X, R (on the application of) v London Borough of Tower Hamlets

The claimant in this case is one of the unsung heroines of our society. Since August 2009 she has been the carer for, and since February 2011 the registered foster mother of, three damaged and difficult children. The children’s parents both have learning difficulties. Their mother has problems with drugs and alcohol. Their father has schizophrenia and is currently in a mental hospital. The children (who have three other siblings with whom this case is not concerned) experienced severe neglect from a young age. The eldest child, now aged 15, has learning difficulties, speech and language difficulties, and poorly developed social skills. She is emotionally very immature and has had thoughts of suicide. She has nocturnal eneuresis. She is currently under psychiatric care because she says that she hears voices. The middle child, aged 14, has autism and Tourette’s syndrome, with severe emotional difficulties, compulsive behaviour and a history of self harm. He has learning difficulties, speech and language problems, and features of ADHD. When he first arrived in the claimant’s care he was doubly incontinent, self harming, dribbled and spat constantly, and was very destructive of furniture and other objects. He still has problems controlling his continence. The youngest child, aged 7, has ADHD and autism and severe development delay, as well as asthma and a squint. Upon placement with the claimant he required constant supervision (including at night when he would wake up frequently, as he still does). He had tantrums and could behave violently. His behaviour at school still includes attacks on other children and members of staff. He too suffers from nocturnal eneuresis.

In 2007, after a lengthy period when social services had been involved with the family, the children were removed from the parental home in the London borough where they lived and were placed with foster carers. However, three separate placements each broke down as the carers could not cope. For a while the children lived separately from each other as no foster carer could be found to manage all three of them together. Eventually the local authority approached the claimant, the children's aunt, and asked if she would consider caring for them. She agreed to do so, although this involved giving up her job as an art restorer, which gave her financial independence and which she enjoyed, moving (at the local authority's request) to a bigger house in a semi rural area out of London (which posed its own problems, as the claimant is blind in one eye and cannot drive) and becoming dependent on state benefits.

In February 2011 the claimant was formally approved as a foster carer for the children. This required her to satisfy a number of stringent requirements, which many relatives caring for children would not be able to do. There are in fact only a dozen or so registered family foster carers (Footnote: ¹) currently caring for children looked after by this particular local authority. The panel which approved the claimant as a foster carer observed that it was highly unusual for three such complex children to be placed with a single foster carer, and that it was only permissible in this case because the alternative was to split up the family and because of the dedication of the claimant.

The children's most recent LAC (looked after child) reviews make clear that the claimant has provided an excellent standard of care and commitment to the children which it would be difficult (and, I add, which it did in fact prove to be impossible) to replicate elsewhere. These are extremely demanding and exhausting children and the emotional, physical and financial cost of caring for them is high, but the claimant has provided them with a safe and secure environment in which to grow up and has brought a measure of calm and stability to their lives. Despite their continuing and very significant problems, the children are now happy and settled in a way which would otherwise have been impossible. Indeed, the difficulty of providing any alternative and the extent of the burden undertaken by the claimant can be demonstrated further from the fact that although the local authority was willing to pay for respite care, for some two years it was impossible to find anybody willing to care for the children while the claimant had a break from them. This only became possible in about October 2012.

As the foster carer for the children, the claimant receives an allowance from the local authority, which is the local authority responsible for them. However, because it is the policy of this particular local authority to pay less (save in exceptional circumstances) to family foster carers than it pays to unrelated foster carers, the claimant receives less money from the local authority than she would if she were not the children's aunt. (Footnote: ²)

In these proceedings the claimant contends that the differential treatment of family foster carers on the one hand and unrelated foster carers on the other is unlawful, both as a matter of domestic law applying ordinary principles of public law and because it constitutes unlawful discrimination contrary to Article 14 (read with Article 8) of the European Convention on Human Rights. She contends also that the local authority’s failure to pay her an enhancement to the weekly allowance, in circumstances where she appears to qualify for such an enhancement in accordance with the council's policy on "exceptional circumstances", demonstrates that the council has unduly fettered its discretion in the application of that policy.

Accordingly, there are three main issues for decision.

The first two of these issues are issues of principle which do not depend on the particular circumstances of the claimant. I do not doubt that the allowance which the claimant receives, together with the other benefits to which she is entitled, both on her own account and on account of the children, leave her struggling to make ends meet and that she makes this claim with the interests of the children at heart. I accept also that, in view of their problems and resulting behaviour, the cost of caring for these children is particularly high, not least in practical terms such as expenditure on bedding and furniture. However, the first two issues are about whether the differential treatment of family and unrelated foster carers is lawful in principle.

From this two consequences follow. The first is that although it may be that the claimant (whose circumstances I have very briefly outlined above) is as deserving a claimant as one could imagine, the issues of principle to which this claim gives rise would apply equally to a family foster carer who was comfortably off and had no need of any additional allowance. The second is that the challenge to the local authority’s policies does not involve any contention that it is in breach of its statutory duty to meet the needs of the children in its care or any consideration of what those needs are. That is a consideration in the context of the third issue, which is specific to the claimant’s financial circumstances, but the first two issues are concerned only with whether it is unlawful for the local authority to pay less to family foster carers than it pays to others, even on the assumption that what it pays to family foster carers is sufficient to meet the needs of the children concerned. Thus, as Ms Fiona Scolding for the claimant accepts, these two grounds of challenge to the policies would fall away if the local authority simply reduced the payments made to unrelated foster carers to the same level as it pays to family foster carers, although that would not benefit the claimant and (because of its impact on the local authority’s ability to recruit and retain unrelated foster carers) could prejudice the interests of children generally. To put it crudely, perhaps, the claimant's challenge to the policies is not that she is not paid enough to enable the children's needs to be met, but that unrelated foster carers must not be paid more than family foster carers are paid.

The starting point when any question arises as to the upbringing of a child is the welfare principle contained in section 1 of the Children Act 1989, amplified in the case of children in need by the duty imposed on local authorities by section 17 to safeguard and promote the welfare of children by providing accommodation and other services. More specifically, the duties of local authorities in relation to children “looked after” by them (which includes children in care such as the children in this case) are set out in section 22 and following. Section 22C (inserted with effect from 1 September 2009 by the Children and Young Persons Act 2008) requires a local authority which is unable to arrange for such a child to live with one or both of its parents to arrange "the most appropriate placement available” and prescribes that in determining what is most appropriate, preference is to be given (other things being equal) is to a placement with an individual who is a relative, friend or other person connected with the child and who is also a local authority foster parent over any other arrangement, including a placement with some other local authority foster parent or a registered children's home.

Section 22C(10) and (11) provide:

“(10)

The local authority may determine –

…

(b)

the terms on which they place [a looked after child] with a local authority foster parent (including terms as to payment but subject to any order made under section 49 of the Children Act 2004).

(11)

The appropriate national authority may make regulations for, and in connection with, the purposes of this section.”

Section 49 of the Children Act 2004 came into force on 15 January 2005. It provides:

“The appropriate person may by order make provision as to the payments to be made –

(a)

by a local authority in England … to a local authority foster parent with whom any child is placed by that authority …”

In England “the appropriate national authority" and "the appropriate person" is the relevant Secretary of State. So far no order has been made under section 49 of the 2004 Act. There was some debate before me whether section 49 of the 2004 Act would enable the Secretary of State to prescribe that the payments made to family foster carers by local authorities should be the same as those made to unrelated foster carers. I am inclined to think that the section is in sufficiently broad terms to enable this to be done. However, whether or not that is right, section 22C(11) of the 1989 Act clearly includes a power to make such a regulation if the Secretary of State sees fit to do so. The Fostering Services (England) Regulations 2011 have been issued under section 22C(11) of the 1989 Act, but these Regulations do not address that question. They do provide, by paragraph 27 and Schedule 5, for a written foster care agreement to be entered into between fostering service providers and approved foster parents (which would include both family and unrelated foster carers), but such agreements need not say anything about payment, a subject which is not mentioned in the Regulations.

It follows that the Secretary of State has power to order by means of secondary legislation, which would be binding on local authorities, that family and unrelated foster carers should receive the same money payments, but no such order has been made.

Instead statutory guidance has been issued under section 7 of the Local Authorities Social Services Act 1970 (“LASSA 1970”). This provides that:

“Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.”

The relevant guidance issued pursuant to this section by the Department for Education is entitled “Family and Friends Care: Statutory Guidance for Local Authorities” (which, because of its rather cumbersome title, I shall call "the Family Care Guidance”). It is dated January 2011 and is addressed to those employed by local authorities and involved in children’s services. It is described as setting out “a framework for the provision of support to family and friends carers” which, in particular, “provides guidance on the implementation of the duties in the Children Act 1989 in respect of children and young people who, because they are unable to live with their parents, are being brought up by members of their extended families, friends or other people who are connected with them”. The guidance estimates that although up to 300,000 children in England are cared for full-time by a relative, friend, or other person previously connected with the child, as at 31 March 2010 there were 7,200 children placed with family members and friends who had been approved as their foster carers.

The status of this guidance is described in paragraph 1.5:

“Status of the guidance

This guidance applies in relation to England only. It is issued under section 7 of the Local Authority Social Services Act 1970 which requires local authorities in exercising their social services functions to act under the general guidance of the Secretary of State. Such guidance should be complied with by local authorities when exercising these functions, unless local circumstances indicate exceptional reasons that justify a variation. It is also issued under section 10 of the Children Act 2004. Local authorities and health partners/agencies in England must have regard to it when exercising their functions under that section.”

I consider at [27] to [35] below the status of this guidance as a matter of law and the extent to which local authorities are obliged to comply with it, including whether it must be complied with "unless local circumstances indicate exceptional reasons that justify a variation”. For the moment I would observe that this is a question of law and that the guidance cannot confer upon itself a greater legal force than it would otherwise have merely by saying so.

Chapter 4 of the guidance, headed “The Local Policy Requirement”, requires each local authority to “publish a policy setting out its approach towards promoting and supporting the needs of children living with family and friends carers” (see paragraph 4.2). Paragraph 4 .3 provides that:

“Whilst the detail of the policy is a matter for local determination within the length and extent of legislation and statutory guidance, it must address the matters outlined in the rest of this chapter.”

Those matters include a section beginning at paragraph 4.43, headed “Family and friends foster carers”, which state the following principles:

“4.44

… Fostering services must deliver services in a way which ensures that family and friends foster carers are fully supported to care for children placed with them and are not disadvantaged as a result of their prior relationship with the child. This includes access to training to support them in their role. Family and friends foster carers may benefit from some services being delivered in a different way, but there should be equity of provision and entitlement. It is not acceptable to discriminate against foster carers on the basis that they have a pre-existing connection with the child they are fostering.

4.45

Fostering services should ensure that all foster carers are equipped with the knowledge and skills to meet the care needs of children placed with them, and to achieve at least the minimum level of knowledge and skills outlined in the Children’s Workforce Development Councils (CWDCs) Training, Support and Development (TSD) Standards. Given that the TSD Standards are designed to equip foster carers with the knowledge and skills to provide an acceptable level of care to the children they look after, it is in the interests of the children that they should be achieved by all foster carers. In recognition of the fact that the context of family and friends foster care differs from other types of foster care, family and friends foster carers will work towards an amended set of standards and are given additional time to demonstrate achievement of standards.

4.47

Once approved as foster carers, the extent to which family and friends carers wish to be involved in training and formal support varies greatly. An authority should consider how training and support can be delivered to family and friends foster carers in a way which recognises their particular circumstances, needs and perspectives, helps them to understand the relevance and importance of participating in learning and development and makes it as easy as possible for them to engage. There may be benefits to incorporating training into support groups or providing specific training for family and friends’ carers. Evidence of learning and development may be available through the family and parenting support offered to family and friends carers.

4.48

The National Minimum Standards for Fostering Services cover fostering services’ responsibilities with respect to all their foster carers, including those who are family and friends. Fostering services must deliver services in a way which ensures that family and friends foster carers are fully supported to care for children placed with them and are not disadvantaged as a result of their prior relationship with the child.

4.49

Fostering allowances to foster carers must be sufficient to meet the cost to the carer of caring for the child and should be at least the minimum set annually by the Department for Education. The allowances paid by fostering services must be calculated for family and friends foster carers on the same basis as for all other foster carers, and any variation should relate to the child’s needs, the skills of the carer or some other relevant factor that is used as a criterion for all of the services’ foster carers.

4.50

A judicial review of Manchester City Council’s policy on payments of allowances to family and friends foster carers in 2001 (the Manchester City Council judgment) came about because foster carers who were relatives of the children they were caring for were paid significantly less allowance than non-relative carers. The court held that it was unlawful to discriminate against family and friends carers by paying them a lower allowance than non-relative foster carers. There is no requirement to pay a fee to reward the carer’s time, skills, commitment etc in addition to the allowance. Where a fee is paid, it must be payable to those foster carers who meet the criteria set out for the scheme, including foster carers who are family or friends.”

The case referred to in paragraph 4.50 of the guidance is R (L) v. Manchester City Council [2001] EWHC 707 (Admin), [2002] 1 FLR 42, a decision of Munby J which I consider further at [61] to [66] below.

The guidance includes, at Annex B, a summary of research evidence from 2008 and 2009 which referred to some of the difficulties faced by family foster carers, and which concluded that in some respects such carers were significantly more disadvantaged than unrelated foster carers, with 27% of them being lone carers, 31% having a disability or chronic illness, 35% living in overcrowded conditions, and 75% experiencing financial hardship.

Further guidance issued under section 7 of LASSA 1970 is “The Children Act 1989 Guidance and Regulations Volume 4: Fostering Services”, which is described as being “designed to provide a framework for practice in providing a fostering service, which emphasises the importance of safeguarding and promoting the welfare of individual children”. (I shall refer to this as "the Children Act Guidance”). This includes, beginning at paragraph 5.64, a section headed “Supporting foster carers”. Paragraphs 5.71 to 5.73 provide as follows:

“5.71

It is essential that all foster carers are given clear information about the criteria for making financial payments to them, including allowances, fees and other expenses. Allowances must be sufficient to cover the full cost of caring for each child placed with them, and must be reviewed annually. The Government has put in place a National Minimum Fostering Allowance (adjusted annually) which is the very minimum that should be provided to a foster carer for each child placed. Criteria for calculating allowances must apply equally to all foster carers, whether or not they are related to the child or the placement is long or short term (standard 28).

5.72

The Government has published a good practice guide to foster carer payments systems which gives helpful guidance about financial support to foster carers.

5.73

Fees are in addition to allowances and may be paid by fostering services to reflect the expertise and the nature of tasks undertaken by a range of foster carers. Where fees are paid by a fostering service these must be payable to those on their register of foster carers who meet the criteria set out for the scheme, including short and long-term carers and family and friends carers.”

The National Minimum Standards for Fostering Services referred to in the guidance include “Standard 28 – Payments to carers”, which provides as follows:

“28.1

Each foster carer receives at least the national minimum allowance for the child, plus any necessary agreed expenses for the care, education and reasonable leisure interests of the child, including insurance, holidays, birthdays, school trips, religious festivals etc, which cover the full cost of caring for each child placed with her/him. …

28.5

There is a clear and transparent written policy on payments to foster carers that sets out the criteria for calculating payments and distinguishes between the allowance is paid and any fee paid. …

28.7

Criteria for calculating fees and allowances are applied equally to all foster carers, whether the foster carer is related to the child or unrelated, or the placement is short or long term.”

Thus, the guidance draws a distinction between allowances which are used to provide for the needs of the child and to meet expenses incurred by the foster carer on the one hand, and fees which are paid to reward foster carers for their services and which may reflect the expertise and the nature of the tasks undertaken by the foster carers on the other hand.

Standard 30 is also relevant. Entitled "Family and friends as foster carers”, it includes the following provisions:

“30.1

The needs and circumstances of family and friends foster carers are taken into account when determining the fostering service's policies and practices. …

30.10

Financial and other support is provided to all foster carers according to objective criteria that do not discriminate against foster carers that have a pre-existing relationship with the child. Family and friends foster carers may require some services to be delivered in a different way, but there should be equity of provision and entitlement.”

The legal status of statutory guidance issued under section 7 of LASSA 1970 has been considered in a number of cases. In R v. Islington Borough Council, ex parte Rixon (1998) 1 CCLR 119 at [23] Sedley J described it in these terms:

“Clearly guidance is less than direction, and the word 'general' emphasises the non-prescriptive nature of what is envisaged… In my judgment Parliament… did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it. Such a construction would put this kind of statutory guidance on a par with the many forms of non-statutory guidance issued by departments of state. … in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.”

The guidance considered in R (Munjaz) v. Mersey Care NHS Trust [2005] UKHL 58, [2006] 2 AC 148 was concerned with the seclusion of patients in mental hospitals and was issued under section 118 of the Mental Health Act 1983 rather than under LASSA 1970. Nevertheless, what was said by Lord Bingham and Lord Hope of Craighead applies equally to guidance issued under LASSA 1970. Lord Bingham said at [21]:

“It is in my view plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters relied on by Mr Munjaz show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so. Where, which is not this case, the guidance addresses a matter covered by section 118(2), any departure would call for even stronger reasons. In reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires.”

At [69] Lord Hope of Craighead added:

“The Court of Appeal said in para 76 of its judgment that the Code is something that those to whom it is addressed are expected to follow unless they have good reason for not doing so: see R v Islington London Borough Council, ex p Rixon (1996) 1 CCLR 119, per Sedley J at p 123. Like my noble and learned friend Lord Bingham of Cornhill I would go further. They must give cogent reasons if in any respect they decide not to follow it. These reasons must be spelled out clearly, logically and convincingly. I would emphatically reject any suggestion that they have a discretion to depart from the Code as they see fit. Parliament by enacting section 118(1) has made it clear that it expects that the persons to whom the Code is addressed will follow it, unless they can demonstrate that they have a cogent reason for not doing so. This expectation extends to the Code as a whole, from its statement of the guiding principles to all the detail that it gives with regard to admission and to treatment and care in hospital, except for those parts of it which specify forms of medical treatment requiring consent falling within section 118(2) where the treatment may not be given at all unless the conditions which it sets out are satisfied.”

In that case the majority of the House of Lords held that sufficient reason had been demonstrated for departing from the Code.

More recently, in R (Forest Care Home Ltd) v. Pembroke County Council [2010] EWHC 3514 (Admin), (2011) 14 CCLR 103, after referring to these authorities Hickinbottom J doubted at [29] whether a local authority’s power to depart from statutory guidance was limited to cases where the departure was not “substantial”, although the point was not decisive in that case:

“The learned judge went on to insert a restriction on the authority's ability to deviate from the guidance, namely: "… but without the freedom to take a substantially different course". I hesitate to do anything but agree with that too, because of the eminence of (now) Sedley LJ as an administrative lawyer and the fact that the point is not going to be determinative in this claim: but it seems to me, as a matter of principle, Parliament has given the relevant decision-making power to the local authority and, despite the terms of section 7 of the 1970 Act, it would be open to an authority to depart even substantially from guidance if it had sufficiently compelling grounds for so doing. However, certainly, the more the proposed deviation from guidance, the more compelling must be the grounds for departure from it.”

That approach was followed by Supperstone J in R (Members of the Committee of Care North East Northumberland) v. Northumberland County Council [2013] EWHC 234 (Admin) at [34]. I respectfully agree. To impose a rule that a departure from the guidance must not be "substantial" however cogent the reason for that departure is unnecessary and potentially question begging as to how substantial a departure needs to be in order to be prohibited.

Black J’s formulation of the applicable principle in B v. Lewisham Borough Council [2008] EWHC 738 (Admin), [2008] 2 FLR 523 was in slightly different terms, referring to a duty "substantially to follow” the guidance unless there was good reason not to do so. She said at [54]:

“Whilst I accept that the guidance does not have statutory force, the local authority had a duty substantially to follow it unless there was good reason to do differently.”

For practical purposes this formulation comes to much the same thing as the other cases referred to, although with the added emphasis that guidance is only guidance and need not be followed inflexibly to the letter in every respect.

In summary, therefore, the guidance does not have the binding effect of secondary legislation and a local authority is free to depart from it, even "substantially". But a departure from the guidance will be unlawful unless there is a cogent reason for it, and the greater the departure, the more compelling must that reason be. Conversely a minor departure from the letter of the guidance while remaining true to its spirit may well be easy to justify or may not even be regarded as a departure at all. The court will scrutinise carefully the reason given by the authority for departing from the guidance. Freedom to depart is not necessarily limited to reasons resulting from “local circumstances” (see [18] above), although if there are particular local circumstances which suggest that some aspect of the guidance ought not to apply, that may constitute a cogent reason for departure. However, except perhaps in the case of a minor departure, it is difficult to envisage circumstances in which mere disagreement with the guidance could amount to a cogent reason for departing from it.

The local authority’s policies challenged in these proceedings are to be found in three documents.

The first, issued in March 2011, is entitled “Finance and payments to foster carers” and applied from April 2011 onwards. A marginal summary provides as follows:

“Each foster carer receives an allowance and agreed expenses, which cover the full cost of caring for each child or young person placed with her or him.”

The policy itself provides as follows:

“1.

The authority pays the foster carer allowance for each child placed in her or his care, based on the child’s age and requirements, and in accordance with the full cost of bringing up a foster child within the family.

2.

Allowances are reviewed annually.

3.

The authority has a written policy on fostering allowances; this and the current allowance levels are well publicised and provided annually to each carer.

4.

The foster carer is reimbursed – on provision of appropriate receipts –for additional expenses associated with her or his task against a list of agreed expenses published and provided by the authority.

5.

Where expenditure of a significant sum is involved, the facility exists for the carer to claim such expenses in advance. …

11.

The foster carer uses all payments of allowances and expenses related to her or his role as a carer for the purpose intended and to ensure that the needs of the child in her or his care are met.”

It would appear, therefore, that the payments described in these paragraphs constitute allowances and expenses to be used for the benefit of the child, as distinct from fees paid to reward foster carers for their services. The policy goes on to say that:

“It also provides additional remuneration for those who achieve the NVQ Level 3 qualification, and so creates a payment structure, which reflects evidenced skills. This was introduced following detailed consultation with foster carers.”

The next section of the policy sets out the weekly rates paid to foster carers. It draws a distinction between “short and long term carers” on the one hand and “family and friends carers” on the other. The former group are also referred to by the local authority as “in-house carers” because they are employed by it, although they are only paid during periods when a child is placed with them and not during periods when they are merely available for a placement. The payments to family foster carers are notably lower than those paid to short and long term carers. The comparison is as follows, using the weekly rates applicable at April 2010, which applied also during the 2011/12 financial year, the difference in each case being £171:

In both cases these allowances include the cost of clothing (although with an additional payment of £100 when a new school uniform has to be purchased) and transport of children to school, activities and contact with parents, at any rate when the distances concerned are no greater than seven miles.

The explanation given in the policy for the lower rates paid to family foster carers is as follows (it will be noted that the payments are referred to as “allowances”, not “fees”):

“These are carers who are asked to do a different task to that of other foster carers. These carers are all relatives of children looked after with more than half of them being grandparents. The task and expectations of Family and Friends carers is significantly different to that of other foster carers. The differences include:

•

Lower standards expected of attendance at training and support groups.

•

There is no expectation of availability to take placements when vacant.

•

A less broad set of caring skills is required for these carers.

The allowance rates for these carers reflect these differences and are based on the Department of Education National Minimum Fostering Allowances. …

An enhancement to the weekly allowance can be considered if a child has special needs, provided it does not exceed the amount which would have been payable if the child were fostered in a [local authority] foster placement.

Festive/birthday and holiday payments will not be payable to Family and Friends carers.”

The festival and birthday allowances (not paid to family carers) are £170 for a child’s birthday and a further £170 annually (usually paid in the first week of December) for religious festivals. An annual holiday allowance of £450 per child is also payable.

The policy goes on to outline the career structure available to foster carers who obtain NVQ qualifications. Obtaining a full NVQ award entitles a foster carer to a one-off payment of £250, plus an additional £30 per week while they have at least one child in placement. In order to earn this additional payment they may be required to support other carers through participation in a mentoring scheme. A recruitment bonus of £400 is payable to a carer who helps the local authority recruit another carer.

The authority’s second policy document is dated November 2011 and sets out a number of “key principles”. These include:

“4.

Approved Family and Friend Foster Carers and Foster Carers who are fostering a child for the borough will not be financially assessed in respect of their allowances.

5.

An enhancement of the weekly allowance can be considered in exceptional cases where the Council considers this is required by the individual’s circumstances. The total amount of an allowance with enhancement will generally not exceed the amount which would have been payable if the child were fostered.”

This key principle is further developed in the section headed “Family and Friends Foster Carer Allowances”, which includes the following:

“3.4

Family and Friends Foster Carers are not eligible for birthday, festival or holiday grants.

3.5

An enhancement to the weekly allowance can be considered in exceptional circumstances if it is considered that the individual’s circumstances require a higher payment. Whether an enhancement should be paid and, if so, in what amount, would depend upon the overall financial assessment, any essential carer’s costs associated with the special needs and or circumstances, whether there is some other means of meeting those costs and the resources available to the Council.

3.6

Examples of situations in which an enhancement may be considered are as follows: (a) where a child has an exceptionally high level of need involving significant expense which is not otherwise provided for in this guidance or reflected in any other payment or award (including by the Council); (b) where for geographical or other reasons the cost of living is significantly higher than the national average; or (c) where the carer has significant additional responsibilities involving further expense, for example caring for an elderly relative.

3.7

The amount of an enhancement will generally not be such that the financial support exceeds the amount which would have been payable if the child were fostered.”

In fact a child placed with a relative who is an approved foster parent (such as the claimant) is fostered, but I understand the reference in these policies to the amount which would have been payable if the child were fostered to mean the amount which would have been payable by way of fees and allowances to an unrelated foster carer.

The November policy document illustrates that the rates payable by the local authority to family foster carers for 2011/12 exceeded the National Minimum Fostering Allowances set by the Department for Education. Further, and in contrast with the description of the payments in the March 2011 policy document, it refers to the differential between family and unrelated foster carers as a “fostering fee” of £171 per week paid to unrelated foster carers. Although the terminology used in the two documents is conflicting and confusing, in view of the explanation given for the differential it is probably better regarded as a fee, in accordance with the November 2011 document.

Finally, in April 2012, the local authority introduced an additional policy to deal with children with disabilities. This provided:

“1.

As from 1^st April 2012, in recognition of the higher support needs of Children with Disabilities, an increased weekly payment, up to the maximum the foster carer receives in Disabled Living Allowance for a child, may be payable to the foster carer.”

The criteria for receipt of this additional payment were that the foster carer should be an approved foster carer, the child should be looked after by the local authority, and the child should be in receipt of disabled living allowance. The claimant and all three children placed with her satisfy these criteria.

The policy goes on, however, to divide this “extra weekly allowance” into two parts:

“Allowance amounts

3.1

The maximum extra weekly allowance cannot be above the weekly Disabled Living Allowance for the particular child.

3.2

Fifty per cent of the extra weekly allowance is to be used towards the support needs of the child and this may include a contribution towards respite care payments.

3.3

Fifty per cent over the extra weekly allowance is in the form of a reward/fee element.”

However, family foster carers are not eligible to receive the fifty per cent of the payment which represents a reward or fee:

“Family and Friends Foster Carers

9.1

Family and Friends Foster Carers are eligible for the needs enhancement but not the reward/fee allowance.”

The thinking behind the differential treatment of family carers on the one hand and unrelated carers on the other is explained, to the extent that it is not already apparent from the March 2011 policy, by the local authority’s Group Manager (Resources) for its Children’s Services Department. His evidence is that:

The differences in the roles undertaken by family and unrelated foster carers are described in the following table produced by the local authority. In some respects the table describes the requirements which the two groups have to meet and in other respects it refers to the typical differences between them. Obviously some children placed with family foster carers may be more demanding than in the typical cases described:

The claimant currently receives from the local authority, not including a range of other benefits and payments, the following weekly fostering allowances:

These figures exceed the amounts payable in accordance with the National Minimum Fostering Standards and include the “needs enhancement” element of the additional payment for children with disabilities referred to in the April 2012 policy.

In addition, during the 2011/2012 financial year the local authority made payments for respite care on four occasions at a total cost of £2,134.68 and made various other payments for transport costs, a new tumble dryer, a settling in grant, and various items of equipment, amounting to over £7,500 in all. These payments include the rental of a holiday caravan, from which I infer that even though the local authority's policy is not to make holiday payments to family foster carers as a matter of routine, such payments are sometimes made and at least on this occasion were made in the present case. So far during the 2012/2013 financial year the local authority has made payments for transport to medical and other appointments and for respite totalling £1,652. The claimant also receives a range of state benefits including disability living allowance for each child, housing benefit and income support. The local authority estimates that the total allowances and benefits paid to the claimant for herself and the children exceed £50,000 a year. The claimant has not disputed this estimate.

Nevertheless, the amounts paid to the claimant are substantially less than the amounts which would be paid to her if she were unrelated to the children; she does not as a matter of course receive any allowance for festivals or birthdays; she does not receive any fostering fee, although unrelated foster carers do receive such fees; and she does not receive the “reward/fee” element of the additional payment made to unrelated foster carers of children with disabilities in accordance with the April 2012 policy. All that said, however, the local authority’s policy is to ensure that it does pay sufficient to the claimant (as it does to other family foster carers) to meet the needs of children placed with her. It insists, moreover, that this is not merely its policy, but that it does in fact do so, and that if the claimant does not accept this she has recourse to the local authority’s complaints procedure. For the purpose of the claimant’s challenge in principle to the local authority’s policies, this must be accepted.

The claimant's case is that the local authority's policies are unlawful to the extent that they provide for different payments to be made to the two categories of foster carers. In summary, Ms. Scolding for the claimant contends that:

In response Mr Kelvin Rutledge for the local authority contends that:

It is convenient to begin by examining the decision of Munby J in R (L) v. Manchester City Council. That was a successful challenge to the policy of Manchester City Council, whose policy was to pay all short-term foster carers allowances which were significantly below those recommended by the National Foster Carers’ Association, with short-term family foster carers being paid even less (less than one fifth of the rate paid to unrelated foster carers, which itself was below the recommended rate: see [24] of the judgment).

The policy was held to be unlawful on several grounds, not all of which are relevant here. One of these was that it had been made by council officers without proper delegated authority and would therefore have been quashed on that procedural ground alone (see [67]). Nevertheless, Munby J went on to consider the policy on its merits. Having done so, he held that it was unlawful on four grounds, identified at [78]. The first two of these, namely that the policy imposed an arbitrary and inflexible cash limit on the amounts that could be paid to family foster carers, and that the level of payments to such carers was fixed so low as to make a conflict with the welfare principle inevitable, do not arise in this case. On the contrary, in the present case, there is flexibility and the policy does ensure that the needs of the children are met. The third ground of illegality included the different treatment of family and unrelated carers, but also depended on a combination of several other features, including the very low rates, the failure in the case of family foster carers to provide uplifts in the rates paid for older children and the fact that the policy was designed to encourage (or at least not to discourage) relatives from applying for a residence order. Those additional features are not present here. The fourth ground of illegality was this:

“Finally, it is apparent that the policy, in effect if not in intention, is fundamentally discriminatory, discriminating against both those short-term foster carers who are relatives and those children in care who are fostered short term by relatives rather than by non-relatives.”

Munby J stated his conclusion so far as domestic law was concerned at [80]:

“I conclude therefore that, even without reference to the Convention, Mr McCarthy [counsel for L] has made good his case: Manchester’s policy is unlawful, not merely because of the essentially procedural defect, which is conceded by Mr Ryder [counsel for Manchester], but also and in any event on the wider substantive grounds relied on by the claimants.”

It appears, therefore, that Munby J regarded the discriminatory treatment of family foster carers as an independent ground for holding the Manchester policy unlawful as a matter of public law. In doing so he rejected Manchester's attempts to justify this different treatment by reference to (among other things) the difficulty of recruiting and retaining unrelated foster carers and the need to pay them competitive rates, a difficulty which was said not to be relevant in the case of family foster carers (see [52]), and also its limited financial resources (see [54] and [81] to [82]), although he accepted that limited financial resources was at least to some extent a relevant consideration (see [84]). However, the fact that Munby J was not impressed by these arguments must be seen in the context of the very low allowances being paid in that case and does not necessarily mean that they will never be of any force.

Since 2001 when R (L) v. Manchester City Council was decided, the applicable legislative and policy framework has changed. In particular, the statutory preference for placing children with family foster carers where possible which is contained in section 22C of the Children Act 1989 and the statutory guidance referred to at [15] to [26] above are both new. Indeed paragraph 4.50 of the guidance contained in the Family Care Guidance itself refers to the Manchester case as prohibiting discrimination against family foster carers by paying them a lower allowance than that paid to unrelated foster carers (see [20] above). Ms Scolding submits that these new provisions reinforce Munby J’s conclusion that discrimination against family foster carers is unlawful. I agree with that submission so far as it goes, although it remains necessary to test the lawfulness of the local authority's policies against the current legal framework. It is also necessary to keep in mind that the Manchester case was concerned with differential allowances, not fees, and that the question whether it was unlawful to pay fees to unrelated foster carers but not to family foster carers did not arise.

Having dealt with the issues arising as a matter domestic law, Munby J went on to consider the European Convention on Human Rights, holding at [97] and [98] that the council’s policy infringed both Article 8 (right to respect for family life) and Article 14 (unlawful discrimination). So far as Article 8 is concerned, however, in relation to cases involving priorities in the allocation of limited state resources the law has moved on since 2001 as a result of decisions in Strasbourg and here (R (McDonald) v. Royal Borough of Kensington & Chelsea [2011] UKSC 33, [2011] 4 All ER 881 at [15] to [19] and the Strasbourg cases there cited). This is so to such an extent that Ms Scolding accepts that in the present case the local authority’s policies do not infringe Article 8. The claimant's case under the Convention is limited to Article 14.