Children’s Homes: Why Planning And Regulatory Strategies Must Go Hand-in-Hand

For many providers looking to open a children’s home, the focus is understandably on obtaining registration from Ofsted. However, an issue that is increasingly arising in practice is the extent to which planning considerations are influencing the Ofsted registration process.

Whilst planning law and social care regulation are separate areas of legal practice, there is an overlap between the two. We are seeing increasing scrutiny of planning permissions, lawful development certificate, planning conditions and the practical operation of properties as part of the wider assessment of whether a service is suitable for registration as a supported accommodation of children’s home provider.

As a result, providers who do not consider the two together can find themselves facing costly delays, challenges during the registration process and, in some cases, notices of proposal to refuse registration from Ofsted.

More than just the use class

Historically, much attention has been focused on whether a property can lawfully be used as a children’s home from a planning perspective.

That remains important. However, the key issues. increasingly extend beyond the simple question of whether residential children’s home falls within particular use class. Providers also need to consider the character and the use and how the home will operate day to day basis and whether the residents are living as a single household.

Providers should also be considering:

• Any planning conditions attached to the property;
• The wording of any lawful development certificate;
• Occupancy limits;
• Parking and traffic implications;
• The frequency of staff attendance, for example the frequency and nature of staff attendance, including whether staff stay overnight or work shifts ;
• The attendance of managers, therapists and other professionals; and
• Whether the day-to-day operation of the home remains consistent with the planning position.

What may initially appear to be an operational or regulatory issue can quickly become a planning issue, and vice versa.

Lawful Development Certificates are not always the end of the story

Many providers obtain a lawful development certificate to provide certainty regarding the proposed use of a property. A local planning authority will determine a lawful development certificate application based on the evidence submitted. A certificate confirms, as at the date of the application, that the proposed use of the property is lawful. If the operations of the children’s homes changes after the certificate is granted, there is a risk that the use may no longer be lawful and that planning permission may be required. Providers should therefore ensure that the information submitted with the application accurately reflects how the children’s home will operate in practice.

Providers should also keep in mind that changes to occupancy, staffing patterns, visitor arrangements or the intensity of use after a certificate has been granted may affect the planning analysis. A certificate should not be treated as a one-off exercise if the way in which the children’s home operates subsequently changes in practice.

We are increasingly seeing situations where questions arise regarding the interpretation of certificates and the extent to which they permit particular operational arrangements. What may seem like a minor distinction in wording can have significant implications when a registration application is being considered.

Providers should therefore ensure that planning documentation and registration documentation tell the same story. That includes ensuring that planning applications, certificates of lawfulness, Ofsted registration materials, statements of purpose and operational policies are consistent with each other. Inconsistencies between these documents may create avoidable questions during the registration process and can undermine the provider’s position if the planning status of the property is later challenged.

It is also sensible for providers to retain a clear evidence base showing how the property is intended to operate, including information about occupancy, staffing, professional attendance and the daily use of the home. This evidence can be important both when applying for a lawful development certificate and if questions later arise about whether the property is operating consistently with the planning position relied upon.

Why staffing arrangements matter

One of the most interesting areas of crossover relates to staffing.

From a regulatory perspective, Ofsted will rightly expect staffing arrangements to be sufficient to safeguard and promote the welfare of children. However, staffing arrangements can also influence how a property’s use is viewed from a planning perspective.

Questions can arise regarding:

• Live-in carers;
• Sleep-in staff;
• Waking night arrangements;
• Management attendance;
• Shift patterns;
• Relief staff; and
• The number of professionals regularly attending the property.

A small residential home operating in a domestic manner may present very different planning considerations from a property with a high level of staff movement and regular professional attendance.

Similarly, providers need to consider whether staffing arrangements described during the registration process are aligned with the planning position underpinning the property. Recent Ofsted registration representations have involved consideration of how staffing arrangements interact with planning restrictions and occupancy levels.

The impact of visitors and professional attendance

Another area often overlooked is the role of visitors.

Children’s homes frequently involve attendance by social workers, therapists, healthcare professionals, family members, education providers and other professionals. Such attendance is often entirely appropriate and necessary.

However, from a planning perspective, the cumulative effect of vehicles, professional visits and management attendance may become relevant when assessing how a property is operating in practice and the character of its use. Frequent visits by a range of professionals may affect whether the use continues to appear residential in planning terms.

Providers should therefore think carefully about how the home will function on a day-to-day basis and whether that operation remains consistent with the planning framework supporting the use.

A joined-up approach

The most successful projects are often those where planning and regulatory considerations are addressed together from the outset.

Taking early planning and regulatory advice before committing to a property can help providers identify whether the proposed model is likely to be supported by the existing planning position, whether further planning steps may be required and whether the information provided to Ofsted is consistent with the intended operation of the home.

Before acquiring premises, applying for registration or submitting planning applications, providers should ensure that they have a clear understanding of:

• The planning history of the site;
• Any planning conditions or restrictions;
• The proposed operational model;
• Occupancy levels;
• Staffing arrangements; and
• Future growth plans.

By addressing these issues early, providers can reduce the risk of delays, challenges and unexpected regulatory hurdles further down the line.