Council policy on calculating payments to special guardians “destroyed” coherence of Government recommended model, judge finds

The High Court has quashed Plymouth City Council's model for awarding financial support to special guardians after finding it failed to take into account the claimant's dependent children.

In Becker, R (On the Application Of) v Plymouth City Council [2022] EWHC 1885, Mr Justice Lane said parts of the council's policy had destroyed the coherence of a Government recommended model that it was based on.

The claimant became the special guardian of her two grandchildren four years ago, after a social worker asked her to take the children home with her in light of neglect they had suffered in the care of their mother.

Her dispute with the council began after the local authority recalculated her special guardianship financial support award in September 2021. Based on a method named the working practice for adoption and special guardianship financial support (WP), the council calculated that the claimant was eligible for £168.16 per week to cover the expenses for both children.

The council's WP was based on an approach recommended to local authorities by the Department for Education and Skills (the Department's model) which sets out a standardised means test model for adoption and special guardianship financial support.

However, the claimant was unhappy with the award and pursued a judicial review.

Mr Justice Lane heard four grounds of arguments advanced by the claimant.  

Ground 1 asserted that the defendant "wrongly means-tested the claimant, despite her being in receipt of Income Support". The claimant submitted that both the Department's model and the defendant's WP were ambiguous. They both recommended that those in receipt of Income Support should not be means-tested. However, both documents later refer to means-testing only in the context where Income Support is the sole income, the ground claimed.

Ground 2 argued that the council's WP, as used to means-test the claimant, did not take proper account of her household expenditure.

Ground 3 submitted that the WP used to assess the claimant did not take into account the additional needs of the two children subject to the guardianship order. This was despite the fact that the 2005 Regulations require consideration to be given to payments in connection with the additional needs of the children subject to the special guardianship order.

Ground 4 contended that the WP used to means-test the claimant had generated an allowance which made her continued care of the two children unsustainable.

Ground 2 succeeded while grounds 1 and 3 failed. The judge did not consider ground 4 due to the success of ground 2.

Under ground 2, the judge found that the WP departs from the Department's model in a fundamental respect.

The judge added that he considered that the discrepancy "strikes at the coherence of the defendant's scheme".

Mr Justice Lane said that the council not only sought to justify the differences between its policy and the Department's model policy; "it has, in [an email] asserted that it is 'not aware of any discrepancy between this and the model document that disadvantages SG carers'".

"That, however, is precisely what has happened. The defendant has departed in a way that has produced a material financial disadvantage, by taking no account of the claimant's dependent children," the judge noted.

He later added: "Since the defendant has decided to means-test, by reference to the Department's Model, it cannot then proceed to destroy the coherence of that model. But that is what [specific paragraphs] of the WP do."

The judge quashed the decision in light of his finding on ground 2.

39 Essex Chambers, whose Victoria Butler-Cole QC acted for the claimant, said the council would now have to produce a new model and recalculate the claimant's financial allowance.

“The judgment will be of wider significance to other special guardians funded by Plymouth City Council, and potentially to other local authorities who have amended the DfES model for financial payments to special guardians,” the set added.

Adam Carey