) of the CA 1989.
- One of the factors upon which the Secretary of State was entitled to rely was the wishes expressed by some young persons to be placed in unregulated accommodation. “Of course, the extent to which weight is given to such wishes is subject to the authority's individual assessment of each child. But this aspect is supported by the increasing autonomy which may be accorded to an individual child aged 16 or 17 as they move towards adulthood. This consideration is recognised by the specific provisions which Parliament has enacted for 16 and 17 year old children…”
- The Secretary of State had provided an adequate justification for his judgment from a public law perspective.
On ground 2 (PSED), Mr Justice Holgate said it was common ground that the assessments carried out for the purposes of s.149 of the Equality Act 2010, did not consider extending a ban on the use of unregulated accommodation to 16 and 17-year-old children. It was also common ground that that did not form part of the Secretary of State's proposal.
The claimant submitted that no consideration was given to that extension as a means of advancing equality of opportunity in relation to gender and race. However the judge said he accepted the defendant’s submission that s.149 did not require that exercise to be carried out in relation to a matter which fell outside the decision-maker's proposal.
On ground 3a (unfair consultation), Mr Justice Holgate said it was clear that the Secretary of State was under no obligation in the circumstances of the consultation exercise to seek views specifically on extending the proposed prohibition of unregulated placements to 16 and 17 year old children.
“The consultation document plainly stated that the Government proposed to maintain the status quo in relation to those children. It should have been obvious to consultees who did not think that the proposed prohibition went far enough that they could say so. Indeed, many organisations and individuals, including children, did make responses on the position of 16 and 17 year olds,” the judge said.
He added that “viewed overall”, this aspect of the consultation could not be said to have been unfair.
In rejecting ground 3b, Mr Justice Holgate said the analysis by officials was appropriate and, where relevant, supported by an independent report.
The judge noted evidence from Carolyne Willow, Director of Article 39, as to some detailed comments from young persons which did not find their way into the briefing to ministers or the Consultation Response document.
“Very troubling examples were put forward of inappropriate placements in unregulated settings and of sexual exploitation and abuse,” the judge said.
“They were referred to in a summary document prepared by officials. Whilst it is true that no mention is made of specific incidents of this kind in the briefing to ministers or in the Consultation Response, it is 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 that it could not be said that merely because the Secretary of State did not receive the summary document before he decided to make the 2021 Regulations, he failed to comply with the fourth "Gunning" requirement (the product of the consultation must be conscientiously taken into account in finalising any statutory proposals).
Mr Justice Holgate refused Article 39’s application for permission to appeal, but the charity has said it intends to renew this application in the Court of Appeal.
Carolyne Willow, Article 39’s Director, said: “This is a very upsetting judgment because of the profound implications for children in care. There is no question that children will continue to be placed in wholly unsuitable accommodation. Ministers were pushed into taking action because of mounting evidence of the harms suffered by children in care living in properties which bypass ordinary care standards.
“Instead of protecting all children, they 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. One in three children in care aged 16 and 17 already lives in care-less properties. The secondary legislation is bound to increase that proportion since the brake on councils putting children into these places is lifted as soon as a child reaches 16.”
Ms Willow added: “It’s no good ministers saying that local authorities will undertake careful assessments of each individual child, and only place 16 and 17 year-olds in settings without care and supervision when they can cope with this and the accommodation is of sufficient high quality. That was the legal position before ministers took remedial safeguarding action for younger children but not for those aged 16 and 17.
“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.”
Oliver Studdert, a public law and human rights lawyer at Irwin Mitchell representing Article 39, said after the hearing: ”This is an incredibly sensitive area which affects thousands of vulnerable 16 and 17 year-olds. My client is very disappointed by this judgment and remains of the firm view that the decision not to extend the ban on unregulated accommodation to 16 and 17 year-olds was unlawful. This is an extremely important issue and we will be seeking permission to appeal to the Court of Appeal.”