Different treatment of family and unrelated foster carers "unlawful": High Court

A local authority’s policy of differential treatment of family foster carers and unrelated foster carers was unlawful, a High Court judge has ruled.

The claimant in the case of X, R (on the application of) v London Borough of Tower Hamlets [2013] EWHC 480 (Admin) was the aunt of three damaged and difficult children aged 15, 14 and 7, all of whom had special needs.

The mother had alcohol and drug problems, while the father had schizophrenia and was in a mental hospital.

In 2007 the children were removed from the parental home and were placed with foster carers. However, three separate placements each broke down as the carers could not cope.

The children lived separately for a while as no foster carer could be found to manage all three of them together. Eventually Tower Hamlets approached their aunt and asked her if she would consider caring for them.

She agreed, even though this meant she would have to give up her job as an art restorer. The aunt moved, at the council’s request, to a bigger house in a semi rural area out of London and became dependent on state benefits.

In February 2011 the aunt was formally approved as the foster carer for the children. The most recent looked after child review made it clear that she provided an excellent standard of care and commitment to the children that would be difficult to replicate elsewhere.

“Despite their continuing and very significant problems, the children are now happy and settled in a way which would otherwise have been impossible,” Mr Justice Males said.

“Indeed, the difficulty of providing any alternative and the extent of the burden undertaken by the claimant can be demonstrated further from the fact that although the local authority was willing to pay for respite care, for some two years it was impossible to find anybody willing to care for the children while the claimant had a break from them. This only became possible in about October 2012.”

The aunt received an allowance from Tower Hamlets, the local authority responsible for the children. However, the council’s policy is to pay less, save in exceptional circumstances, to family foster carers than it pays to unrelated foster carers. The claimant therefore received less money than she would have if she hand not been the children’s aunt.

She argued that this was unlawful, both as a matter of domestic law applying ordinary principles of public law and because it constituted unlawful discrimination contrary to Article 14 (unlawful discrimination) when read with Article 8 (right to respect for family life) of the European Convention on Human Rights.

The aunt also claimed that Tower Hamlets’ failure to pay her an enhancement to the weekly allowance, in circumstances where she appeared to qualify for such an enhancement in accordance with the authority’s policy on ‘exceptional circumstances’, demonstrated that the council had fettered its discretion in the application of that policy.

The barrister for Tower Hamlets argued, amongst other things, that the statutory scheme left it to local authorities to determine the terms, including payment terms, on which they will provide fostering services for looked after children.

He also pointed out that the statutory guidance permitted local authorities to pay different rates to different types of foster carer.

Mr Justice Males, who described the aunt as “one of the unsung heroines of our society”, found in the claimant’s favour.

He concluded that the local authority’s policy on fees (and if necessary allowances) were not in accordance with the statutory guidance to the extent that they provided for different treatment of family and unrelated foster carers.

Nor could the departure from the guidance be characterised as so minor that there was substantial compliance.

The judge later added: “In circumstances where there is no evidence that….[other] possibilities….have been considered, the local authority has not discharged the burden upon it of showing sufficiently cogent reasons for departing from the principle of equal treatment of family and unrelated foster carers in the payment of fees (and to the extent relevant, allowances) required by the statutory guidance.”

The judge said that if he were satisfied that all reasonable possibilities had been considered and rejected for good reason, so that the local authority's ability to perform its statutory duties would indeed have been seriously affected by a declaration of illegality, he would necessarily have concluded that there were sufficiently cogent reasons for departing from the guidance.

“Indeed that conclusion would suggest that the guidance itself was fundamentally flawed,” he said. “But that is not the position on the evidence before me. It follows that the local authority's policies are unlawful.

“I reach this conclusion with some regret, as I do not doubt the good faith of the local authority or the real and serious efforts which it makes to ensure, in very difficult circumstances and with limited resources, the best possible outcome for all the children who are or may in future be in its care.”

The judge declared that Tower Hamlet’s fostering policies were unlawful to the extent that they discriminated on the grounds of pre-existing relationship with the child between family and unrelated foster carers in the payment of (a) the fostering fee (currently £171 per week) provided for in the council’s March and November 2011 policies and (b) the "reward/fee" element of the payments made to carers of children with disabilities provided for in its April 2012 policy.

Mr Justice Males said that he had had reached this conclusion as a matter of domestic public law and therefore did not need determine whether the same result would be reached under Article 14 of the European Convention on Human Rights.

The local authority was told to reconsider its policies.

Rebecca Chapman of Ridley & Hall, the claimant’s solicitors, said: “I was shocked to read the council’s new policies particularly because in early 2011 the government issued guidance called Family and Friends Care: Statutory Guidance for Local Authorities which made it clear that councils should make sure family and friends carers are fully supported to care for the children placed with them and that they should not be treated unfavourably because they knew the child before they came to live with them.

"The family and friends guidance was issued at around the same time as a number of other guidance which made the same point. Although the guidance was pointed out to the local authority they decided to continue with their discriminatory policy.”

The aunt, who was not named for legal reasons, said: “I am absolutely delighted with the result. I am pleased that this judgment has recognised that family and friends carers should be treated fairly and should be paid the same amount as a professional foster carer when they are doing the same job.”

A spokeswoman for Tower Hamlets said: “We don't comment on specific cases.”