A London borough has failed in a Court of Appeal bid to overturn a ruling that its policy of differential treatment of family foster carers and unrelated foster carers was unlawful.
The respondent in X, R (on the application of) v London Borough of Tower Hamlets  EWCA Civ 904 was the aunt of three damaged and difficult children aged 15, 14 and 7, all of whom had special needs. The children's 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, but three separate placements broke down as the foster carers could not cope.
Tower Hamlets approached the aunt and asked if she would care for the children. She agreed, giving up her job as an art restorer and moving – at the council’s request – to a larger house in a semi-rural area out of London. She became dependent on state benefits.
The aunt was formally approved as the foster carer in February 2011, with a review concluding that she provided an excellent standard of care that would be difficult to replicate elsewhere.
In the judicial review proceedings the aunt challenged the policy and practice of Tower Hamlets whereby she, as a family foster carer, received less money than she would receive as an unrelated foster carer looking after the same children.
In the High Court Males J described the claimant “as one of the unsung heroines of our society”.
The judge ruled that the council’s policies were unlawful “to the extent that they discrimate on the grounds of the pre-existing relationship with the child between family and unrelated family carers".
Males J reached this decision as a matter of domestic public law and did not determine an alternative ground of challenge based on Article 14 (unlawful discrimination), in conjunction with Article 8 (right to respect for family life), of the European Convention on Human Rights.
The High Court judge 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.”
Males declared that Tower Hamlets’ 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.
Tower Hamlets appealed but the Court of Appeal has also ruled in favour of the aunt.
Lord Justice Maurice Kay, giving the unanimous judgment of the court, said the real issues in the case were whether Tower Hamlets departed from the statutory guidance and if so, whether it had cogent, permissible reasons for so doing.
The Court of Appeal judge said he was in no doubt that the council did not comply with the statutory guidance which, when read as a whole, seeks to ensure that allowances and fees paid to family foster carers should not be less than those paid to their unrelated colleagues.
“On any view, X is being treated unequally, in particular in relation to fees. Males J was incontrovertibly right about that,” Maurice Kay LJ said.
He added that the “final and most important question” was whether Tower Hamlets had established cogent reasons justifying a departure from the statutory guidance.
Maurlce Kay LJ concluded that it was impossible to say that the High Court judge had reached a wrong conclusion about the absence of cogent reasons.
The Court of Appeal judge said the statutory guidance had at its heart a policy that, absent cogent reasons, there should be no differentials between family and unrelated foster carers.
“The policy is a reflection of the statutory requirement set out in section 22C(7)(a) which gives preference to family and friends as foster carers. This is undoubtedly based on the understandable view that, usually, this will have the best chance of achieving a successful outcome in what are very often extremely challenging circumstances,” he added.
“Although it is not suggested that X [the aunt] will give up the responsibilities she so impressively undertakes if she is not equiparated with unrelated foster carers, the success of the statutory preference is plainly underwritten by the equal treatment guidance.”
Maurice Kay LJ said he appreciated that a local authority also had the difficult task of securing, so far as was reasonably practicable, the provision for children in its area of accommodation which met their needs.
“To that extent, there may be a need to incentivise unrelated foster carers who significantly outnumber family foster carers (of whom there are about a dozen in Tower Hamlets). But there is no evidence that unrelated foster carers seek a differential over and above their family colleagues.”
The Court of Appeal judge continued: “Moreover, as Males J pointed out…., where unrelated foster carers do have additional qualifications, it is possible, within the statutory guidance, to have a fee structure which permits differentiation on that ground….
“It was the council’s failure to consider and seek alternatives that led Males J to the conclusion that a policy of differentials based purely on the basis of the lack of a pre-existing relationship could not be said to carry with it cogent reasons for departure from the statutory guidance. I agree with that conclusion.”
Maurice Kay LJ went on to suggest that there was “much that is unsatisfactory” about the council’s policy to the extent that it lacked clarity as between allowances and fees.
He added: “As it is now in the process of reconsidering its policy, the council would be well advised to ensure clarity in the future.”
The aunt’s lawyer, Rebecca Chapman of Ridley & Hall Solicitors, said the case would have wide ranging implications for all local authorities who paid less to family and friends carers.
She highlighted how in this case the kinship carer received around £600 per week to care for the three children, whereas an unrelated foster carer would have received over £1,200 per week to care for the same children.
The aunt did receive an enhancement on the fostering allowance due to the needs of the children but she was only entitled to half the allowance as she was a kinship carer.
Chapman added: “It has been a long battle but I am absolutely delighted for my client. This means that she can now be treated equally compared to unrelated foster carer so she should be able to receive the same fees and training. This will have an enormous impact on my client as she will have enough money to be able to continue to care for the three very demanding children.”
The Ridley & Hall claimed that she was already aware of several local authorities who would have to change their policies in light of this decision.
The aunt said: “I am really pleased that I am now finally eligible for the same benefits and fees as an unrelated foster carer. This is now much fairer as before I was doing the same job as an unrelated foster carer without the benefits, the only difference was that I succeeded where the other carers did not.”