The Supported Accommodation (England) Regulations 2023 were made on 5 April 2023 and came into force, with some small exceptions, on 28 April. For ease of reading, I will refer to them simply as ‘the Regulations’. They are to be read alongside a Guide, issued by the Department for Education in March 2023, which is intended to provide additional detail about the scheme of the Regulations. The Regulations were subject to a consultation process but, thereafter, were made without any parliamentary debate or approval, under the Secretary of State’s powers under the Care Standards Act 2000.
Before we look at the Regulations, I think that it helps to go back into the ‘minutes of the previous meetings’ to refresh our minds about how we reached this point. Since 2010, or thereabouts, a practice had developed of local authorities placing children, as young as 12, in their care into unregulated accommodation. That accommodation could be a bedsit, hostel, caravan, boat or even a tent. Many children were sharing accommodation with adults who had significant problems of their own, such as drug abuse, homelessness and mental health problems. The then Children’s Commissioner for England, Anne Longfield, published a detailed report, Unregulated, which highlighted the realities of this, including evidence from police officers that many providers of such accommodation for children were known to be affiliated with ‘major organised crime operations’ who exploited these children for their own financial gain. Ms Longfield also highlighted examples of instances where children, settled in foster care, who were moved out by local authorities when they were 16 years old and moved, against their wishes and with little or no preparation, into bedsit or hostel accommodation, in order to free up a scarce foster placement for a younger child.
In 2021, the Government announced that, from 9 September 2021, it would be unlawful to place any looked-after child, under the age of 16 years old, in unregulated accommodation. Since the change only affected two per cent of the children in such accommodation, it was a good start, but hardly a revolution. At the time of his announcement, the Secretary of State, Gavin Williamson, said that there would be national standards for such accommodation for 16 to 17-year-olds and the Regulations are the culmination of that process.
The issue of placing children who are in the care of the local authority in accommodation which, quite explicitly, does not include any element of care — since that would make the property a children’s home and require registration as such — has been contentious from the start. Anne Longfield argued cogently that this would legitimise the practice as the norm for children of 16+ in care. Carolyne Willow, of the children’s charity Article 39, has argued tirelessly that the state must continue to provide care for the children for whom it has parental responsibility until they reach 18. Others have worried that this is a way of effectively ending care orders at age 16 for most children without any need to amend the Children Act. In response, the supporters of the changes would say that the Regulations are better for children than the environment described in Unregulated and so it should be welcomed as an improvement for many thousands of children.
It seems to me that the test is to ask whether the Regulations actually fix some of the most glaring dangers to children, that have been seen in unregulated accommodation, or whether they simply accept them and make them part of the legal structure. Rather like an auditor, I have selected some tests.
Safety and exploitation
In Unregulated, Anne Longfield set out one of the egregious failings of unregulated accommodation when (page 21) she said:
‘During this research the Children’s Commissioner was told by police about providers affiliated with major organised crime operations, which are exploiting the lack of regulation for their own gain. Police have also found staff members with criminal records working in these places, who would not have been allowed to work with children had proper checks been done. Police suspect that, in some cases, providers are abusing the DBS (Disclosure and Barring Service) system and approving staff to work there without the necessary documentation – especially in small settings which do not have quality assurance built in. Questionable management and employees not being vetted properly inevitably filters down to young people themselves. The Commissioner was informed about a young person who had been given cannabis to sell by a staff member, and a separate unregulated placement which sold cannabis from the shop below it. Intelligence suggests this is just the tip of the iceberg.’
I would hope that, at the very least, a reading of the Regulations and guidance will show that these sorts of things could never happen again.
Ofsted is currently registering those who are seeking to be approved to operate supported accommodation who will be known as a registered person or provider. They are required to meet regulation four of the Regulations the ‘leadership and management standard’. We are told that the registration, by Ofsted, is of the registered person and that the individual premises where children will be accommodated will not be individually registered. Inspection by Ofsted will only be of a representative sample of a provider’s premises.
Regulation 11 provides that the registered provider must be: (1) of integrity and good character; (2) have the capacity and appropriate skills to carry out the undertaking; and (3) provide the information in Schedule 1: essentially proof of identity, an enhanced DBS check, two written references, employment history and evidence of any relevant qualifications. There is no requirement for the registered person to have any qualifications about children or their care. Indeed, reading the Department for Education’s Guide to the Regulations, one has the impression of a fairly remote figure, far from the daily operation of the accommodation.
The commercial reality, of course, is that the vast majority of providers will be limited companies rather than single individuals. In that case, only the directors ‘involved in the carrying on of the supported accommodation undertaking’ need be of integrity and good character. No DBS checks will, generally, be required for them although they will need to provide two references, including one from their most recent employer (if any), employment history and qualifications. For directors who are (it is said) not involved in the supported accommodation undertaking, no checks whatsoever seem to be required. One director only of those involved in providing the accommodation must be notified to His Majesty’s Chief Inspector of Education, Children’s Services and Skills as the ‘nominated individual’ and they will need to have DBS checks in addition to the information required from their fellow directors.
I struggle to make sense of the distinction, in regulation 11(4)(a), between directors who are ‘involved in the carrying on of the supported accommodation undertaking’ and will have some degree of checks and those who are not so involved. It seems to be inconsistent with the Companies Acts, in terms of directors’ duties and responsibilities and so I, perhaps naively, ask what is to stop any director from voting on issues about the operation of the company’s supported accommodation properties in a board meeting? On the face of it, if a director of a company has convictions for child trafficking and supplying Class A drugs, this would not prevent the company from providing supported accommodation for children, provided that he was only concerned with, for example, the road haulage division and not overtly involved in the supported accommodation side. The overall impression is that as long as at least one ‘clean skin’ can be found to front the operation, the Department for Education and Ofsted will be quite happy with that.
There is also no mention in the Regulations about ‘shadow directors’; the corporate world’s version of puppet masters, who exercise control through nominee directors to control the company whilst keeping their name off the records of Companies House.
I come back to the quoted passage from Unregulated and ask whether supported accommodation will now be protected from being controlled by ‘organised crime operations’? The answer would seem to be that the flimsy protections in these regulations will easily be circumvented by anyone who sees an opportunity to have access to vulnerable children for exploitation. Could children be accommodated above a shop where cannabis is known to be sold? With Ofsted’s responsibilities focussed on the provider rather than the specifics of particular premises, it is not fanciful to think that the answer remains ‘Yes’.
Those seeking to defend the arrangements will, doubtless, point to Part 4 of the Regulations, dealing with the fitness of staff. Whilst regulation 17 does require all staff to be vetted and have an enhanced DBS certificate that does little more than repeat the requirements for anyone employed to work unsupervised with children. Of more concern is the very lax control of those who exercise the ultimate control of the accommodation.
Living alongside vulnerable adults
Returning to Anne Longfield’s powerful indictment of unregulated accommodation, she set out the dangers to children when they are placed in mixed accommodation for adults and children, saying:
‘Many types of unregulated provision cater for young people well beyond the age of 18. This results in 16- and 17-year-olds frequently living alongside vulnerable young adults (usually up to 25 years) battling with their own difficulties, including those struggling with homelessness, mental ill health, addiction, or even transitioning from prison back into the community. Living arrangements such as these can present additional problems for teenagers, not least because this can be an intimidating environment to live in. There are also risks associated with being around adults who may be there precisely because they cannot yet live independently safely. Where provision has different rules for different residents, such as over 18s being allowed to drink alcohol in their rooms, there is the potential for young people to be exposed to negative influences and, unfortunately, exploitation.’
I would hope that no one would seriously argue that this situation is acceptable. Therefore, we need to look at the Regulations to see where and how this has been improved. The sad fact is that there is nothing within the Regulations or the Department’s Guide to prevent these issues from continuing. In regulation two, we are told that there are four types of supported accommodation, the third type being:
‘(c) supported accommodation in a shared or group living situation in premises which are not limited to accommodating looked after children or care leavers;’
The Guide explains that, in such accommodation, the child will have their own bedroom but other facilities, such as the bathroom, kitchen and living room may be shared.
The Regulations contain a protection standard in regulation five and an accommodation standard in regulation six. The protection standard requires that the registered provider is to ensure that children ‘are protected from harm’ and that staff are familiar with the undertaking’s child protection policies but there is nothing to stop vulnerable children being placed in the same premises as adults with mental health and/or substance abuse issues. Aside from requiring that children must have a private bedroom equipped to meet their needs, regulation six does not seem to effectively deal with the situations described in Unregulated.
Hearing the child’s voice
Anne Longfield’s report sets out a further problem for looked-after children reaching the age of 16:
‘Another major problem is that many children are moved to unregulated accommodation because they have turned 16, rather than because it is in their best interests. Unregulated provision is often cheaper than other forms of residential care, plus moving 16-year-olds frees up space for younger children who need somewhere to live. When these are the considerations driving local authority decisions rather than what the child wants or what is best for them, it is no surprise that many are not ready, and the move is unsuccessful.’
She continues arguing that:
‘This trend towards moving the majority of 16-year olds into unregulated settings holds another danger, and that is the implicit acceptance that this is roughly the right age to move towards ‘independence’. This narrative might suit corporate parents which are faced with placement shortages, but it clashes with the needs of children and is at odds with parenting outside care, where parents are generally heavily involved in their children’s lives well up to and beyond them turning 18. Children in care tend to need just as much, or even more support as they get older than children living with their parents, because of what they have been through.’
As the (then) Children’s Commissioner, Ms Longfield pointed out, children moved on from foster care or a residential children’s home lose the ability to benefit from the Staying Put or Staying Close schemes.
The Regulations have nothing to say about this issue because they only become relevant once the child has been moved into supported accommodation by the local authority. The extent to which a child can successfully oppose a move into supported accommodation against their wishes will largely depend on the ability of the child’s individual IRO. There have been no changes to regulations or statutory guidance to strengthen the hand of either the child or their IRO in this situation. Children moved from foster care into supported accommodation will continue to be shut out from Staying Put.
Usually, when I sit down to write something, I will have fixed a start point and an intended destination. The task then is to plot a course between the two. In this piece, I have approached matters differently and have set out to, as fairly as possible, appraise and test these Regulations as a viable solution to a clearly identified problem about how the State looks after children committed into its care. Unregulated set out serious concerns, based on carefully obtained evidence and so I wanted to know whether those threats to children’s safety and welfare had been resolved. This section was the last part to be written because I did not know in advance what I would find.
What I have found is that the same issues, identified by Ms Longfield, remain. All that we have done is to give unregulated accommodation a new name, clothe it with Government approval and make it a respectable part of the care system.
The Regulations reflect the essential weakness of the Government’s economic bargaining position and political investment in children. The best solution, for the individual children, would have been, as was done for under 16’s, to ban the placement of looked-after children in anything other than foster care or a registered children’s home. The result, of course, would have been several thousand young people, suddenly returning from unregulated placements and needing accommodation when the unregulated providers closed down. The Government has nowhere to put them. We are used to thinking in terms of the best interests of the child but that is not the mindset behind the Regulations which seems to be exclusively focussed on political and economic expediency.
Photo 'The Corpse Road' (c) Rodney Noon