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

The claimant challenged Regulation 27A of The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 on public law grounds. The principal legal issues were (1) whether unregulated placements are incompatible with the Children Act 1989 and the Care Standards Act 2000, (2) whether the distinction in the 2021 Regulations between children under 16 and those aged 16–17 was irrational, (3) whether the Secretary of State complied with the public sector equality duty in s.149 of the Equality Act 2010, and (4) whether the consultation process was unlawful.

The court rejected an argument that the CA 1989 requires all care for looked after children to be provided in situ so as to make unregulated placements unlawful: the statutory schemes use the term "care" differently and Parliament plainly provided for "other arrangements" under s.22C(6)(d). The court held that the Secretary of State's decision to prohibit unregulated placements for under 16s but to allow them for some 16 and 17 year olds was not irrational; there was sufficient evidence and legitimate policy judgment to justify the distinction. The court also held that the PSED did not require consideration of an option outside the consulted proposal and that the consultation complied with the Gunning principles. The claim for judicial review was dismissed.

The claimant Article 39, a charity advocating for children in institutions, sought judicial review of Regulation 27A of the 2021 amendment to The Care Planning, Placement and Case Review (England) Regulations 2010. The claimant sought quashing of the Regulations and a declaration of unlawfulness, arguing mainly that unregulated placements are incompatible with the Children Act 1989 and that it was irrational and unequal to allow such placements for 16–17 year olds while banning them for younger children. Additional grounds alleged failure to comply with the public sector equality duty (s.149 Equality Act 2010) and unfairness in the consultation process.

The court framed the issues as: (i) the legal relationship between the CA 1989 care/placement regime and the Care Standards Act 2000 definition of a children’s home (ground 1(a)), (ii) whether the differential age cut-off in the 2021 Regulations was irrational (ground 1(b)), (iii) whether the PSED required assessment of extending the ban to 16–17 year olds (ground 2), and (iv) whether the consultation process was unlawful because it failed to consult on the discarded option and did not conscientiously take consultees’ views into account (ground 3).

On ground 1(a) the court found that the CA 1989 and the CSA 2000 use "care" in different statutory contexts and that Parliament clearly intended s.22C(6)(d) to permit "other arrangements" distinct from registered children’s homes. Unregulated placements can lawfully be used for some looked after children whose needs are met by external services rather than in‑situ care. On ground 1(b) the court applied a restrained intensity of review, accepted that evidence and reasoned ministerial judgment supported distinguishing under 16s from older children and concluded the distinction was not irrational. On ground 2 the court followed authority that the PSED does not require a decision-maker to consider options that were not part of the proposal consulted on or considered by ministers. On ground 3 the court held the consultation met the Gunning criteria: consultees were able to respond intelligibly about the policy, the analysis of responses was adequate and the ministerial briefings reflected the core issues raised by young people and stakeholders. The court therefore dismissed the judicial review and refused the remedies sought.

The claim for judicial review is dismissed. The court held that (1) unregulated placements are not necessarily incompatible with the Children Act 1989 or automatically to be treated as children’s homes under the Care Standards Act 2000; (2) the distinction in the 2021 Regulations between children under 16 and those aged 16–17 was supported by evidence and lawful policy judgment and was not irrational; (3) the public sector equality duty did not require consideration of the alternative of extending the ban to 16–17 year olds where that was not a proposed option; and (4) the consultation process complied with the Gunning principles and had been conscientiously taken into account.