A judicial review application to ban the use of unregulated accommodation for 16 and 17 year olds has been dismissed by the High Court.
The government banned the use of unregulated establishments, which provide accommodation but limited or no support for children in care, for those under 16 in September last year.
But children’s rights charity Article 39 has taken legal action against the Department of Education, calling for a judicial review of the government’s ‘failure’ to extend the ban to ensure that young people receive mandatory care until the age of 18.
This appeal was dismissed by the High Court.
Article 39 claimed in a High Court hearing that it is “irrational” to make a distinction between children over and under 16 years of age.
But the High Court says the government has “been entitled to consider that there are children aged 16 or over for whom independent or semi-independent care is appropriate”.
A claim that the government breached a ‘public sector equality duty’ set out in the Equality Act for failing to enforce the ban on under-18s was also dismissed by the High Court. She stated that this obligation did not apply in this case.
Another Article 39 claim, that the government failed to investigate the possibility of extending the ban to 16- and 17-year-old placements, was also rejected.
“It was found by the court that the defendant was under no specific duty to seek advice on an option that was not part of the government’s proposals,” the court documents state.
Article 39 lawyer Oliver Studdert said the charity would seek to appeal the decision.
“This is an incredibly sensitive area that affects thousands of vulnerable 16 and 17 year olds,” he said.
“My client is very disappointed with this ruling and remains firmly of the view that the decision not to extend the ban on unregulated accommodation to 16 and 17 year olds was unlawful.”
Section 39 Director Carolyne Willow added: ‘This is a very shocking judgment because of the profound implications for children in care.
“There is no doubt that children will continue to be placed in totally unsuitable accommodation.
“Ministers have been pressured to act due to growing evidence of the harms suffered by children in care living in properties that circumvent ordinary standards of care.
“Instead of protecting all children, they have 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 remain without care at home.
We are truly sorry to bring this news.
The High Court ruled that there was no discrimination in legal protection based on age for children in care.
The judge denied our request for appeal. We intend to renew this claim with the Court of Appeal. #KeepCaringTo18https://t.co/RCnpe715GG
— Article 39 (@article_39) March 16, 2022
Last December it emerged that Ofsted would be oversee unregulated supported housing for 16-17 year olds under a new set of mandatory national standards from 2023.
“We will only ever accept good providers who offer accommodation and support at the required level,” Education Secretary Nadhim Zahawi said.
A spokesperson for the Department for Education said: ‘We welcome this decision which notes that the department has acted in a fair and lawful manner. At every stage of our reforms, we have prioritized the safety and well-being of these vulnerable young people, who deserve to live in a setting that meets their needs and protects them. Councils have a duty to ensure that this is the case for all children in their care.
“We have already banned the placement of under-16s in unregulated services and are introducing mandatory national standards and Ofsted inspection at providers of such placements. The Independent Child Care Review will also respond to growing pressures on the care system.