Ban on unregulated care for under-16s ‘must be enforced effectively’

A failure to register is a criminal offence and Ofsted have powers to investigate and prosecute organisations who are suspected of carrying on without registration.

The distinction between establishments who provide ‘care and accommodation’ and those who just provide ‘accommodation’ mean they fall into one of two categories: regulated and unregulated.

Establishments can, at present, legally provide an ‘unregulated’ type of provision and are not required to register with Ofsted, but there are often a number of grey areas that make it difficult to establish whether a provision should be registered and whether they are operating illegally. This grey area normally comes down to whether an organisation is deemed as solely providing ‘supported accommodation’, or whether the service they provide could also be classed as ‘care’, which would require them to register.

Currently, local authorities are facing numerous pressures, including a lack of places in children’s homes. This can often make it difficult to find emergency placements in regulated settings, certainly at short notice. In these circumstances, a child or young person may be placed in a ‘supported living’ setting, which is not required to be registered with Ofsted.

During 2018-19 there were 660 looked after children placed in independent or in semi-independent living accommodation who were under the age of 16 when the placement started; this equates to 5 per cent of looked after children in these settings during the same year. 

Ofsted acknowledges that there are simply not enough places in children’s homes at present and have committed to focusing on registering children’s homes as a priority. They have also introduced a temporary fast-track application route for emergency circumstances as a result of the Covid-19 pandemic.

What are the proposed changes?

From September, the DfE has announced that children in care under 16 will no longer be allowed to be accommodated in unregulated independent or semi-independent placements. 

The DfE acknowledges that whilst these types of placements can be the right option for some older children, they consider that children under 16 are too young.

The effect of the ban is that local authorities must place looked after children who are under 16 in either foster care or a children’s home that is registered with Ofsted. The delay in introducing the ban is to allow local authorities time to respond to the changes and to make alternative arrangements. It also provides a grace period for organisations who may be operating unregulated settings or to work with placing authorities to find suitable alternative arrangements for those children.

The DfE has announced that in addition to the ban, they will be providing support to local authorities to create more places in children’s homes, including further financial investment, and will focus their support on local authorities that have the highest rates of children placed in unregulated settings.

It also intends to legislate, giving more powers to Ofsted to take enforcement action against unregistered providers and suggest that these powers will enable Ofsted to force illegal providers to close quickly, register their service if appropriate, or face some form of penalty.

It is clear from the consultation response that there is widespread support for ensuring that children under 16 are placed in settings that are registered and therefore regulated. 

Will they work?

However, if the ban is to have a positive effect on children’s social care, it must be supported with the additional measures identified by the DfE as a part of their consultation; most importantly a quick and effective focus on increasing children’s homes and places available to looked-after children. This will ensure that local authorities have options and the ability to place all children in regulated settings. The consequences of failing to do so will put local authorities in a far more difficult position than they face currently.

It’s vital that any organisations offering an unregulated service ensure that they are fully compliant with the changes by September. Although the ban does not extend to young people over 16, new guidance is to be issued by Ofsted about standards for these types of services and therefore providers must be aware of these changes and work to ensure compliance also.

These organisations have been the centre of Ofsted’s focus in children’s social care for some time now and with the changes set to strengthen Ofsted’s powers, there will no doubt be an increase in enforcement action and prosecutions where providers are suspected of falling foul of the regulations.

Francesca Snape is an associate solicitor at Stephenson’s law firm based in the regulatory department specialising in health and social care regulation and professional discipline.