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

The ongoing issues surrounding unregulated children’s social care continue. We last wrote about the problem of unregulated children’s services in England in our article dated 17 March 2022, following the Department for Education’s (‘DfE’) consultation report in respect of independent and semi-independent accommodation which currently falls outside of regulatory oversight. As previously reported, the DfE introduced a ban on placing under-16s in unregulated provision, effective from September 2021, with further reformative measures introduced in December 2021. The commencement of reforms is still awaited, however, regarding mandatory national standards and Ofsted regulation for accommodation housing 16- and 17-year-old looked after children and care leavers.

Whilst we look forward to these further developments, it is apparent that children under the age of 16 are still being placed into unregulated accommodation. A recent BBC News investigation received Freedom of Information request responses from 141 local authorities in England which confirmed that more than 50 admitted to placing at least 120 children in unregulated accommodation. It is illegal for companies to run unregistered children’s homes, however, exemptions do exist which allow children to be put into placements which are not regulated, such as for holiday or leisure activities, or within mobile homes. As a result, children have been found to have been placed in campsites, narrowboats or caravans as well as being housed in tents, to provide a few examples.

Reported comments from Ofsted are that the holiday and leisure exemptions are not meant to allow children to be moved between temporary placements, but no law or guidance exists defining these activities. Additionally, providers have commented that unregulated placements exist due to the lack of registered accommodation. The DfE stated, “Ofsted can prosecute providers operating as children's homes without the required registration and it holds local councils to account for the quality of care and accommodation they provide to vulnerable children", but Ofsted have not brought any prosecutions against providers for running unregistered children’s homes to date.

Ofsted has stated that it has not been provided with additional powers it was promised, such as the ability to fine providers directly. In its most recent report into children’s social care in England, published 7 July 2022, Ofsted confirmed that 420 investigations were carried out into possible unregistered settings between April 2021 and March 2022. Of those, it was found that 292 should have been registered with Ofsted as children’s homes. Ofsted has commented that most of those settings ‘have since received warning letters and some will have closed beforehand’.

It is unclear precisely how these ‘loopholes’ in unregulated accommodation will be addressed. As stated in our previous article, £142 million of funding is to be injected over three years to support Ofsted, local authorities and providers in delivering the proposed reforms. Though we can be hopeful the investment will combat the placement of children placed in temporary unregulated accommodation through increasing the number of registered accommodations, it is not yet certain. We will continue to monitor the position of both the DfE and Ofsted regarding any upcoming plans or discussion to mitigate this issue, including the finalisation and publication of the long-awaited mandatory national standards expected within the next 12 months.

If you are a provider of accommodation for young people, work with any such providers or are 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.

Co-authored by Heather Flaherty, Solicitor Apprentice.