Court of Appeal dismisses challenge to Education Secretary decision not to ban placements of 16 and 17 year olds in unregulated accommodation

The Court of Appeal has refused a charity's appeal of a High Court decision which found that Government legislation banning local authorities from using unregulated homes for children in care aged 15 but not for 16 and 17-year-olds was lawful.

The High Court dismissed the judicial review brought by the claimant charity, Article 39, in March of this year.

The charity, which seeks to protect children's rights in institutional settings, argued that the legislation irrationally discriminated against 16 and 17-year-olds by excluding them.

Under the legislation introduced by the Secretary of State for Education in September 2021, local authorities cannot place children aged 15 or under in properties which are unregulated.

The Secretary of State considered that placements in unregulated accommodation are suitable for some 16 or 17-year-olds moving towards independence, subject to individual assessment of their needs.

At the High Court, Mr Justice Holgate considered arguments from Article 39, contending that 16 and 17-year-olds should have been included in the secondary legislation and protected from the "known dangers" of placement in unregulated accommodation.

Holgate J dismissed the grounds put forward by the claimant, finding – among other things – that he could see no basis for the court to conclude that it was irrational for the Secretary of State to draw the distinction between children above and below 16 in relation to placements.

Commenting on the Court of Appeal's decision to refuse permission for an appeal of Holgate J's ruling, Article 39's Director, Carolyn Willow, said: "I am so sorry we have come to the end of the line with this legal action. I know just how much this means to thousands of care experienced children and adults, and to those who champion and defend your rights."

Willow added: "We tried our best to force a change to this unjust and harmful government policy, so that individual children do not have to find lawyers and bring cases themselves when they are put into accommodation which makes them feel scared, unwanted and alone. Children in care have enough to contend with without having to fight for basic care and security.

"Although we cannot take this case any further, individual children in care who are given bedsits, hostels, caravans and holiday rentals as homes, and who do not feel safe or looked after, can still challenge this. Local authorities continue to have many important duties towards children in care, and we are available to help children challenge decisions at an individual level."

Adam Carey