Campaigners are to appeal after a court ruled the government had acted lawfully by allowing councils to place looked-after children aged 16 and 17 in “unregulated” accommodation without care or supervision.
They had argued that legislation introduced last year was discriminatory because it required local authorities to provide minimum accommodation standards for children in care aged 15 or under, but not for those who were older, leaving the latter group at risk of abuse.
About 6,000 children in care are thought to live in unregistered accommodation in England such as bedsits, shared houses, hostels, and in some cases caravans, boats or barges, raising fears this leaves them exposed to exploitation by gangs.
Critics say this type of accommodation effectively leaves vulnerable looked-after children to fend for themselves with minimal support, and in often inappropriate settings. Twenty-nine children aged 16 and 17 have died in the past five years while living in unregistered accommodation.
However, the judge, Mr Justice Holgate, ruled that despite “troubling examples” of children suffering exploitation, it was the case that independent and semi-independent accommodation was the “most appropriate solution” for some 16- and 17-year-olds.
On that basis it could not be irrational to draw a distinction on the basis of age, he said, concluding the education secretary was “legally entitled to take the view that unregulated accommodation of a sufficiently high quality may continue [for 16- and 17-year-olds]”.
Carolyne Willow, the director of the campaign group Article 39, which brought the case, said: “This is a very upsetting judgment because of the profound implications for children in care. There is no question that children will continue to be placed in wholly unsuitable accommodation.”
She added: “Ministers were pushed into taking action because of mounting evidence of the harms suffered by children in care living in properties that bypass ordinary care standards. Instead of protecting all children, they decided to create a two-tier system where children in care aged 15 and under will always be cared for where they live, and those aged 16 and 17 can go without care in their home.”
The court heard that there was a national shortage of suitably regulated accommodation. Barring 16- and 17-year-olds from unregulated homes would, according to the Department for Education (DfE), require 6,000 new placements in children’s homes or foster care to be created at a cost of £500m.
The government has said it will introduce new minimum quality standards for all unregulated accommodation. The majority of providers are privately owned, and the average cost of an unregulated place is £948 a week, with average operating profits of £330 a week, according to the Competition and Markets Authority.
A Department for Education spokesperson said: “We welcome this decision which notes that the department has acted fairly and lawfully.
“We have already banned the placement of under-16s in unregulated provision and are introducing mandatory national standards and provider-level Ofsted inspection of these placements. The independent review of children’s social care will also address growing pressures in the care system.”
