ARTICLE 39 (R on the application of) v SECRETARY OF STATE FOR EDUCATION

A judicial review challenge to regulations restricting the use of unregulated accommodation for looked-after children under 16 was dismissed. The statutory scheme permits suitable independent or semi-independent accommodation for some looked-after children aged 16 or 17. The duty to provide care under the Children Act 1989 does not require every aspect of care to be provided in situ or by the accommodation provider. The distinction between children below and above 16 was not irrational. The public sector equality duty did not require consideration of an option which fell outside the Secretary of State’s proposal. The consultation was fair because consultees were told that the status quo for 16- and 17-year-olds would remain and were able to express views on that issue.

Article 39, a charity concerned with children living in institutions, sought judicial review of regulation 27A of the Care Planning, Placement and Case Review (England) Regulations 2010, inserted by the 2021 Regulations. Regulation 27A restricted placements in “other arrangements” under section 22C(6)(d) of the Children Act 1989 for children under 16 to specified regulated settings.

The claimant argued that unregulated accommodation was legally incompatible with the duty to provide care, that the age distinction was irrational, that the public sector equality duty required consideration of a wider ban, and that the consultation was unfair. The central issues were whether the regulations were unlawful on those grounds.

1. Ground 1(a): statutory vires. The claim that all care required by the Children Act 1989 must be provided in situ was rejected. Section 22C(6)(d) expressly provides for “other arrangements” distinct from a children’s home under section 22C(6)(c). Care under the Children Act and care in section 1(2) of the Care Standards Act 2000 are not synonymous. The latter Act contains no definition which imports the detailed Children Act concept of care. Some care needs, including education, training and health needs, may be met externally. A suitably assessed 16- or 17-year-old may therefore be placed in independent accommodation with external support.
2. Ground 1(b): irrationality. The distinction between children under 16 and those aged 16 or 17 was not irrational. The regulations do not require every older child to be placed in unregulated accommodation. Each placement remains subject to individual assessment under section 22C and the 2010 Regulations, including suitability and the most appropriate placement available. The Secretary of State had ample evidence supporting the judgment that some older children were ready for greater independence. The court was concerned with legality, not the merits of that policy judgment.
3. Ground 2: equality duty. Section 149 of the Equality Act 2010 did not require the Secretary of State to assess extending the ban to 16- and 17-year-olds when that was not part of the proposal.
4. Ground 3: consultation. The consultation sufficiently explained the proposal and the intended continuation of the existing position for older children. Consultees could, and did, respond on whether the prohibition should be extended. The responses were conscientiously considered, including concerns about safety and exploitation. The absence of a separate consultation question and the fact that a summary document was not supplied to the Secretary of State did not make the process unfair.
5. All grounds failed. The claim for judicial review was dismissed.