High Court gives go-ahead for discrimination claim over legislation on regulated settings and children in care

A children’s rights charity has secured permission from the High Court for a judicial review of secondary legislation made by the Education Secretary, Gavin Williamson, which provides that children in care in England up to the age of 15 – but not 16 and 17-year-olds – must always live in regulated settings where they receive day-to-day care from adults.

Article 39 claimed that the change to the law is discriminatory, arguing that children in care aged 16 and 17 “similarly need care, protection and guidance where they live”. 

Around 6,000 children in care aged 16 and 17 live in accommodation such as hostels, shared houses, flats and bedsits where they don’t receive any day-to-day care, it said.

Article 39 added: “Most of this kind of accommodation (called semi-independent, independent or supported accommodation) is run for profit. Owners are able to bypass the children’s homes quality standards by not providing care to children. Ministers are promising to regulate these places but have decided against making them provide care, and have proposed a much weaker set of standards than already exists for children’s homes.”

The charity said that nearly one in three (29%) children in care who live in unregulated accommodation where they do not receive care are the subject of a care order. “This means their local authority has parental responsibility for them and an overarching duty to safeguard and promote their welfare. Around 4 in 10 children living in unregulated accommodation were put there by local councils within less than a week of entering care.”

The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 (Statutory Instrument 161) is due to come into force on 9 September 2021.

The grounds of challenge are:

1. The Regulations irrationally discriminate between children aged 15 and under and those aged 16 and 17;
2. The Regulations fail to have regard to specified equality needs. "They discriminate against 16- and 17-year-olds on the basis of their age, and they disproportionately impact upon boys and children from black, Asian and minority ethnic communities (who make up over half of children in unregulated placements, despite comprising 26% of the care population)"; and
3. Although the government did carry out a consultation, "this was unfair as its focus was the provision of care for under 16s only".

Article 39’s Director, Carolyne Willow, said: “[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.

“We have submitted a huge amount of evidence to the High Court showing the very serious harms suffered by 16 and 17 year-olds in care put into substandard accommodation and exposed to abuse and exploitation. This includes data we obtained from the Department for Education through a freedom of information request showing that 14 children in care who were living in semi-independent accommodation died between April 2018 and September 2020. The vast majority, if not all, of these children were aged 16 and 17. 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.”

Oliver Studdert, partner at Irwin Mitchell, which is advising Article 39, said: “We are delighted that the High Court has granted permission for this important case to proceed to a full hearing. The court has agreed that the grounds of the judicial review case are arguable.

“All of these grounds....will now be heard at a full judicial review hearing. By failing to extend the reach of the new regulations to 16- and 17-year-olds in the care of local authorities, the Secretary of State is declaring it is acceptable that thousands of children are placed in wholly unsuitable placements every year without receiving any care. Changes of placement, from a care to non-care setting, can and do happen overnight, often for no reason other than the child’s age. Many 16- and 17-year-olds entering the care system will never receive care.”

Studdert has instructed Steve Broach from 39 Essex Chambers and Khatija Hafesji from Monckton Chambers on the claim.

Article 39 has raised £6,245 towards a £10,000 stretch target via Crowd Justice.