The court of appeal recently delivered an important ruling that will have an impact on social services departments' policies on payments to kinship foster carers. It gives an unequivocal message that these payments must be on the same level as those made to unrelated foster carers.
The London Borough of Tower Hamlets had appealed against a high court ruling that its policies on payments to kinship foster carers were unlawful. However on 24 July the court of appeal upheld the high court's decision. It confirmed that local authorities should (unless they have cogent reasons not to do so) follow statutory guidance stipulating that kinship foster carers should not be paid less than unrelated foster carers simply on the basis of a familial relationship.
The policies in question saw unrelated foster carers receive a weekly allowance of £334 for a child aged 11-15 years, while kinship foster carers only receive £163. Kinship foster carers did not qualify for the fee element of weekly allowance payments for caring for children with disabilities.
At the heart of this case was Ms X, praised by the judges as one of the unsung heroines of society. In 2009, Ms X gave up her job and financial independence to care for her 14 and 7-year-old nephews and 16-year-old niece; children with challenging needs who had suffered severe neglect in the parental home and experienced the breakdown of numerous professional foster care placements. The court of appeal noted that Ms X has "impressively" dedicated her time to providing the children with the stability their lives sorely lacked.
It agreed with the high court that the policies did not follow statutory guidance which provides that fees paid to foster carers must be payable to all meeting the applicable criteria, regardless of whether they are related to the children. The statutory preference for children to be placed with their families was underpinned by this equal treatment guidance.
The court of appeal affirmed that the council had no cogent reasons to depart from the guidance. It was not sufficient to reason that paying kinship and unrelated foster carers equally would put pressure on the council's finances. Meanwhile, the council's explanation that it needed to pay more to unrelated foster carers to incentivise them was rejected because there was no evidence that unrelated foster carers wanted different treatment from their family colleagues.
So what are the implications for local authority foster carers?
It is good news for family and friends foster carers who should not be denied fees and allowances payable to unrelated foster carers simply because they are related to the child. Any local authority policy which seeks to discriminate in this way can be challenged.
As for local authorities:
• They should follow statutory guidance which provides that there should be no discrimination between related and unrelated foster carers;
• Seeking to incentivise unrelated foster carers and the possible impact on budgets do not necessarily constitute good reasons to depart from the statutory guidance;
• Their policies should distinguish between allowances and fees;
• Criteria for foster care payments should be carefully considered and not differentiate on the basis of a pre-existing relationship.
Fiona Scolding and Amelia Walker of Hardwicke chambers represented Ms X in the court of appeal (instructed by Ridley Hall Solicitors)