Green light for judicial review on unregulated accommodation

The review will look at secondary legislation made by Education Secretary Gavin Williamson that bans the use of unregulated settings for children in care in England but only up to the age of 15.

The legal challenge is being brought by children’s rights charity Article 39, which says the law discriminates against 16- and 17-year-olds in care.

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The charity says they need the same “care, protection and guidance” provided in regulated settings, where young people receive day-to-day care from adults.

The legal change is due to come into force on 9 September.

According to Article 39, around 6,000 children in care aged 16 and 17 live in accommodation where they do not receive any care. This includes hostels, flats and bedsits.

📢📢#KeepCaringTo18 We're so pleased to share our news that the High Court has today granted permission for a judicial review of secondary legislation which we argue discriminates against 16 and 17 year-olds in care. All three grounds arguable! More here: https://t.co/tGtL9ceAWD pic.twitter.com/ENbEyafzMl

— Article 39 (@article_39) August 17, 2021

“Families up and down the country have, this past week, been holding their teenagers close as they received their A-Level and GCSE results and made big decisions for the next part of their lives,” said Article 39 director Carolyne Willow.

“Yet in this new legislation we have the Education Secretary saying it is perfectly acceptable for children in the care of the state who are still in compulsory education to be living in places where they receive no day-to-day care from adults.

“That means children sorting out their own school uniforms, making and going to health appointments on their own, and not having family holidays or having someone in a parental role who’s going to know when they’re upset or need cheering up, and can just be there for them.”

She says that evidence already submitted to the High Court shows “the very serious harms suffered” by teenagers in “substandard accommodation and exposed to abuse and exploitation”.

This includes Department for Education data showing that 14 children in care living in semi-independent accommodation died between 2018 and 2020.

“It’s no good the government saying it plans to introduce standards for these places when ministers have decided to change the law to make 16 the age when children in care don’t have to be actually cared for,” she added.

The judicial review has been welcomed by charities, including Together Trust and Mind.

“Our research shows that high numbers of compulsory school-aged children in care are not in education or training whilst living in unregulated accommodation,” said Together Trust communications and campaigns manager Ali Gunn.

“We have seen first-hand the detrimental impact that this has on their mental health and well-being. This new legislation will push those children even further away from the sort of care that a loving, stable, and safe family or children’s home would give them.”

Mind's head of policy, campaigns and public affairs Vicki Nash added: “It is right that a judicial review will go ahead and that this issue will be looked at properly; we know that the trauma that many looked-after children have gone through means they are far more likely to experience mental health problems and need additional support.”

The government’s plans have also been criticised by Labour, with shadow education secretary Emma Lewell-Buck acccusing ministers of “legislating to deny children aged 16 and 17, who are in the care of the state, any care at all”.

The DfE has been contacted for comment.