Setting up a children’s home? Planning permission, location assessments and other considerations

There are many aspects that must be considered when applying to Ofsted to run a children’s home, but especially important are whether you have the correct planning permission and the need to carry out a location assessment.

In its 2024 paper ‘Keeping Children Safe, Helping Families Thrive’, the government set out its ambitions for children’s social care, including the need to make it easier to open the “right kind of home which meets children’s needs”.

Insufficient numbers of registered children’s homes suitable for complex needs is leading local authorities to place children into unregistered ones.

A 2024 investigation carried out by The Observer Newspaper and the Together Trust found that, during 2022/23, local authorities had placed 706 children in homes that were not registered with Ofsted. Between 1 April 2023 and 31 March 2024 Ofsted opened 1019 cases into potential unregistered settings, with 887 of those requiring registration. Earlier this year, I discussed the provisions to impose a profit-cap on children home providers set out in the Children’s and Wellbeing Bill, which would likely discourage new market entrants.

New government direction for children’s services

However, in ‘Keeping Children Safe, Helping Families Thrive’, the government noted that planning permissions, and the need to register children’s homes, could be challenging and said it would work with Ofsted to consider a fast-track route for selected new children’s homes. This is encouraging, particularly given the lack of suitable properties.

The government also highlighted that the Ministry for Housing, Communities and Local Government (“MHCLG”) had recently updated the National Planning Policy Framework to make it explicitly clear that local planning authorities must consider the need for children’s homes as a type of specialist housing in their area. It notes that the government will work with the MHCLG to ensure that any planning changes would be coupled with strengthening the required Location Assessment. The government has stated that it will include a requirement for applications for registration with Ofsted to include an endorsement from the local children’s services team saying that there is a local need for provision. The government says that this will allow Ofsted to refuse registration where provision is deemed unnecessary.

Whether the intended change is legislative or not, it appears to be more absolute – no local need, no registration – but there does appear to be potential for conflict. Children’s social care is paid for by local authorities and there is concern about the amount some providers charge for services. Could a local authority not endorse a provider because it doesn’t like its charges? Indeed, in ‘Keeping Children Safe, Helping Families Thrive’, the government notes that, as private sector providers dominate the market and there is a shortage of appropriate places, local authorities are “being charged excessive amounts.”

Regulation 46 of the Children’s Homes Regulations (England) 2015 requires providers to ‘review the appropriateness and suitability of the location of [their] premises at least once in every calendar year’ and consult and take into consideration the views of relevant people. Applicants who wish to register a new home must describe the steps they have taken to ensure the home is appropriately and suitably located.

Key considerations for location assessments

There is non-statutory guidance available which sets out things to consider when carrying out a location assessment. It includes:

• Does the location of the home influence the potential for an already vulnerable child to be a victim of crime, such as being targeted for sexual exploitation?
• Is there a likelihood of children placed in the home becoming drawn into gang crime or anti-social behaviour in the local area?
• Is local neighbourhood suitable as a location to care for children who may have already been victims of abuse and neglect?
• Are there environmental factors that would represent a hazard to children, such as locations near level crossings or busy roads?

Given the lack of suitable settings, it would seem unlikely that any local authority would say there isn’t a local need for provision. However, the government notes a regional imbalance, with the Northwest being home to 25% of all children’s homes, compared to only 6% in London, 7% in the Southwest of England and 7% in the East of England.

The government also wants to consider reforming the planning process. What this will look like is unclear. However, the Town and Country Planning (Use Classes) Order 1987 currently sets out two Use Classes that are relevant to children’s homes:

• C2 covers residential institutions, so if the premises have been used as any residential institution under C2 – be it a hospital or care home – then that planning permission is sufficient to run a children’s home as you are permitted to move within a Use Class
• C3 covers Dwellinghouses:
  • C3(a) allows use by a single person or by people living together as a family
  • C3(b): allows not more than six residents living together as a single household (including a household where care is provided for residents)
  • C3(c): allows for groups of people (up to six) living together as a single household where no care is provided (which doesn’t fall into a C4 house of multiple occupation definition).

Again, you can move within a Use Class – so if you have C3(a) planning permission you can use the premises as a dwellinghouse for 6 residents where care is provided to residents without having to seek new planning permission because you remain within C3. However, the key here is that the people within the home must live together as a single household.

Case study: planning appeal decision, Stockport, 2010

The provider was operating a children’s home for four children with two staff and the premises had C3 (a) planning permission – residential use by a single person or people living together as a family – and the two staff rotated shifts every two days. The provider applied for a Certificate of Lawful use. On hearing the appeal, the inspector stated that the property could not be said to be the carers’ home, therefore the residents were not living as a single household and the home was deemed to fall into class C2.

The case quoted a 2003 planning decision concerning North Devon District Council stating that a household needed more than just children, as children “need to be looked after” and “they cannot run a house”. However, it was held that planning permission would only be required if the use change amounted to a material change.

Stockport Council argued that the change was material because the home was more akin to an institution than a normal family home due to factors such as having a fire alarm panel; a health and safety notice and a lockable office. However, the inspector hearing the appeal thought that the likely change in activity in the immediate vicinity of the property was more pertinent.

He noted the following in demonstrating a material change in Use Class:

• There were shift changes with more comings and goings of cars
• There were “troubled children” at the home which would create more disturbance than most family homes
• Police visits suggested to the inspector that the nature of the premises was not that of a normal domestic use
• Local residents clearly thought the use of property had changed.

This is relevant to location assessments. If the government intends to make it easier for providers to obtain C2 planning permission (the correct permission for the majority of children’s home providers) and given the concerns noted above regarding the change in character to the local area, can a children’s home location become unsuitable by the very nature of being a children’s home?

This particular property has been the subject of several appeals and planning applications, and permission for a residential children’s home was eventually granted (subject to conditions). The decision maker’s reasoning included that the use of one room as an office for members of the household to work from was increasingly common (this was eight years prior to COVID-19), that – while criminal incidents were upsetting – they would not greatly impact on neighbours, that there was sufficient off-street parking, and that staff shift changes every two days wouldn’t cause any more of a disturbance than an ordinary family home. There was also a subsequent amend to increase the number of children, with a strong endorsement from local authority commissioner which is significant given the government’s intention to make commissioner enforcement a pre-requisite to Ofsted registration.

As the Stockport case demonstrates, such matters can be interpreted differently in court and societal norms will impact the decision reached. If the Government wants to strengthen the Location Assessment while reducing the burden of planning permission, there will need to be a careful balance between the two. wo so that they don’t conflict with each other.

Whether the above encourages more entrants to the market remains to be seen, but the government will need to consider this in the round – particularly given its desire to cap profit of private providers.

Our Healthcare team includes experts across real estate, corporate and regulatory law who are dedicated to advising clients on children’s services. Get in touch with the team if you have a query or want to set up a children’s home.