Legal Update: Care – A protected characteristic?

Ellen Broome, managing director of CoramBAAF, explains how making care a protected characteristic would place a duty on organizations to take the needs of care-experienced people into account.

In July, the children’s commissioner for England, Dame Rachel de Souza, opened a consultation on whether care experience should be a “protected characteristic” under the Equality Act 2010. This follows news that 55 local authorities so far have voted to make care experience a protected characteristic.

The momentum for change has emerged out of the growing recognition that care leavers face poorer outcomes in physical and mental health, education, employment and housing, as well as an increased risk of premature death and contact with the criminal justice system. Crucially, many care-experienced people themselves say that discrimination has contributed to negative outcomes in their lives.

The Independent Review of Children’s Social Care recommended that care experience should be a protected characteristic, and CoramBAAF was disappointed to see that this was not part of the government’s reform plan announced in February 2023.

However, with changes at the local level now outpacing national policy and practice, there is an urgent need to explore the risks, barriers, challenges and opportunities that making care experience a protected characteristic could bring. As part of CoramBAAF’s annual Members’ Week, we hosted a panel discussion on whether being care experienced should be a protected characteristic. We were joined by the care leaver champion and campaigner Terry Galloway, and chair of the Commission on Young Lives, Anne Longfield, as well as representatives from Cambridge and Plymouth City Councils, both of whom have voted in favor of making care experience a protected characteristic .

Galloway spoke of living in 100 different placements before he left care at 16 and of the premature death of his sister at the hands of his boyfriend after his own children were taken into care. He argued that the care system isn’t designed to address the challenges that young people face, highlighting that half of all prisoners and a quarter of homeless people come from the care system. Using an analogy, he explained an understanding of the challenges faced by people with disabilities is built into the design of road crossings. “There is a dropped kerb for wheelchair users and there are audio and tactile signals for people who are visually impaired people. This is what we need for young care-experienced people to have equality and public services that have been designed for them.”

We heard some shocking examples of the discrimination faced by care-experienced young people, including Claire Wilden, a care-experienced consultant with Coram Voice. She spoke of how her intelligence had been underestimated at school and how she was turned down for jobs because it was assumed that, as a care leaver, she would be unreliable or could leave the area at short notice. She also highlighted how those in her care were often seen as problematic and recalled a parent turning her away from their house for fear that she would be a bad influence on their children. She said: “I didn’t choose to be born when I was, making me this particular age. I didn’t choose to be on the autistic spectrum, providing me with this label and stigma about my disability. Similarly, I’ve had no choice about being in care. If the government can prevent me from being discriminated against due to my age and disability, why not care for my experience?”

Protecting rights

While equality legislation has not eradicated discrimination or stigma in other areas such as disability, age or gender, it sends an important message that the rights of care-experienced people of all ages need to be protected. It offers more visibility and organizations would have a duty to take the needs of care-experienced people into account. It will also be important to define key policy areas where we would like to see change such as housing and employment.

Change is being driven at the local level because councils are seeing first-hand the challenges care-experienced young people face. However, this could lead to massive variation in practice across the country and there is a need to address the unfairness this may create. CoramBAAF will be looking at the local authorities that have voted to make care experience a protected characteristic.

The clear evidence that care-experienced people face systemic inequalities over the course of their lives offers a strong case in favor of enhanced legal protection under the Equality Act 2010. In the face of local reform and at the greater voice of care-experienced people themselves , the government should extend equality and anti-discrimination legislation to people who have been in care.