By Tim Spencer-Lane

The Children’s Wellbeing and Schools Bill was introduced in Parliament on 17 December 2024.

Part 1 of the bill contains reforms to children’s social care. Part 2 makes provision relating to education in England. Most of the social care reforms were foreshadowed in the policy paper, ‘Keeping children safe, helping families thrive’, which was published in November 2024.

This article summarises the main provisions that will impact on social workers.

Family group decision making

The bill would add a new section to the Children Act 1989 to impose a duty on local authorities who are considering making a court application for a care or supervision order, to offer a family group decision making (FGDM) meeting to the child’s parents or any person with parental responsibility for the child.

The purpose of the FGDM meeting is to enable a child’s family network to meet to discuss the welfare needs of the child and to make a proposal in response to concerns about the child’s welfare.

The duty does not apply if the local authority determines that it would not be in the child’s best interests.

Child protection and safeguarding

Safeguarding partners

The bill seeks to amend the Children Act 2004 to make it a requirement for the three safeguarding partners (the local authority, NHS integrated care board and police) in each local area to include education and childcare “relevant agencies” as mandatory participants in their multi-agency safeguarding arrangements. Currently, safeguarding partners only need to make arrangements to work with a “relevant agency” if they consider it appropriate to do so.

Multi-agency child protection teams

The bill would insert new sections into the Children Act 2004 to require safeguarding partners to establish and run at least one multi-agency child protection team in their area. The main purpose of these new teams is to support the local authority in delivering its child protection duties under section 47 of the Children Act 1989.

ICBs will be required to nominate a health professional with experience in relation to children’s health, while the police will be required to nominate an officer to be part of each multi-agency child protection team. The local authority is required to nominate someone with experience in education in relation to children and a social worker with experience in relation to children, and may appoint other appropriate individuals after consultation with safeguarding partners.

Information sharing

The bill would also amend the Children Act 2004 to impose a duty on specified persons and bodies to disclose information that may be relevant to safeguarding or promoting the welfare of a child, to other relevant persons in certain circumstances. The duty applies where the person considers that the disclosure may facilitate the exercise by the recipient of any of its functions that relate to safeguarding or promoting the welfare of children, unless disclosure would be detrimental to the child.

The duty to share information will apply to persons listed in section 11(1) of the Children Act 2004, including local authorities, ICBs, NHS trusts/foundation trusts, police forces, probation services and youth offending teams, along with education and childcare “relevant agencies”.

Consistent child identifier

The bill also makes provision, under the Children Act 2004, for a consistent child identifier (also known as a single unique identifier or SUI). Designated persons must include the consistent identifier when processing information about a child for safeguarding and promotion of welfare purposes.

Support for children in care or kinship care, and those leaving care

Kinship local offer

The bill would amend the Children Act 1989 to require local authorities to publish information about their general approach to supporting children in kinship care and kinship carers in their area, as well as financial support which may be available to them in their area (the “kinship local offer”).

Local authorities must take such steps as are reasonably practicable to ensure that children in kinship care and kinship carers receive the information in the kinship local offer.

Supporting educational achievement

Under amendments to the Children Act 1989, local authorities would be required to take appropriate measures to support the educational outcomes of children in need and children in kinship care.

The steps that can be taken under this duty include enabling children to overcome barriers to their educational achievement and improving educational attendance. The duty is a strategic duty, which does not extend to the educational outcomes of individual children.

The local authority must appoint at least one person to discharge the duty (in practice this is usually the virtual school head).

Supporting care leavers

The bill would also introduce a new provision in the Children Act 1989 to require each local authority to consider whether each former relevant child (up to age 25) requires “staying close support” and where their welfare requires it, to offer that support.

“Staying close support” is support to assist the former relevant child: (1) to find and keep suitable accommodation and (2) to access services relating to health and wellbeing, relationships, education and training, employment and participating in society. Support means the provision of advice, information and representation.

There are also amendments to the Children and Social Work Act 2017 to require each local authority to also publish the arrangements it has in place to support and assist care leavers in their transition to adulthood and independent living.

Accommodation of children

Regional co-operation

The bill seeks to amend the Children Act 1989 to give the secretary of state powers to direct two or more local authorities to make regional co-operation arrangements to carry out their functions in relation to the accommodation of looked after children.

The arrangements could be: (1) to carry out their strategic accommodation functions jointly, (2) for those functions to be carried out by one of the local authorities on behalf of the others or (3) for a corporate body, of a kind that may be specified in the secretary of state’s direction, to support them in carrying out those functions.

Deprivation of liberty

The bill also includes a number of changes to section 25 of the Children Act 1989. It would change the references from “restricting” liberty to “depriving” children of their liberty, to better reflect the nature and purpose of this section.

The bill would also provide for the authorisation of the deprivation of liberty of children in alternative placement types beyond just a secure children’s home. It brings within the scope of section 25 accommodation provided for the purpose of care and treatment of children that is capable of being used to deprive a child of their liberty (“relevant accommodation”).

The secretary of state would have powers to set out in regulations: (1) the maximum period for which a child may be kept in relevant accommodation both with and without the authority of a court, (2) the cohort of children who may be placed in relevant accommodation, and (3) a description of the alternative accommodation.

Currently, many children are being deprived of their liberty outside of a statutory framework, via the inherent jurisdiction of the High Court.

The government’s intention is to “provide an alternative statutory route to authorise the deprivation of liberty of a child in a more flexible form of accommodation, bringing more deprivation of liberty cases under a statutory framework via section 25, including its criteria for access, mandatory review points and parity with [secure children’s homes] in terms of access to legal aid”.

Regulating provider groups

The bill would give new powers to Ofsted in relation to parent undertakings (ie where more than one setting is owned or controlled by the same private or voluntary provider group).

The bill seeks to place a duty on parent undertakings to develop and implement an improvement plan where Ofsted have identified quality issues in multiple settings and reasonably suspects there are grounds for cancellation of registration in relation to those settings.

Should parent undertakings not comply with these requirements, Ofsted will have the power to issue an unlimited monetary penalty.

Tackling unregistered children’s homes

The bill also includes new powers for Ofsted to impose monetary penalties for breaches of the Care Standards Act 2000, including for operating unregistered children’s homes. This is designed to give Ofsted a quicker alternative to prosecution in these cases.

Financial oversight regime

The bill would also introduce a financial oversight regime for relevant children’s social care providers who meet conditions that will be set out in regulations. These are likely to relate to the size of the provider and whether it would be difficult to replace were it to fail.

The bill would give the secretary of state the power to require providers made subject to the regime to submit a “recovery and resolution plan”, setting out risks to their financial sustainability and actions they propose to take in response to these.

The secretary of state would also have the power to arrange an independent business review of a provider where there is significant financial risk to its sustainability. The secretary of state would also be under a duty to warn local authorities if there was a real possibility of relevant services failing, with potential adverse effects for the councils or any children looked after by them.

Limiting profits

The bill also provides for regulations to be made enabling the secretary of state to cap any profit made by a non-local authority registered children’s social care provider. The secretary of state may only make such regulations if satisfied that it is necessary to do so.

The government has said that it only intends to use the provision if other policies do not sufficiently reduce profiteering in the children’s social care placements market.

Agency workers

The bill seeks to provide a power for the secretary of state to make regulations applying to all English local authorities on the use of “agency workers” in children’s social care. The regulations may require that the agency workers meet certain requirements and make provision about how they should be managed and the terms on which they are supplied to local authorities.

When in force, this regime would replace the rules, introduced in 2024 under statutory guidance, regarding local authorities’ use of agency social workers in children’s services.

Ill-treatment or wilful neglect

This bill also intends to close a gap in existing legislation by extending the offences of ill-treatment or wilful neglect by a care worker or care provider to someone in their care, under the Criminal Justice and Courts Act 2015, to children aged 16 or 17 in regulated establishments in England.

Currently, the 2015 act protects against ill-treatment or wilful neglect by care workers providing health care for an adult or child or social care for an adult, while the Children and Young Persons Act protects those under 16 from cruelty by those who have responsibility for them.

Children not in school

The bill proposes a number of reforms aimed at protecting children who are being educated at home. Most of these involve amendments to the Education Act 1996 and include:

• Compulsory registers of children not in school in each local authority area in England, and a duty on local authorities to support the children on their registers (should a parent request this).
• Changes to the school attendance order (SAO) legal framework, for example, by introducing statutory timeframes for issuing and processing SAOs and making it an offence for parents to withdraw a child subject to an SAO from school without following the proper procedure.
• A requirement for a parent to obtain local authority consent to home educate if a child is: (1) subject to an enquiry under section 47 of the Children Act 1989, (2) on a child protection plan, or (3) at a special school or academy.
• A power for the local authority, in cases where a child is subject to a section 47 Children Act 1989 enquiry or on a child protection plan and is already being home educated, to review whether it is in the best interests of the child to be in school and require that the child be registered at a school.
• A duty for local authorities to consider the home environment and other learning environments when determining whether or not such children should be required to attend school.

What happens next?

The bill will be subject to debate in Parliament and will no doubt be amended during its passage. It is likely to become law sometime in spring 2025.

Some provisions will come into force the day the act is passed (such as the powers to make regulations and orders), others will come into force two months later (such as the duty to publish information for kinship carers and children in kinship arrangements, and the extension of the ill-treatment or wilful neglect offences.

Some provisions will be implemented over a longer period of time. For example, the new multi-agency child protection teams will not be implemented until 2027.

Tim Spencer-Lane is a lawyer specialising in social care, mental capacity and mental health and is legal editor of Community Care Inform.

There has been an almost sevenfold increase in the number of children placed in unregistered homes in England over the past three years, Ofsted data has shown.

The number placed in confirmed unregistered children’s homes rose from 147 in 2020-21 to 982 in 2023-24. Over that time, the number of such homes identified by Ofsted increased from 144 to 931.

[Source: Ofsted (2024) Unregistered children’s homes]

Unregistered homes ‘typically of poor quality’

It is illegal to provide care and accommodation to a child without registering as a children’s home, and any provider that does not register is committing an offence, which generally triggers a warning letter from the regulator.

The increased use of registered placements comes despite Ofsted finding that they were typically of “poor quality”. This was evidenced by the fact that just 6% of unregistered settings applied to register with Ofsted after receiving a warning letter, with a mere 8% of these applications being approved.

Deprivation of liberty orders

One factor behind the rise in the number of unregistered placements is councils’ increasing use of deprivation of liberty orders – obtained from the High Court – for children with very complex needs or at high risk.

Many of these young people are placed in unregistered placements because of the lack of alternatives, including the severe shortage of secure children’s homes.

However, while Ofsted recorded a rise in the number of children on deprivation of liberty orders placed in unregistered settings, they accounted for just 12% of cases in 2023-24 and 15% in each of 2022-23 and 2021-22.

‘An indictment of the state of social care’

As a result, the increase in the use of unregistered homes is likely to reflect the lack of available placements for looked-after children more generally. This is the result of factors including the falling number of mainstream fostering households, the mismatch between the location of children’s homes and need, and the historically high numbers of children in care.

Children in care charity Become described the rise in the use of unregistered homes as “a real indictment of the current state of children’s social care”.

Chief executive Katharine Sacks-Jones said it meant that “hundreds of children who’ve experienced trauma are not being provided with the specialist, quality care they need, and instead are living in illegal and often completely unsuitable accommodation with limited support”.

Proposals to help Ofsted crack down on unregistered homes

The news comes with the government having announced plans for Ofsted to take swifter enforcement action against providers of unregistered placements.

Under these, the regulator, which has welcomed the proposals, would be given powers to fine providers, as an alternative to criminal prosecutions.

Sacks-Jones added: “The government’s recent proposals to address the issue of unregistered homes is welcome, but this latest data shows how urgently and robustly the government must act.

“We must see stronger scrutiny and enforcement so that all children are able to live in safe homes and receive the high-quality care and support they need to thrive.”

ADCS voices concerns over government plan

However, the proposals sparked concerns from Association of Directors of Children’s Services president Andy Smith, in his speech to last week’s National Children and Adult Services Conference.

“In an ideal world, we would want all placements to be in good quality registered settings, yet the reality is that the current framework of regulation does not allow us to effectively meet the needs of some of our most vulnerable children who have highly complex needs,” Smith said.

“Before we start to turn the dial in the wrong direction and issue civil proceedings against providers, we need to make sure that we have the right services in the right place to meet need.”

The government will legislate to create a new type of accommodation for children with complex needs in England who are at risk of being deprived of their liberty.

The placement type will be for children who may need to be deprived of their liberty at times, but will provide for restrictions to be increased and decreased according to need.

It will be distinct from secure children’s homes and not suitable for those who need to be placed in SCHs, which are specifically designed to restrict children’s liberty.

The pledge, announced in this week’s social care policy paper, is in response to the huge rise in the number of children made subject to deprivation of liberty (DoL) orders under the inherent jurisdiction of the High Court – its backstop power to protect vulnerable people.

The orders have been used in relation to children with needs including severe mental health issues, significant trauma, autism, learning disabilities or being subject to, or at risk of, criminal or sexual exploitation.

For many children, they have involved moving into unregistered placements, without Ofsted’s regulatory oversight, severe restrictions on their movement and access to technology and contact, constant supervision, often by multiple staff members, and experiences of restraint.

The rise in DoL numbers has been driven by a lack of appropriate placements to meet their needs, whether in open or secure children’s homes or specialist tier 4 child and adolescent mental health services (CAMHS), and a reported reluctance from registered providers to admit them.

A new placement type

The Department for Education (DfE) said there was a need for “new forms of provision” to address the “gap” in supply for  children currently subject to DoL orders.

Photo: IQoncept/Adobe Stock

It said it would amend legislation to enable councils to place children in a new type of accommodation, which could “respond more flexibly to their changing and fluctuating needs”, reducing restrictions when safe to do so, as well as providing “crucial therapeutic care”.

The legislation would set “clear criteria for when children may need to be deprived of liberty and mandatory review points to ensure that no child is deprived of liberty for longer than is required to keep them safe”.

Secure accommodation orders

The statutory framework for the new placement type will be distinct from secure accommodation orders, which provide the legal basis for councils to place looked-after children in SCHs.

Section 25 of the Children Act 1989 provides that children may only be so placed if:

1. They have a history of absconding, would abscond from non-secure accommodation and, if they absconded, would be likely to suffer significant harm, or
2. They would likely injure themselves or others if placed in non-secure accommodation.

Not a solution to shortages of secure home placements

The DfE said its proposed new accommodation type would be for children whose needs cannot be met in an SCH, which means it would not provide a solution to the severe shortages of secure home places.

Ofsted has previously said that 50 children are waiting for an SCH place at any one time, while research last year by the Nuffield Family Justice Observatory found that, in 10% of DoL applications, it was explicitly stated that a secure home placement would have been preferable, but was not available.

England currently has 13 SCHs, with new or replacement provision due to be developed in London and Lincolnshire.

Experiences of children subject to DoL orders

The proposal responds to a key recommendation from a DfE-commissioned report from the Children’s Commissioner for England, Rachel De Souza, which examined the experiences of 15 children with experience of DoL orders.

Children’s Commissioner for England Rachel de Souza (credit: Office of the Children’s Commissioner)

The report, also published this week, found that the children had experienced significant instability in the support they received, before being made subject to a DoL.

This included frequent changes of placement and social workers, with the lack of consistent relationships being to the detriment of their mental health.

They experienced further trauma from the experience of separation from family and friends, changes in caregivers, isolation, restrictions and restraints while under the DoL orders.

Also, most of the children reported having limited opportunities to have their voices heard and be involved in decisions while under the order.

Commissioner’s recommendation for new placement type

The commissioner recommended the the government establish a new statutory framework for deprivation of liberty in an Ofsted-registered home that was not an SCH. This should make clear that:

• Deprivation of liberty should only be authorised when it is necessary for children’s safety and welfare and not because of a shortage of appropriate accommodation.
• There should be judicial oversight for any deprivation of liberty and any authorisation must be reviewed every three months.
• The child should automatically be a party to any deprivation of liberty proceedings, meaning they are represented by a Cafcass guardian.
• Children should have the opportunity to share their views with the judge as part of the deprivation of liberty process and should be supported to do so in a way that is comfortable for them.
• The education secretary and Ofsted must be notified of any deprivation of liberty application where the child is not in a registered home.
• Children deprived of their liberty should have access to advocacy, including non-instructed advocacy as needed.

‘Far fewer should be deprived of liberty’

However, the commissioner also called for action to ensure far fewer children were deprived of their liberty. This should involve “radical investment in creating new and safe places for children to live in registered children’s homes which can provide safe accommodation and therapeutic support for children living with trauma and at risk of harm”.

On this point, the DfE said that, in partnership with NHS England, it would pilot a new, community-based approach to delivering “specialist care and accommodation for children who have complex needs”, with input from social care, health, education and justice professionals.

This will be tested by the South East Regional Care Co-operative, one of two areas piloting the regionalised commissioning of care placements.

The DfE said the approach “has the potential to reduce both local authority reliance on costly unregistered placements and immediate and lifetime costs to the health and justice systems”.

Ofsted gives backing in principle

Ofsted’s national director for social care, Yvette Stanley, said the regulator backed the plan for a new placement type “in principle”, but warned that “how it is implemented will be critical to its success”.

Yvette Stanley, Ofsted’s national director for social care

“Any deprivation must be the least restrictive option possible and support children’s transitions to their next stage,” she added.

Stanley also said that Ofsted was looking to make changes to its social care common inspection framework, which governs its regulation of sector providers.

This was with a view to “[removing] any barriers that Ofsted may create, perceived or otherwise, to providers working with children with multiple and complex needs”.

A “worrying” number of looked-after children and care leavers have been wrongly placed in supported accommodation, Ofsted’s social care chief has warned.

Yvette Stanley said that inspectors had encountered young people who were “clearly in need of a higher level of care than supported accommodation is equipped to provide” in visits to the settings.

In a blog post published last week, the regulator’s national director for social care added that, in some cases, supported accommodation providers were, in effect, operating as unregistered children’s homes by straying outside the terms of their registration with Ofsted.

Previously unregulated placements

Supported accommodation is similar to what was previously referred to as semi-independent provision for looked-after children.

However, unlike its predecessor, it is regulated when provided to 16- and 17-year-old children in care and care leavers. Providers, who have been required to register since October 2023, may not admit children under 16.

The introduction of regulation is the former Conservative government’s chief response to longstanding concerns about the safety and suitability of provision for young people in what were unregulated settings, including the placement of some in barges, caravans or even tents.

Comparisons with children’s home regulations

However, the new regulatory regime is relatively light touch, with Ofsted regulating providers as a whole, no mandatory qualifications requirements for registered managers or staff and organisations expected to meet four standards and deliver ‘support’, but not ‘care’.

By contrast, children’s homes are regulated at an individual service level, their registered managers and staff must have, or be working towards, defined qualifications, they must meet nine standards, and their core regulatory purpose is to deliver care, along with accommodation.

As a result, the reform was widely criticised by campaigners for looked-after children on the grounds that it created a “two-tier system” that left many 16- and 17-year-olds without the care they needed. They also warned that supported accommodation would become, in effect, the default, for older teenagers in care.

Their fears appear to have been at least partially borne out by Stanley’s comments.

‘Worrying’ number of children wrongly placed

“Many providers are delivering well-targeted and appropriate support to young people who are ready for more independence and responsibility and do not require additional care,” she said.

“But we are also encountering a worrying number of children who should not be in supported accommodation.”

Stanley pointed to guidance on the 2023 supported accommodation regulations. which states that the setting caters for “children aged 16 and 17 who have relatively high or increasing levels of independence, who are ready to gain further skills in preparation for adult living, and who do not need or want the degree of care or type of environment provided in a children’s home or foster care”.

While she said supported accommodation services who temporarily provided young people with ‘care’ when they needed it would not usually be straying outside the terms of their registration, some were going beyond this.

Services ‘acting as unregistered children’s homes’

“Increasingly, we have begun to hear the use of terms such as ‘higher needs support’ or ‘high support’, which stretch the parameters of supported accommodation too far,” added Stanley.

“In some cases, it means that providers are operating unregistered children’s homes and that children are not getting the care they need from people who are suitably skilled and qualified.”

She said that Ofsted expected supported accommodation providers not to admit children if:

• they had high or complex needs;
• their liberty was restricted;
• they needed a high level of ongoing care and supervision, possibly requiring high staffing levels;
• they required help and support with personal care;
• there was no realistic expectation for increased independence in the foreseeable future.

More providers than expected

While there had been concerns from council leaders that the regulation of supported accommodation would lead to a reduction in provision, Stanley said Ofsted had received “far more applications” to register than expected: more than 1,300 as of the beginning of July, with 400 providers now registered.

She warned that the sector may have become too big in order to compensate for gaps in provision for looked-after children elsewhere.

“The high (and growing) number of 16- and 17-year-olds in supported accommodation should give us all cause for concern that, as a result of gaps in provision elsewhere, too many children are being pushed towards an independence for which they are not properly prepared,” she added.

Ofsted ‘will not hesitate’ to act

Stanley warned that, where providers were breaching the terms of their registration, Ofsted would act.

This could include supporting providers to become suitably registered, however, she added: “When we have immediate concerns for the safety and welfare of children, we will not hesitate to take more urgent and serious action.”

Under the terms of Ofsted’s enforcement policy, this could include imposing a condition prohibiting a supported accommodation provider from delivering a service at particular premises.

Social worker shortages are making an already challenging job ‘unsustainable’ for some practitioners, Ofsted has warned in its annual report for 2021-22, published today.

The inspectorate said problems recruiting and retaining staff were arguably the biggest challenges facing children’s social care and one that had got worse since the pandemic.

It pointed to Department for Education figures showing 8.6% of full-time equivalent local authority and children’s trust social workers left the statutory sector altogether in the year to September 2021, up from 7.2% the previous year.

While the same figures showed that a further 2.6% had moved into agency work during the same period, up slightly on 2.2% the previous year, the inspectorate echoed findings from the Association of Directors of Children’s Services in saying this was a significant issue for authorities.

“Many social workers are moving into agency work, as this gives them greater flexibility and higher pay than local authorities can offer,” it said. “As a result, local authorities find they cannot recruit directly and are forced to turn to agencies at a higher cost.”

Agreed workloads for agency staff ‘reducing capacity’

The report also said agency workers often had agreed terms and conditions, including in relation to workloads, which, when combined with their additional expense to authorities, had the potential to lower departments’ headcount and capacity.

The inspectorate warned: “Staff shortages are creating significant challenges for the workers who do remain in the sector. Workloads are high and the demands of an already challenging job can become unsustainable.

Ofsted also joined directors in raising the issue of councils employing teams of agency staff, which it said was “distorting the workforce”. In July, ADCS president Steve Crocker called for social work agencies to be regulated or banned outright, citing in particular, the practice of agencies restricting the supply of staff to teams, rather than individual workers. Crocker said this was driving up prices and constituted “profiteering”.

Agency leaders have strongly pushed back against this charge, saying they made a strong contribution to the sector and that the ADCS should be working with them to deliver better value for the taxpayers while also improving pay and conditions for social workers and other care staff.

However, Crocker told Community Care recently that the Department for Education was preparing reforms to regulate agency social work in its response to the Independent Review of Children’s Social Care, which recommended such action. The response is due early in the new year.

Concerns over impact of remote social work

In its annual report, Ofsted also repeated previous concerns, including in relation to agency staff, about working arrangements that allowed practitioners to work far from home and spend relatively little time in their employer’s local area.

“Social workers can now choose to work for a higher salary, with a better work–life balance, for a local authority further away,” it said. “They therefore do not have the same local knowledge as staff based in the area.

“This can affect the quality of relationships with children and the sense of ownership about what is going on in the local area. Although staff may like working from home, local authorities should not underestimate the importance of face-to-face contact and access to support and advice from peers and managers.”

Workforce issues were also afflicting children’s homes, found the regulator, with high vacancy rates – particularly among managers – and turnover affecting quality of care.

Ofsted said vacancy rates for registered managers had risen from 9% to 14% in the three years to August 2022, while, at the same time, a third of home managers were new in post.

Meanwhile, in the year to March 2022, 35% of permanent children’s home staff left their posts, while 44% of permanent staff were newly hired.

Turnover ‘creating instability for children’

“This very high turnover creates instability for children in care, as it reduces the chances of building relationships, which are important for well-being, stability and belonging,” said the report.

Staff shortages, management turnover and a lack of skills among care workers were significant reasons for 9% (43) of the 480 children’s homes inspected for the first time during 2021-22 receiving an inadequate rating. While this percentage was in line with previous years, the number of homes receiving a first inspection was more than double annual totals in the past.

As of 31 August 2022, 81% of children’s homes were rated outstanding or good, up from 79% a year earlier.

As it has done in many previous reports, Ofsted raised significant concerns about the sufficiency of placements for children in care, particularly those with complex needs.

It said that in March this year, 50 children who posed a risk to themselves or others were waiting for a bed in a secure children’s home every day, double the number from the previous year.

Use of unregistered placements

Such children were often placed, illegally, in unregistered children’s homes, often under deprivation of liberty orders granted by the High Court, whose number have risen sharply in recent years. These orders are also used for children who do not meet the criteria for a secure accommodation order under section 25 of the Children Act 1989 or for detention under the Mental Health Act 1983.

Ofsted said it investigated 595 cases of possible unregistered accommodation in 2021-22 and found that 92% should have been registered. Most of these have since received warning letters.

While councils sometimes used unregistered provision because they needed accommodation immediately, Ofsted said placing children in unregistered provision could put them at risk of harm, because there was no regulatory oversight of the suitability and experience of the adults, the building or the arrangements.

Another factor in such placements, it said, was that providers were sometimes reluctant to take children who, for example, had been involved with crime or had been criminally exploited, for fear of being downgraded by Ofsted. This fear was cited by providers in response to the Children’s Homes Association’s regular “state of the sector” survey.

However, Ofsted said there was no link between ratings and the type of needs homes catered for, and that homes should be clear, in their statements of purpose, about which children they can care for.

It added: “The best homes do this well and can provide care to children with the most complex needs.”

The number of unregistered children’s homes identified by Ofsted more than doubled from 2020-21 to 2021-22, the regulator has revealed.

In in its annual children’s social care data report, published last week, Ofsted said it had found 292 settings that should have been registered as children’s homes following investigation in 2021-22, up from 136 in 2020-21. The 2020-21 figure was itself significantly up on the previous two years.

Number of settings found to be unregistered children’s homes by Ofsted (2018-19 and 2019-20 figures are approximate)

At the same time, the number of children waiting for a bed in England’s 13 secure children’s homes each day has doubled from 25 to 50, according to figures supplied to Ofsted by the Secure Welfare Coordination Unit, which administers placements.

Ofsted’s report also showed an increase in the number of children’s homes actively registered to provide one bed, from 106 to 164, between 2020-21 to 2021-22.

All three trends illustrate the scale of the pressures on councils to find placements for children who need secure or specialist care because of the complexity of their needs or the risks they face – for example, from exploitation.

462% rise in deprivation of liberty orders

The lack of beds for children who meet the criteria for a secure order under section 25 of the Children Act has forced councils to, increasingly, seek court orders to deprive of them of their liberty in other settings. These rely on the inherent jurisdiction of the High Court to protect children where no statutory provision is available.

The number of such deprivation of liberty (DoL) orders – which are also sought for children who do not meet the section 25 criteria – rose by 462% from 2017-18 to 2020-21.

These often involve setting up bespoke placements that – because they provide accommodation with care – are legally required to be registered as a children’s home. The courts will only authorise such unregistered placements in an emergency and if providers are taking steps to secure registration with Ofsted.

The regulator said that most of the 292 settings it identified as unregistered homes in 2021-22 had been sent warning letters though some will have stopped operating.

More single-bedded homes

Single-bed children’s homes are also used as an alternative to secure care. The number of registered single-bed homes underestimates the number of children living in solo placements as it excludes those placed in larger homes where all other beds are empty.

Responding to the data, Association of Directors of Children’s Services vice president John Pearce said it illustrated the challenges local authorities faced in finding – often at short notice – secure placements for children “in extreme distress”.

He said there had been an increase in the number of children with substantial mental health needs in this group, which Pearce suggested may have been caused by reductions in tier 4 Camhs beds for children in the most acute need.

“Where a secure placement cannot be found or the young person’s needs are so severe they are unable to live with other children, a single bedded children’s home has become the only option,” he added.

However, he said that, while matching children and young people together in multi-bed homes was critical, “so is ensuring that children and young people have the opportunity to develop and nourish positive peer relationships as this is in their best interests”.

Concerns over smaller settings

Yvette Stanley, Ofsted’s national director for social care, voiced similar concerns about growing numbers of single-bed placements and vacancies in larger homes, at last week’s ADCS annual conference.

“We no doubt need smaller homes to meet the needs of children who need two or three to one support, a low sensory environment and who might struggle with the needs and behaviours of others,” she said.

However, she said she was worried about “perhaps creating too many single child homes, where some safeguards may be more difficult to deliver and where the loss of social interaction with peers in the longer term may cause different harm”.

Stanley also raised concerns about children’s homes carrying vacancies because of the “pursuit of the perfect match”, which was pushing up costs for local authorities.

‘A risk-averse approach’

She said some providers were concerned about the consequences for their inspection rating of taking children with particularly complex needs – despite inspectors’ focus being on how those needs are met.

“I am hearing more often of providers looking to move children of a particular need on, and local authorities competing financially for one empty place,” she told the ADCS conference. “The numbers and needs have increased, and yet we see places held vacant.”

She added: “We don’t want to see a risk-averse approach that leaves children with the most complex needs less likely to receive the kind of care they need.”

Stanley’s warnings about vacancies chime with the findings of a survey of providers, published last month by the Independent Children’s Home Association.

This found homes were prioritising good matching over occupancy, amid concerns over their ability to meet children’s increasingly complex needs, given the need to safeguard their other young people.

They also cited concerns about putting their Ofsted rating at risk, councils’ increasing requirement for solo-placement homes and a lack of suitable staff, which Stanley also referred to in her speech.

Mismatch of home locations and need

Meanwhile, a separate Ofsted report issued last week found a mismatch between the location of children’s homes, the provision they could offer, and children’s needs.

While a quarter of children’s homes were in the North West, and 19% in the West Midlands, councils from these regions were responsible for placing 19% and 12%, respectively, of children in homes, as of March 2020.

By contrast, London housed 5% of homes but the capital’s authorities placed 11% of children.

Disparities were also apparent in relation to homes’ ability to meet certain needs. For example, while having a quarter of homes overall, the North West had only 18% of homes catering for autistic children.

Overall, the roughly 6,000 young people in homes were placed an average of 36 miles from where they lived prior to coming into care – compared with 13 miles for those in foster care. The average distance was higher for those placed in homes that could meet the needs of children with mental health needs (44 miles) and those who could accommodate children who had experienced abuse or neglect (42 miles).

‘A vicious cycle’

On behalf of the ADCS, Pearce added: “The uneven distribution of homes across the country is an added challenge with homes frequently opening up where housing is cheaper not where they’re needed most, as is the unwillingness of some providers to take children with any level of complexity for fear of the impact on their Ofsted rating.

“This can mean children and young people with complex needs, who are equally deserving of our love, care and support, are placed miles away from their friends, families and communities or in a home on their own and sometimes in unregulated provision. This is not in the best interests of children, and it has a knock-on effect on the availability of homes and local authority budgets. It’s a vicious cycle.”

In its report, Ofsted said that the location of homes was likely a product of the lack of a national plan as councils withdrew from providing homes and private sector provision expanded over the past two decades.

It said two studies had found there was not a close relationship between house prices and the location of homes – though this was rejected by the Independent Review of Children’s Social Care, in its final report in May. The regulator said there was scope for more research into the topic.

Providers are failing to register unregistered placements for which they have been authorised to deprive children of liberty, despite being required to do so urgently.

Ofsted has been notified of 33 unregistered placements authorised by the courts under the inherent jurisdiction since December 2020, for children aged 15 on average. The regulator disclosed the figures in its annual report, published last week.

However, of those, none has since registered with Ofsted. One provider, responsible for four of the placements, applied but was turned down and four were in settings registered either with the Department for Education or the Care Quality Commission.

Severe placement shortage

Such bespoke placements are becoming increasingly common because of the severe shortage of secure and other specialised placements for children who are very vulnerable due to complex needs or exploitation.

Under the Care Standards Act 2000, any setting that provides care and accommodation wholly or mainly for children must be registered.

Earlier this year, the Supreme Court, in re T, ruled that the High Court can use its inherent jurisdiction to authorise the deprivation of liberty in an unregistered setting in “imperative conditions of necessity, where there are no alternatives to protect the child”.

However, practice guidance issued by the president of the family courts in 2019, states that steps must be taken immediately to register the placement so that it can be registered as soon as possible, and that this should be monitored by the court. The guidance says that an application to register must be made within seven days

In an update to this guidance last December, the president, Sir Andrew McFarlane, said that any such order must include a requirement for the local authority to immediately notify Ofsted about the unregistered placement. This is the basis of the figures set out in Ofsted’s annual report.

‘We can’t be sure that children are safe’

Yvette Stanley, Ofsted’s national director for regulation and social care, said such placements should only ever be used as a last resort, and for as short a time as possible.

“When they do happen, we want providers to register with us without delay, so we can check that the setting is suitable.

“If we can’t inspect, we can’t be sure that children are safe – and local authorities could be paying thousands of pounds for placements that may be leaving children at risk.”

It is not clear from Ofsted’s figures why the 33 placements have remained unregistered, including how many have since ended, why the single registration application was turned down and whether any of them were not required to register with the regulator.

This would be the case if the setting was ‘unregulated’, meaning it provided support, but not care. However, this is unlikely given children in these circumstances generally need high levels of care, and those under 16 cannot be placed in unregulated settings following a government ban introduced in September. Alternatively, settings do not need to register as children’s homes if they are covered by any of a set of exemptions set out in regulations, however, the president’s guidance states that is “very unlikely” in such placements.

The issue is one of the most acute manifestations of the shortage of appropriate placements for children in care.

‘Very few homes able to provide placements’

Elsewhere in its report, Ofsted said that for “a small number of children, there are very few homes able or willing to provide what they need – particularly children with complex needs, including mental health needs”.

It said there were particular issues finding placements for children who were mental health inpatients but were deemed not to have treatable disordered and then released. A fifth of children’s homes (475) offer care for children with mental health difficulties, however, of the 40 who specify the severity of difficulties they can cater for, just 15 can care for those with moderate or severe difficulties.

Of these, half are in the North West, with none in the East Midlands, North East and Yorkshire and the Humber, and just one each in each of the East of England, London, South East and South West. Such uneven distribution meant that children were often placed far from their families.

The regulator said that while councils were “undoubtedly in a difficult position”, some were not doing all they could to help find safe and secure placements for children. It said this required greater understanding of the needs of children in care, and councils collaborating to commission high-cost, specialist provision, including secure mental health placements.

‘Need to do something radical’

The Association of the Directors of Children’s Services (ADCS) said the use of unregistered provision was “driven by a lack of placement sufficiency” but always a last resort.

The government announced £259m to increase capacity in both the secure and open children’s homes sectors in its spending review in October.

Ramsden said the investment, as well as the children’s social care review, due to report next year, offered an opportunity “to do something more radical in this space”.

“Much closer commissioning and work between safeguarding and welfare, justice and health is needed to ensure we can meet the very complex needs of this cohort of children and young people,” she said.

Rejected placement

This month, the High Court rejected a council’s application to deprive the liberty of a 14-year-old in the hospital where she was already being detained on an interim basis.

In A County Council v A Mother & Ors (Refusal to make a DOLS order) [2021], Mr Justice Holman sympathised with the “acute difficulty” that the local authority faced in finding an appropriate registered placement for the “deeply troubled girl”, who has a history of self-harm, aggression and absconding.

But he said the girl’s placement in a paediatric unit of a south east London hospital, far from her family, should not continue, because it was not in her best interests. He said the hospital’s head of nursing had said that being in the setting was “damaging for her and her future”.

The judge said applications from councils for deprivation of liberty orders had become “far too frequent in recent years”.

‘Court cannot create placements’

Despite the “scandalous shortage of suitable establishments in the country”, he said that councils needed to understand that “the court itself does not have any resources at all available to it, nor a cheque book”.

Mr Justice Holman added: “I cannot myself find or create any solution in this case; but I am, frankly, not prepared simply to rubber stamp what the local authority and the other parties all know to be an unlawful situation at the moment in the present case.”

In an earlier judgment, A Mother v Derby City Council & Anor [2021], the High Court said that, ordinarily, it should not make an order under the inherent jurisdiction for an unregistered placement, where the provider makes it clear that it will not or cannot comply with the legal requirement to apply expeditiously for registration.

However, where the relevant local authority and provider are working with Ofsted to achieve such registration, the court should not ‘overzealously’ enforce the timescales laid down by the president’s practice guidance and frustrate the process.

The Court of Appeal upheld the ruling last week.

Durham council has said it’s acting on concerns raised by Ofsted that children within its care have been living in unregistered placements for “too long”.

The regulator, which visited the North East county in July, praised the “strong” practice quality Durham was offering children in care, numbers of whom had risen since the start of the pandemic.

But it found that a small number of children with complex needs were placed in unregistered children’s homes, “some for a considerable length of time”. Such provision – which offers care with accommodation – is illegal, as providers are required to register them with Ofsted as children’s homes.

“While leaders have oversight of these arrangements and have plans to register these homes with Ofsted, children are living in these circumstances for too long,” the regulator said in a letter following its focused visit.

“The lack of registration means that the care afforded to children in these arrangements does not necessarily meet the children’s home regulations and quality standards, and the ability of the carers to meet children’s needs and identify risks is unassessed.

Children in ‘uncertain situations’

“This also means that children are living in uncertain situations for too long without an agreed permanent care plan.”

It also said some children were being placed with family or friends without a viability assessment to determine their suitability.

“These children are placed under a variety of legal arrangements, including voluntary agreement, Interim Care Orders and Care Orders, with carers who are unapproved, meaning that these placements are outside the safeguards provided by regulation,” inspectors warned.

The regulator noted that the children were all being seen regularly by social workers but some lacked up-to-date assessments or a clear plan to progress their legal arrangements and circumstances.

It added that the council, which it rated as ‘requires improvement’ in its last full inspection, plans to open additional children’s homes and recruit more foster carers, but called on it to take “swift and decisive action”.

Ofsted said Durham needed to improve the quality of plans and arrangements for children in its care living with connected persons and to increase the sufficiency of suitable placements to avoid children being placed in unregistered accommodation.

The council said it now only has one unregistered arrangement, which it is trying to register with Ofsted.

“We have a clear ambition to continue to increase the number of suitable placements for our children through our foster carer recruitment activity; the opening of two new registered children’s homes this year and more in subsequent years,” said John Pearce, the council’s corporate director for children and young people’s services.

Hounslow moves to address extra-familial harm

This week Ofsted also published the results of a series of other focused visits carried out during July.

The regulator found most children considered to be at greatest risk of extra-familial harm in Hounslow were being identified and received an appropriate response. This followed a learning review carried out in the wake of the murder of a young person in the borough in 2019. But it urged more capacity to be created in these so children receive a “more timely” response, in the context of rising referrals, the impact of which was evident in “variable” practice.

It called on the council to routinely engage children in return home interviews and complete and review assessments regarding extra-familial harm.

And the regulator urged social workers at the council, rated “good” at last inspection, to ensure partner agencies understood the threshold for referral and child protection strategy discussions and provided sufficient information at the point of referral and in the multi-agency safeguarding hub.

Ofsted commended Wandsworth council, rated as “requires improvement” at its last full inspection, for showing “a determined focus on the improvements necessary”.

It said the authority still needed to improve consistency and quality of supervision, tracking and monitoring of children subject to the pre-proceedings phase of the Public Law Outline and its recording of actions to progress child in need and child protection plans.

Children’s trust’s ‘well-coordinated’ pandemic response

The regulator urged social workers at Greenwich council, which was rated “good” in its last full Ofsted inspection, to use children’s interests better to build positive relationships with them.

It also said contingency planning for children in need of protection should improve and children’s family history should be fully considered when they have been subject to repeat plans.

Ofsted also visited Worcestershire, whose children’s services were rated  “requires improvement” in their last full inspection in 2019, shortly before they were turned over to a trust, Worcestershire Children First. Inspectors commended the organisation on a “well-coordinated and effective response to the pandemic”.

But the regulator called on the trust to improve partnership-wide understanding of its early help strategy, its management of referrals from, and joint strategy meetings with, the police. It also said record-keeping around strategy meetings and interim safety planning needed to improve.