Put end to unregulated provision for under-18s, urge campaigners

As a Department for Education consultation into reforms to unregulated supported accommodation for children in care comes to a close, controversy surrounds plans to ban its use for under-16s only instead of all under-18s as campaigners want. In addition, the role of an “expert” working group tasked with drafting quality standards for settings has been questioned.

According to the consultation document, 6,180 children were living in independent and semi-independent accommodation not subject to children’s home regulations on 31 March 2019. This figure has increased year on year since the same date in 2015 when numbers stood at 1,240.

Providing support for under-16s without being registered with the inspectorate is not illegal, but if care is provided this could be an offence.

When launching the consultation, Education Secretary Gavin Williamson made clear that this practice would be stopped under the proposals – last year, around 100 children lived in independent and semi-independent accommodation.

He said the aim of the reforms is “to ensure that children and young people placed in independent and semi-independent settings are receiving the support they need”.

Yet numerous reports and investigations have highlighted risks from abusers and criminal gangs towards 16- and 17-year-olds placed in such settings. As such, critics say the proposals do not go far enough to protect 16- and 17-year-olds.

A coalition of children’s charities and organisations supporting care-experienced young people has launched a campaign in the wake of the consultation, calling on ministers to “keep caring to 18”.

Those involved in the campaign include children’s rights group Article 39, The Care Leavers’ Association and Just for Kids Law.

Other groups are also involved, including the National Association of Independent Reviewing Officers (NAIRO) and the National Centre for Excellence in Residential Child Care (NCERCC).

Change legislation

The coalition’s campaign calls for legislation to be changed to ensure it is law that every looked-after child receives care until their 18th birthday and that new standards apply for semi-independent and independent accommodation for care leavers aged 18 and beyond, with registration and inspection by Ofsted.

Carolyne Willow, director of Article 39, says: “The legal definition of children is people up to the age of 18 years.

“We know that teenagers don’t like to be referred to as children, because this often feels disrespectful and patronising. We’re using the word in its legal sense. Everyone under the age of 18 has rights under the Children Act 1989 and the United Nations Convention on the Rights of the Child, also agreed in 1989.”

Katharine Sacks-Jones, chief executive of charity Become, adds: “We do not believe that establishing a two-tier care system is in the best interests of children and young people.

“There is no similar expectation for those living in foster care or children’s homes that they will receive a lower standard of support when they turn 16.”

Jonathan Stanley, children’s residential care consultant at NCERCC, says there is a “major disagreement over the needs and rights of teenagers” among sector leaders and the government.

“Practitioners do not agree with the DfE proposal to formalise the absence of care for 16- and 17-year-olds. It is not possible to provide support without care; an absence of care is not support. Under these proposals, it is clear that children and young people would lose their right to care.”

However, Rachel Dickinson, president of the Association of Directors of Children’s Services (ADCS), is concerned about a lack of capacity for children under 16 placed in unregulated settings as an emergency.

She says: “If the proposal to ban the use of unregulated settings for under-16s is implemented, we would be interested to hear about what plans are in place to ensure this does not exacerbate capacity issues the sector is already facing, particularly in relation to finding placements for our most complex children and young people.”

National standards

Proposals also suggest the introduction of national standards for unregulated provision with the controversial government working group confirmed to be drafting these (see below).

National standards would require settings to publish a “statement of purpose” and ensure accommodation meets a specified quality, as well as offering a certain standard of support and protection for young people, the consultation document states.

However, questions remain over how such provision will be monitored, with the chair of the working group Sir Alan Wood suggesting requiring Ofsted to carry out inspections could leave it “overstretched”.

The consultation document sets out two options for monitoring standards:

1. Change the regulations to make the standards mandatory for local authorities. “We would require local authorities to only place children in provision that meets the standards. This would enable Ofsted to assess authorities on their use of independent and semi-independent provision, and compliance with the requirement to only place with providers who uphold the standards, under the Inspection of Local Authority Children’s Services Framework. Under this option, Ofsted would not register and inspect providers.”
2. Legislate to introduce a new quality and inspection regime. “This would require all providers of independent and semi-independent provision to register with Ofsted and be inspected against the new standards, and these could be established, through legislation, as National Minimum Standards, as defined under section 23 of the Care Standards Act 2000. The framework and associated standards would differ from the ones in place for children’s homes, reflecting that the nature of this provision is different, though the regime for registration and inspection would be similar. Local authorities would be required to place children in provision which is registered with Ofsted, and Ofsted could take enforcement action against providers that do not meet the standards.”

Stricter monitoring

Andy Elvin, chief executive of Tact Fostering and Adoption, agrees stricter monitoring of unregulated supported accommodation should be introduced.

“Many of us already look after 16- to 18-year-olds under appropriate regulations and a robust inspection regime – we do not understand why it would be different for any setting looking after this age group,” he says.

“We view the duty of local authorities to oversee these settings as wholly inadequate and that there is very little meaningful oversight. We think that 16-plus settings should come under the same regime as children’s homes as soon as practicable and that all under-18s should be in a home that is properly and robustly regulated and inspected as they are vulnerable children.

“Any other solution will simply be a cop-out that values cash and convenience above the safety and care of children.”

Stanley says regulations and quality standards “could be adapted so that all 16- and 17-year-olds in residential settings receive care and accommodation”.

Such adaptations are not a new idea, explains Stanley, as they already exist for other types of residential accommodation.

The proposals are included in a consultation paper published on 12 February, submissions to which close on 8 April.

They also include introducing new measures so that local authorities and police forces liaise before a placement in this provision is made and giving Ofsted new legal powers to act against illegal providers.

Consultation responses from various organisations highlight concerns over support for 16- and 17-year-olds, yet back proposals for more stringent regulations.

However, some argue that independent and semi-independent accommodation is a crucial step for older looked-after children entering adulthood.

Dickinson suggests there is a need to find a balance. “Some young people thrive in semi-independent living arrangements, where good wraparound support is part of a highly tailored plan,” she says. “However, we recognise and share the concern that this is not always the case.”

CHAIR DEFENDS THE ROLE OF EXPERT WORKING GROUP

Despite an ongoing public consultation, the DfE has formed a working group to draft national standards ahead of its closure.

Children’s minster Vicky Ford confirmed the structure and mandate of the group in response to a parliamentary question from former children’s minister Tim Loughton, whose question was posed after CYP Now revealed the existence of the group.

Chaired by former ADCS president Sir Alan Wood (pictured above), it is made up of representatives from: ADCS; Independent Children’s Home Association; Association of Chief Police Officers; National Youth Advocacy Service; Ofsted; Commissioning Alliance; Partners in Practice Local Authorities; Local Government Association; and providers of unregulated accommodation.

Ford confirmed the group’s three-point mandate is to support the development and drafting of new national standards for semi-independent provision for children in care; further develop evidence regarding the use of these placements for under-16s; and advise on what should be taken account of when considering the implementation of the results of the consultation.

It has drawn criticism from sector leaders who accused the government of “secrecy” and highlighted a lack of involvement of care-experienced young people.

However, Ford says the group is “one way” of “seeking the views of as many people as possible who are affected by the proposed reforms”.

The group’s work, including supporting development of new minimum standards, will be informed by consultation responses and it will report after the consultation has closed, Ford confirmed.

Wood says the group has “not been tasked with involving care-experienced people in the consultation” and is “essentially providing expert advice to supplement the consultation”.

“The purpose of the group is to discuss key questions and field problems that may arise once the consultation has finished,” Wood explains.

“We will meet probably only three times. The idea we have been meeting in secret is somewhat fanciful.”

The DfE is in talks with the children’s commissioner for England Anne Longfield over the involvement of care-experienced people in the consultation, Wood says.

“The commissioner is working on a report based on experiences of people who have lived in such accommodation. As a group, we have not been asked to come up with any proposals surrounding the involvement of people in care or care-experienced people,” he adds.

A spokesman for the commissioner’s office says: “We have discussed with the DfE the need to ensure that the direct experiences of children in care play a prominent part in the drawing up of new guidelines. We are also finalising a report into the use of unregulated accommodation, which we will publish shortly.”