Recognising ‘Care Leavers’ as a Protected Characteristic: A Legal Perspective

by Charlotte Smith, Apprentice Solicitor

Our council is taking a groundbreaking step by recognising ‘care leavers’ status as a protected characteristic. This move will provide care leavers with similar protections to those afforded under the Equality Act 2010 (“the Act”).

Understanding the Equality Act 2010

The Act is a key piece of legislation that protects people from various types of discrimination based on nine protected characteristics. Section 4 of the Act sets out those identified as ‘protected’: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. This anti-discrimination law ensures that individuals are treated fairly in various aspects of life, including employment and accessing services.

Section 149 of the Act also goes further by placing a duty, known as the Public Sector Equality Duty, on Local Authorities when exercising their functions to have regard to the need to:

1. a) eliminate unlawful discrimination, harassment, and victimisation of people with protected characteristics
2. b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)  foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

By complying with this duty, Local Authorities are more likely to meet their obligations under the Act.

The Act as it stands does not currently recognise care leavers status. The ‘Independent Review of Children’s Social Care Report’ recommended that the Government should make care experience a protected characteristic under equalities legislation. It is argued that care experienced people experience similar discrimination to those that have a legally protected characteristic under the Act.

The Government responded to this report as follows:

‘Our ambition remains to extend corporate parenting responsibilities to other government departments and relevant public bodies… We believe this will ensure that policies and services that affect children in care and care leavers better take account of the challenges that they face and provide opportunities for them to thrive.’

Despite this, no changes to legislation have yet been implemented.

Why ‘Care Leavers’ Need Protection

A ‘Care Leaver’ refers to a young person who has been in the care of a local authority for a certain period and has since left that care. The term includes various forms of care, such as foster care, residential care (including children’s homes), and other arrangements outside the immediate or extended family.

It has been recognised that care leavers face unique challenges as studies show that care leavers often struggle with lower educational outcomes, higher unemployment, and mental health issues.

By recognising ‘care leavers’ as a protected group, the Council aims to address these disadvantages and promote equal opportunities.

Corporate Parenting Principles

The term ‘Corporate Parent’ refers to the collective responsibility of a local authority to act for those looked after children and young people as a parent would for their own child, by providing care and safeguarding. These principles apply to the Council’s functions as a whole, not just to social care functions, although some are less likely to be affected.

Whilst District Councils are not directly responsible for looked-after children, the statutory guidance states that these Councils are still required to consider how the principles apply when they are exercising their functions in relation to looked-after children and care leavers.

Recognising ‘Care Leavers’ status

On 23 July 2024, our Council agreed to afford care leavers the same protections as those recognised under Section 4 of the Act, insofar as the law allows. It was established that the Council wanted to go further in fulfilling its duty under Section 149 of the Act to look at what else could be done to ensure that those groups who face the most disadvantage in our community are protected.

The decision to recognise ‘care leavers’ as a protected characteristic is backed by findings from the City of Westminster report, which highlighted significant disparities faced by this group. The report pointed out that care leavers are at a greater risk of social exclusion and discrimination. It also highlighted that extending protections to care experienced individuals is a natural progression in our equality laws, reflecting our society’s evolving understanding of fairness and justice.

As care leavers status has not yet been afforded protection under any statutory provisions, it must be noted that the statutory nine characteristics would prevail in case of a conflict between the two.

Impact on Policies and Practices

This initiative supports the Council’s broader commitment to equality and diversity. By extending protections to care leavers, a more inclusive environment where everyone can thrive is created.

This new recognition has led to ideas of how the Council can go further by treating care leavers as having protected characteristics. Some of these are:

1. Policy and Procedure Changes: Our council will look to review and update policies and procedures to address the needs of care leavers, ensuring they are considered.
2. Health and Wellbeing: Offers will be promoted and directed specifically at care leavers.
3. Work and Training: further training will be provided to staff and managers as to the support that can be offered to care leavers.

Conclusion

Recognising ‘care leavers’ status as a protected characteristic is a significant step towards greater equality. This decision aims to address the specific challenges faced by care leavers and seeks to promote better outcomes for those individuals.