On 24 July 2013 the Court of Appeal handed down a landmark decision for kinship foster carers, confirming that they should not be paid less than unrelated foster carers simply on the basis of a familial relationship.

Ms X is the registered foster mother of her two nephews (14 and seven years old) and one niece (16 years old). The children’s mother has drugs and alcohol problems and their father has schizophrenia. The children suffered from severe neglect and were removed from the parental home in 2007. A number of professional foster care placements broke down and the London Borough of Tower Hamlets (the council) approached Ms X. Ms X gave up her job as an art restorer, her financial independence and her home to care for the children.

Since 2009 Ms X has tirelessly cared for her nephews and niece who have a range of challenging needs, providing them with a loving, calm and stable environment.

In February 2011 Ms X was formally approved as a foster carer, one of only a dozen or so council-registered family foster carers. Ordinarily three such complex children would not be placed with one carer, but it was permitted in this case because the alternative was to split up the family and because Ms X showed such dedication to the children. Mr Justice Males called Ms X one of the unsung heroines of our society. The Court of Appeal agreed.

The policies

The council’s policies on foster carers’ allowances differentiate between the allowances paid to unrelated foster carers and kinship foster carers, for example whilst the former receives a weekly allowance of £334 for a child aged 11-15 years old, the latter receives £163. The only basis for the difference is the pre-existing relationship.

This distinction extended to a policy introduced in April 2012 to provide weekly allowance payments for those who care for children with disabilities in recognition of additional associated costs. Kinship foster carers did not qualify for the reward/fee element of the allowance payment.

Males J’s decision

In February 2013, Males J agreed with Ms X that the council’s policies were unlawful because they discriminated between family and unrelated foster carers.

Males J concurred that the policies did not comply with Statutory Guidance issued under section 7 of Local Authorities Social Services Act 1970. Much of this guidance follows Munby J’s decision in R (L) v Manchester City Council [2001] EWCH 707 (Admin), [2002] 1 FLR 42 that Manchester’s policy of paying all short-term foster carers allowances below the National Foster Carers’ Association recommended levels, with short-term family foster carers being paid even less, was unlawful.

The Family and Friends Guidance, The National Minimum Standards for Fostering Services and Volume 4 of the Children Act 1989 Guidance, emphasise equality of treatment in the payment of fees and allowances to foster carers. If fees are paid to foster carers they must be payable to all meeting the applicable criteria regardless of whether they are related to the children. The council’s criterion was relationship to the children.

Recalling R v Islington Borough Council, ex parte Rixon (1998) 1 CCLR 119 and R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58, [2006] 2 AC 148, Males J considered whether the council had cogent reasons for departing from the guidance. The reasons given included that payment of additional fees incentivised unrelated foster carers. Males J was not convinced, noting that the council had not considered criteria for payments other than a pre-existing relationship, i.e. particular qualifications.

Males J did not come to a final view on Ms X’s challenge on the basis of the European Convention on Human Rights Articles 14 and 8.

The appeal

Whilst agreeing that Ms X’s case could be distinguished factually from Manchester, the Court of Appeal considered ‘sterile’ the local authority’s criticism that in Manchester Munby J had wrongly espoused discrimination as a free-standing common law ground of challenge. The court, in concert with Males J, did not consider it necessary to resort to a free-standing ground to conclude that the local authority had acted unlawfully.

Attack on the guidance

The appellant suggested that the use of the word ‘must’ in the statutory guidance transformed it into an instruction. The Court of Appeal did not accept this, noting that statutory guidance is often expressed in those terms, and referring to the fact that the guidance is set out in a document enjoining that it should be complied with unless local circumstances indicate exceptional reasons justifying a variation.

The appellant argued that it was not open to the secretary of state to proceed by way of guidance because no order had been made under Section 49 (1) of the Children Act which provides that the secretary of state ‘may be order make provision as to the payments to be made… (a) by a local authority… to a local authority foster parent’. The appellant drew an analogy with the Immigration Rules as discussed in Pankina v Secretary of State for the Home Department [2011] QB 376. This argument, on which no permission to appeal had been given was, according to the Court of Appeal, ‘misconceived’, because Section 49 (1) is a discretionary power to regulate by statutory instrument, and the Immigration Rules are unique.

Departure and cogent reasons

The Court of Appeal concluded that the council had departed from the guidance and agreed with Males J that no there were no cogent reasons for doing so:

a) The success of the statutory preference to family and friends as foster carers is underwritten by the equal treatment guidance;

b) There may be a need to incentivise unrelated foster carers but there is no evidence that unrelated foster carers seek a differential over their family colleagues;

c) As Males J identified, the failure to consider other criteria (i.e. qualifications) meant that a policy of differentials based purely on a pre-existing relationship could not carry with it cogent reasons for departing from the statutory guidance.

What next?

The council has until 3 October 2013 to revise its policies; the Court of Appeal noting that the council would be well advised to ensure clarity as between allowances and fees in future policies.

An application for permission to appeal to the Supreme Court stands adjourned.

Fiona Scolding and Amelia Walker are barristers at Hardwicke chambers