Closing the gaps to protect society's most vulnerable - are you affected by proposed changes to regulation of Children's Homes?

The issue of unregulated children services in England has been an increasing area of concern for local authorities, police forces and regulators for some time. Section 11 of The Care Standards Act 2000 requires that any service providing “care” for a child (under 18) to be registered with Ofsted, failing to do so is a criminal offence. However, there is no such requirement for any service providing “accommodation” only to service users. The matter is complicated further by the absence of any definition in legislation as to what constitutes “care”.

Unregulated services were intended to act as a stepping stone for older children leaving the care system to be supported to being able to live independently within the community. The lack of care services being provided meant that it was not necessary or proportionate for Ofsted to regulate these services.

However, the long-standing shortage of placements in the children’s care sector, and the ambiguity as to what constitutes care has seen a significant increase of instances of local authorities placing children (predominantly under 16) in unregulated settings, from 2,900 in 2009 to 6,100 in 2019. The issue was highlighted in the case of Dorset Council & A [2019] EWFC 62 which concerned a 15-year-old girl’s experiences within the care system where HHJ Dancey said:

“The need for regulated placements is likely to increase. Social workers work tirelessly (and some silly hours) trying to find placements. When they [regulated placements] turn up they are seized upon. Sometimes it has taken so long, and trust has so broken down that it can be difficult to move young people on”.

It is true that many of these services are well run and committed to the children they accommodate. However, concerns have been raised that the lack of regulatory oversight (and with it inspection) by Ofsted has given rise to an increase in the number of vulnerable children being placed in environments which are unsuitable (for example in caravan parks), and in some cases, are exposing them to increased risks of falling victim to sexual exploitation or being targeted by criminal gangs.

In February 2020, the Education Secretary Gavin Williamson MP announced plans to legislate against the use of unregulated care services to accommodate children under the age of 16. Following this announcement, the Department for Education has consulted on the issue. The DfE consultation concluded in June 2020 and a report is yet to be published.

While the DfE is yet to publish its report based on the consultation, it is likely that this is an issue that the Government will be eager to address by changing the legislation. The recent high-profile cases concerning local authorities failing to protect vulnerable children will mean there is likely to be an appetite for removing the ambiguity in existing legislation. Resolving the ambiguity will bring those providing care and accommodation for children under the regulatory oversight of Ofsted. The overall aim would be to ensure that vulnerable children are accommodated in safe and appropriate settings.

If the Government proposals are enacted, it will mean that those services currently unregistered will need to become registered with Ofsted, failure to do so will expose providers to criminal liability. It is therefore likely that Ofsted would see a significant increase in registration applications, which would be likely to place increased strain on the registration system. As a result of the increase in registration applications it is likely that there will be a significant increase in the time in which the registration process is completed. This will mean that those providers awaiting registration will be unable to carry on their business while the application is being assessed.

If you are a provider of an unregistered service or considering venturing into this area, it is vital that you protect your interests in the face of any changes in the law which would affect your business. Lawyers within CMS’ regulatory team regularly advise on compliance with health and social care regulatory frameworks and can assist you as to any changes you will need to make to ensure compliance with any new legislative provisions.