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Unregulated Accommodation

Chris MacDonald, Children’s Guardian at CAFCASS, considers the issues arising when a young person is placed in semi-independent accommodation.

Chris MacDonald, Children's Guardian at CAFCASS

















Chris MacDonald, Children's Guardian at CAFCASS


A BBC Newsnight investigation  into unregulated accommodation has shone a spotlight on the expanding market for semi-independent (also known as 16+ or supported) accommodation, for adolescents for whom it has been difficult or impossible to identify other places such as registered children's homes or families for them to live with. Of course, many of these young people will find themselves the subject of family proceedings and the President of the Family Division has issued Practice Guidance concerning children living in unregistered children's homes.


Background
As at 31st March 2019, there were 78,150 Looked After Children in England, and of these 12 per cent were placed in residential accommodation (registered children's homes, semi-independent accommodation and secure children's homes) 1. The Looked After population clusters disproportionately at adolescence. Thirty-nine per cent of Looked After Children are aged 10 to 15 years old and a further 24 per cent are aged 16 and above.

In 2016, Sir Martin Narey conducted a review of children's residential care in England which reiterated the important role that children's homes can play; not as a last resort but as a considered choice for some young people. A 2015 research report arrived at a similar conclusion. Semi-independent accommodation is defined by reference to the age of the residents (who must be at least 16 years old) and the extent to which they are 'cared for'. Semi-independent accommodation must 'support' rather than 'care' for young people. Ofsted have produced a checklist to assist providers in distinguishing between semi-independent accommodation and a registered children's home, reproduced at the foot of this article 2.


What are registered children's homes?
Section 1 of Care Standards Act 2000 defines an establishment as a children's home 'if it provides care and accommodation wholly or mainly for children'. It then details exemptions like hospitals and fostering agencies. Part 2 of the Care Standards Act 2000 makes it a criminal offence to operate a children's home without having registered. To register, an establishment must meet a series of requirements under the Care Standards Act 2000, Care Standards Act 2000 (Registration) (England) Regulations 2010 and the Children's Home (England) Regulations 2015 ('the 2015 Regulations'). In summary, this involves:

• Becoming a registered provider with Ofsted with a registered individual who represents the provider to Ofsted;

• Employing a registered manager who is individually registered with Ofsted;

• Producing a statement of purpose including the information required in Schedule 1 to the 2015 Regulations and a children's guide.

• Complying with policies and procedures as set out in the 2015 Regulations.

Ofsted inspect children's homes graded 'inadequate' or 'requires improvement' at least twice annually and those graded 'good' or 'outstanding' once annually, with variation as to whether the inspection is an initial risk assessment, interim or full inspection.

Ofsted have wide-ranging statutory enforcement powers including restricting admissions, issuing compliance notices, suspending or cancelling a provider's registration or prosecuting for an offence. Sir Martin Narey observed that whilst only two homes in the two years preceding his report had been formally closed, 86 homes had resigned their registration after a critical inspection 3. In July 2019, the deputy director of Ofsted informed the Association of Directors of Children's Services (ADCS) annual conference that there had been an increase in enforcement action over the prior six to nine months and more homes were having their licences suspended. In December 2019, Ofsted's national director for social care noted that in the preceding 12 months, only 30 of 150 unregistered provisions reported to Ofsted did not need to register when inspected. An example would be a semi-independent provider who offered 'care' as opposed to 'support' due to the needs of particular young people.


What constitutes unregulated provision?
There are exemptions to the expectation that establishments who care mainly or wholly for children should register as a children's home. Ofsted details these exemptions in their 2018 Introduction to Children's Homes 4. Homes with no permanent base or which are constantly moving (like those in caravans, barges or boats) are 'unlikely to meet the definition of a children's home and will not be required to register with Ofsted'. Another exemption involves supported/semi-independent accommodation for those aged 16 years old and above. These placements are therefore 'unregulated' – not required to comply with the expectations and scrutiny of a children's home – but not 'unregistered' – expected to comply with these expectations but avoiding registration. Unregulated provision is permissible whereas unregistered provision is illegal.

Semi-independent accommodation is not subject to any minimum standards in law and the responsibility for determining the suitability of the accommodation falls to the placing local authority. In 2015, the Children's Society 5 published research  which found significant variation in the quality of semi-independent accommodation. There is a consensus that semi-independent accommodation meets the needs of some young people as a stepping stone towards adulthood but there is emerging concern that it makes up the shortfall where registered children's homes are unavailable or do not accept referrals.


Children who fall between registered provision
In an excoriating judgement in Re X (A Child) No 3 [2017] EWHC 2036 (Fam), Munby P (as he then was) observed at para 37:

'What this case demonstrates, as if further demonstration is still required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with.'

For children whose safety requires their detention in secure accommodation under s25 Children Act 1989, the difficulties in sourcing a bed, particularly for those who may pose the most significant risk to themselves or others, are well-documented in a litany of judgements. Recent examples include Re O [2018] EWFC B60, A Local Authority v AT and FE [2017] EWHC 2458 (Fam) and most recently, Re T (A Child) [2018] EWCA Civ 2136, in which McFarlane P, giving the lead judgement, began by expressing concern at the development under the inherent jurisdiction of a parallel process to the statutory regime under s25 Children Act 1989, a process which is frequently required 'solely as a result of the lack of available approved secure children's homes'.

It therefore follows that for some of these young people with the most complex needs, there will be no placement available in a secure children's home and a local authority will be forced to explore the safest alternative. This would involve approaching registered children's homes for the young person and seeking the authorisation of the High Court to deprive them of their liberty. Where the young person has complex needs, and even more so when the young person is also aged 16 or over, local authorities sometimes find that no registered children's homes will accept the referral. This can also be the case where the young person would not meet the criteria for secure accommodation, or the local authority considers it a disproportionate route to take, but nonetheless the young person has complex needs which cause registered children's homes and foster families to refuse the referral.

Anecdotally, registered children's homes are sometimes disincentivised from accepting referrals for the most complex young people who may not make progress, who may require restraint or who may expose other young people to increased risk because Ofsted inspections may be critical where a home has accepted a young person and the stability or safety of other young people is compromised. In his 2016 review, Sir Martin Narey highlighted the prospect that registered children's homes, in part due to the perceived potential for Ofsted criticism, would decline a young person who may not succeed in the home or who could have a disruptive impact on the dynamics. He quoted one interviewee as stating 'the current system over empowers managers to refuse young people on what can be at times, very flaky evidence of a mismatch' 6.

An inevitable consequence is that the unregulated sector – whose financial viability is not intimately connected with their latest Ofsted inspection – will accept referrals for these young people. A local authority may therefore have to place a young person in semi-independent accommodation, not as a consequence of a considered assessment of their care plan but in the absence of any alternative. In their briefing for a House of Commons debate on 15th October 2019 regarding unregulated accommodation for 16 to 17 year olds, the Local Government Association commented 'while unregulated settings are the right accommodation for some young people, rising use is partly driven by shortfalls in places in registered children's homes, often for young people with more complex needs'. The data may support this conclusion. In their briefing for the debate, the Children's Society note:

'There is no data reported at a national level on children in unregulated accommodation. However a written parliamentary question showed between 2014 and 2018 there was a 53% increase in looked after children living independently in supported or semi-supported accommodation (up from 3,280 in 2014 to 5,020 in 2018) and a 97% increase in the number of children living in supported or semi-supported accommodation outside their home local authority area (up from 1,020 in 2014 to 2,010 in 2018)'.

One important consideration is that the semi-independent providers who, in accepting young people whose circumstances amount to a deprivation of their liberty which requires authorisation under the Inherent Jurisdiction, may transcend 'support' and begin to 'care' for a young person. Even a cursory glance at the checklist at the foot of this article will show that where a young person is considered to be the subject of 'continuous supervision and control' and the Court authorises those arrangements which may consist of supervision inside and outside the home, restraint or restricted access to a phone or medication, the young person's placement is likely to be 'caring' and not 'supporting' that young person. There are two issues for the Court and the parties. The first is that if the provider is required to register, the provider may terminate the placement or Ofsted take enforcement action and either eventuality could lead to an abrupt and unplanned ending to the placement. The second is that the distinction between 'support' and 'care' was drawn with purpose and a local authority is otherwise asking a placement to 'care' for a child who they are only equipped to 'support'.


'Other arrangements'
Section 22C Children Act 1989 sets out how local authorities should determine where a child will live. Section 22C(6)(d) allows a local authority to place a child in 'other arrangements', that is in a placement that is neither approved under Fostering Regulations nor a registered children's home, where this is consistent with the child's welfare and the most appropriate placement available. Semi-independent accommodation is an example of an 'other arrangement'.

Regulation 27 of the Care Planning, Placement and Case Review (England) Regulations 2010 (the 2010 Regulations) requires that a local authority considering a placement in 'other arrangements' informs the Independent Reviewing Officer, arranges for a young person to visit the accommodation (where practicable) and be satisfied as to the suitability of the accommodation for the young person, having regard to the matters in Schedule 6.

Schedule 6 specifies:

In respect of the accommodation, the—

(a) facilities and services provided,

(b) state of repair,

(c) safety,

(d) location,

(e) support,

(f) tenancy status, and

(g) the financial commitments involved for C and their affordability.

In respect of C, C's—

(a) views about the accommodation,

(b) understanding of their rights and responsibilities in relation to the accommodation, and

(c) understanding of funding arrangements.

These are expanded upon in paragraphs 3.121 to 3.142 of the statutory guidance for the 2010 Regulations. In 2014, the Select Committee for Education considered options for young people post-16 in a report entitled 'Into Independence: Not Out of Care' and described the framework under s22C(6)(d) to be 'inadequate and ineffective quality assurances for 'other arrangements''.

In practice, through the Placements/Commissioning Team and social work teams, the local authority should, amongst other things, assess health and safety considerations, make unannounced visits and audit staff DBS checks. This ongoing quality assurance may be more difficult where young people are placed at a distance. The Children's Society also found that two-thirds of semi-independent placements were not procured in advance.

Although under Regulation 11 of the 2010 Regulations, local authorities have a duty to notify the host local authority when placing a child in their area, there is also no expectation or mechanism for local authorities to share their concerns about a semi-independent provider with other local authorities. This has led to situations as identified in the Newsnight investigation whereby one local authority deemed accommodation 'unsuitable' for all their young people, but a neighbour continued to use the provider unwittingly. Where Ofsted may scrutinise semi-independent accommodation it is only by proxy in the context of an inspection of a Children's Services department and their use of 'other arrangements', or in response to a complaint about the safety and welfare of children in such settings.


What are some practical steps?
There are increasing calls for semi-independent accommodation to be the subject of regulation and closer scrutiny. No Place At Home, a report from the All Party Parliamentary Group for Runaway and Missing Children and Adults published in September 2019 7, refers in stark terms to 'the frightening twilight world of unregulated semi-independent homes for older children, aged 16 plus'. The Group received written evidence from several police forces concerned that unregulated accommodation in their areas left children particularly vulnerable to exploitation. The Children's Commissioner called for regulation of semi-independent provision.

A motion tabled in the House of Commons following the Newsnight investigation led to a parliamentary debate on 15th October 2019 with submissions from a number of interested organisations. Michelle Donelan MP (and Parliamentary Under-secretary for Children) concluded her remarks by saying: 'Both the Secretary of State and I are clear that the current system is completely untenable. We must get this right, and I will ensure that we do'. Against this backdrop, regulation of semi-independent accommodation may follow, although calls for regulation of semi-independent accommodation have been dismissed in the past.

In the meantime, practitioners may be mindful of the Practice Guidance issued by the President of the Family Division on 12th November 2019:

• The local authority should inform the Court when seeking authorisation to deprive a child of their liberty whether the proposed placement is registered with Ofsted or not.

• If the placement is not registered, the Court should enquire whether the placement needs to be registered. This would either be because it does not fit within the exemptions or because it is semi-independent accommodation but it is providing 'care' and not 'support', making it a children's home and no longer semi-independent accommodation.

• If the placement does not need to be registered, the Court should ensure that the arrangements for the local authority to assess that the accommodation is suitable are sufficient for the child and the necessary support is being provided. It may consider directing a statement to confirm that the matters in Schedule 6 have been satisfactorily explored.

• If there is authorisation to deprive the child of their liberty, the semi-independent accommodation is likely providing care rather than support and therefore it would need to be registered with Ofsted.

• If the placement needs to be registered, the Court will order that the provider applies for registration within 7 working days and will expect the local authority within 10 days of the order to confirm Ofsted have received the application and can determine it. If this confirmation is not received within 10 days, an urgent hearing should be listed.

• The Court will wish to be assured that the placement is satisfied it can meet the child's needs. The Court will also want the local authority to specify how it is supporting and assessing the suitability of the placement in the meantime.

• The Court will review the process for registration over the subsequent 12 weeks. If the registration is refused or withdrawn, there should be an urgent hearing. If the accommodation is unregistered, the Court will take this into account when considering whether the placement remains in the child's best interests.


Practitioners should be especially vigilant to those young people who have profoundly complex needs but who live in semi-independent accommodation as a last resort rather than a considered care plan, and in circumstances where all scrutiny and oversight falls to the placing local authority who may have made the placement on an urgent basis with no alternatives. This may be a very vulnerable position for a young person.

 

Annex 1: Checklist produced by Ofsted to distinguish between 'care' and 'support'

Criteria

Yes?

No?

Can young people go out of the establishment without staff permission?

Supported accommodation

Care

Do young people have full control of their own finances?

Supported accommodation

Care

Do young people have control over what they wear and of the resources to buy clothes?

Supported accommodation

Care

Are young people in charge of meeting all of their health needs, including such things as arranging GP or specialist health care appointments? Are young people in full control of their medication?

Supported accommodation (note that young people may ask for advice and help on their health, but if decisions rest with the young person, the establishment is not providing care.)

Care

Do staff have any access to any medical records?

Care

Supported accommodation

Can young people choose to stay away overnight?

Supported accommodation (note that being expected to tell someone if they are going to be away overnight does not indicate providing care, but needing to ask someone's permission does.)

Care

Is there a sanctions policy that goes beyond house rules and legal sanctions that would be imposed on any adult?

Care

Supported accommodation

If the establishment accommodates both adults and young people, do those under 18 have any different supervision, support, facilities or restrictions?

Care

Supported accommodation

Are there regularly significant periods of time when young people are on the premises with no direct staff supervision?

Supported accommodation

Care

Do staff have any responsibility for aftercare once a young person has left?

Care (note that some supported accommodation services will offer some support to help young people get established in their next accommodation ? this is not care.)

Supported accommodation

Does the establishment's literature promise the provision of care or relate to specific care support provided to all residents?

Care

Supported accommodation

Does the establishment provide or commission a specialist support service, which forms part of the main function of the establishment?

Care

Supported accommodation


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1 DfE (2019) Children Looked After in England (including adoption), year ending 31 March 2019.
2 Ofsted (2018) Introduction to Children's Homes: A Children's Social Care Guide to Registration. Page 12.
3 Narey, M. (2016) Residential Care in England: Report of Sir Martin Narey's independent review of children's residential care. Page 48.
4 Ofsted (2018) Introduction to Children's Homes: A Children's Social Care Guide to Registration. Pages 4-6.
5 Crellin, R. & Pona, I. (2015) On Your Own Now: The Risks of Unsuitable Accommodation for Older Teenagers, Children's Society: London.
6 Narey, M. (2016) Residential Care in England: Report of Sir Martin Narey's independent review of children's residential care. Page 52.
7 APPG (All Party Parliamentary Group) (2019) No Place At Home: Risk Facing Children and Young People Who Go Missing From Out of Area Placements, Children's Society: London