Recent years have seen an apparent increase in the use of unregulated and unregistered provision for children in care and care leavers with growing concern about the quality of some placements.
It has long been accepted practice for councils to place older looked-after children and care leavers in accommodation that is not regulated by Ofsted.
Such unregulated provision - mainly supported living - can provide a valuable stepping stone for young people on their journey to independence.
However, an increase in the number of older children coming into care means there is a shortage of placements in some areas.
Supply and demand
A mismatch in supply and demand for all types of care placement may also be a factor in increased use of unregistered provision - settings providing care as well as accommodation that should be registered with Ofsted as children's homes but are not.
There continues to be confusion within the sector about the difference between unregulated and unregistered provision and the responsibilities of councils and providers.
It is vital these differences and duties are understood, says Yvette Stanley, Ofsted's national director for social care.
While there are some providers that knowingly fail to register, others may not realise they need to do so.
This can happen when a supported living provider has extended what they do without recognising they have crossed the line into providing care, explains Stanley.
It is also common with short-term or crisis arrangements when a placement needs to be found quickly.
"Some providers with the very best of intentions may start to provide care and think they are responding to a particular young person's needs but at that point they really need to be registered with us," says Stanley.
"Local authorities might have been told a place is in the process of registration but actually they may not have registered yet."
So what does Ofsted want to see when inspecting services for looked-after children and care leavers?
"I want them to have thought very carefully about a young person, their vulnerability and the risks around them," says Stanley. "Where are they on that journey to independence and how much support do they need? I also want them to be really clear about the standard of accommodation that is acceptable for a young person to be placed in. Is this the sort of provision I would place my own child in?"
This includes assessing the level of staff training as well as the setting itself with decisions discussed with the young person in question and made in their best interests.
"Often when we have gone to either unregistered or unregulated provision and we have worries, it will be about the quality of staffing, quality of provision and the wider support for the young person," says Stanley.
A report published by the Howard League for Penal Reform in July raised concerns about the potential criminalisation of children living in unregulated provision.
This echoed concerns raised earlier in the year by then children's minister Nadhim Zahawi who wrote to directors of children's services (DCSs) to remind them of their responsibility to ensure unregulated provision was suitable and safe.
"We must do as much as we can to ensure that young people are not placed in settings that expose them to a range of safeguarding risks such as CSE [child sexual exploitation] and becoming involved in County Lines," he wrote.
One issue he raised was a lack of communication between placing and host authorities when it came to whether provision was good or not.
He announced he had asked former DCS Sir Alan Wood, chair of the residential care leadership board, to explore factors behind increased use of unregulated accommodation - a move very much welcomed by Stanley.
There is ongoing debate about whether supported living provision should be regulated. This is something that needs "very careful thought", she says.
At a time when places are already in short supply and budgets are tight there are concerns that additional regulation may reduce the amount of provision or increase the cost.
There are also questions about how regulation would work in practice given supported living providers often cater for vulnerable adults aged 18 and over as well as younger age groups.
"It is absolutely right that as a society we assure ourselves that our older children are living in homes that are safe, suitable and equipped to meet their needs," says Stanley. "Regulation would put in standards around the training of staff and standards of accommodation. But moving to regulation always comes with choices and consequences so it is really important for providers, the sector and policymakers to sit down and make sure that with or without regulation there are ways of making sure those standards are met."
One development that may help - especially when it comes to out-of-authority placements - is more information for councils on providers that are operating illegally wherever they are based.
Previously Ofsted would alert the local authority where unregistered provision was located when taking enforcement action but as of June this year that information has been shared with all councils in England and Wales.
According to Stanley this "will help local authorities make those difficult placement decisions with a better level of information".
GUIDE TO UNREGULATED AND UNREGISTERED PROVISION
Under the law, local authorities are allowed to place children in care and care leavers - usually aged 16 or 17 - in "other accommodation" that is not registered with Ofsted such as semi-independent units, hostels and supported lodgings.
Councils have responsibilities - set out in statutory guidance - to ensure the accommodation they use is suitable and children and young people are getting the support they need.
This includes carrying out checks on the suitability of the landlord or providers and ensuring settings comply with health and safety standards for rented accommodation.
When local authorities are placing a young person outside their area, there are additional safeguards. These require the placing authority to inform the host authority before confirming the placement and to check whether the host authority is aware of any concerns about the setting.
Settings that provide care as well as accommodation to looked-after young people and care leavers must register with Ofsted as a children's home. It is illegal not to do so.
Local authorities are not banned from placing children and young people in unregistered provision and may do so in exceptional circumstances but it is not recommended as routine practice, says Stanley.
"They need to take a very careful decision and it needs to be properly recorded," she says. "Our job when a placement is made in unregistered provision is to ensure the provider registers, taking swift action to ensure they legitimise and can meet the standards."
Common myths include the fact there is no need to register if you only provide care for 28 days or less. "That is definitely not true," says Stanley. "It doesn't matter how long you provide the accommodation for. If you're providing care you need to register."
It is not about the age of the child or young person either. Care is not defined in law but is about someone's vulnerability and support needs. For instance, a child or young person who needs constant supervision will almost certainly require "care".
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