Court of Appeal finds for grandmother in foster care payments ruling

A local authority has lost its appeal over being ordered to pay a grandmother the same rate as a foster carer for looking after her granddaughter.

In the case of SA, R v Kent County Council [2011] EWCA Civ 1303 the grandmother was approached by Kent’s social services department around Christmas 2004. She was told that her then 10-year-old granddaughter – being cared for at the time by her mother – would be put into care unless she agreed to look after her.

The grandmother agreed. She received £63.56 a week for looking after the girl, compared to the £146.23 weekly that the average foster parent receives.

The local authority justified the differential on the basis that it was a private arrangement between the mother and the grandmother. This decision was challenged by way of judicial review.

In the High Court, Mrs Justice Black ruled in favour of the claimant, saying that – on an examination of the facts – the presence of the grandmother did not enable Kent to “side-step” its s. 20(1) duty under the Children Act 1989. That duty had come into existence and the council then discharged it by a placement under s. 23(2) rather than s. 23(6), the judge said.

Mrs Justice Black ordered Kent to give the grandmother the same support as a foster carer and to make back payments. She also gave Kent permission to appeal.

The Court of Appeal last week rejected the local authority’s arguments. Giving the lead judgment, Lord Justice Ward said the issue at the heart of the appeal was money.

He said: “Making financial provision for children being looked after by local authorities under the Children Act 1989 is expensive. Not surprisingly, local authorities are keen to trim their obligations to the minimum possible.”

The judge cited statistics produced by the Department of Education, in March 2010, which showed that 64,400 children were being looked after by local authorities in England. Of these, 38,200 were subject to interim or full care orders and 21,200 were in voluntary placements under s. 20 of the Children Act.

The key legal issue was whether the child in SA was a child being looked after by the local authority as that phrase is defined under s. 22 of the Act – "whether, as a matter of law, a child who is not the subject of an interim care order can be a looked after child where she goes to live with a relative in circumstances where the local authority is involved in setting up and funding the arrangement."

Lord Justice Ward and Lord Justice Rimer said Mrs Justice Black had been entitled to find as she did – i.e. that the local authority had placed the girl with her grandmother pursuant to s. 23(2) of the 1989 Act and that it followed that the girl remained a ‘looked after’ child within the meaning of s. 22(1). Kent’s appeal was dismissed.

A spokesman for the council said the authority accepted the judgment and would not be challenging it.

He insisted that the council recognised and valued the important role that families and friends can have in supporting children and young people who are unable to live with their birth parents.

The spokesman said the council had played a leading role in discussions with the Department of Education as to the best way of providing support for family and friend carers.

He added: "Following recent changes in national legislation and guidance, the council consulted with a voluntary group, which supported family and friend carers, and revised the way children and young people are supported, when living in this kind of arrangement.

"Yesterday's judgement was on a case that predated the changes in legislation and has clarified an important legal point about the then arrangements. Kent County Council accepts the judgement and will not be challenging it."

The grandmother’s lawyer, Nigel Priestley of Huddersfield law firm Ridley & Hall, said: “Local authorities across the country have been waiting for this decision. They were roaring Kent on from the terraces. It will be a major blow to them that Kent lost 3:0!

“We’re delighted with the outcome. The county council argued that they had no duty to the child even though their fingerprints were all over the case. Kent put forward the radical suggestion that it had no significant financial duty to a child they had placed with a relative. They denied that she should be treated as a ‘looked after’ child. The judge rejected this argument. The Court of Appeal agreed with her.”

Priestley claimed that it was a landmark case, adding that it would cost Kent “a five-figure sum” in legal costs and back payments. “It has implications for many children Kent has placed with relatives,” he said. “Many carers will be losing out. That’s why Kent wanted to appeal the decision.”

The Ridley & Hall lawyer argued that the grandmother’s situation was not unusual in England and Wales. “Because of a shortage of foster carers, ‘kinship’ carers are increasingly being used,” he said. “However, local authorities are not supporting them appropriately.”

Lynn Chesterman, Chief Executive of the Grandparents Association, said:
“Too often, as in this case, grandparents are struggling to cope financially – living on a pension and bringing up children. They simply do not have enough money to live on. I hope that Kent has learnt its lesson – and that other councils start taking their responsibilities seriously.”

Philip Hoult