R (B) v Lewisham London Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 17 April 2008 |
| Neutral Citation | [2008] EWHC 738 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1048/2007 |
| Date | 17 April 2008 |
[2008] EWHC 738 (Admin)
The Honourable Mrs Justice Black
Case No: CO/1048/2007
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Knafler (instructed by Morrison Spowart) for the Claimant
Bryan McGuire (instructed by Lewisham Legal Services) for the Defendant
Nicholas Bowen (instructed by Lomax Lloyd-Jones) for the Interested Party
Hearing date: 14 th March 2008
Approved Judgment
Black J:
These proceedings concern the provision of financial support for a special guardian under sections 14A – F of the Children Act 1989 and the Special Guardianship Regulations 2005.
The Claimant (“the grandmother”) seeks judicial review of the decision of the Defendant (“the local authority”) as to the level of financial support that they will pay to her as the special guardian of her granddaughter, Mary, and of the legality of their Special Guardianship Allowance Scheme generally. Mary is the Interested Party in the judicial review proceedings. She appears through her litigation friend who was her guardian in the care proceedings which were commenced not long after Mary's birth.
Burton J considered the papers in October 2007 and ordered that the application for permission to commence judicial review proceedings should be adjourned into open court to be heard inter partes with the application for judicial review to follow immediately if permission was granted. By the time of that consolidated hearing in front of me, it was clear that there was an arguable case which merited full investigation and accordingly I granted permission at the outset. This judgment deals with the substantive judicial review.
The facts
Mary was born on 11 May 2005 and is just under 3 years old. She has lived with the grandmother since she was 6 months old. Also living with the grandmother are the grandmother's 18 year old son and her 12 year old grandson, P, who is Mary's half brother. Mary's mother is unable to look after her children herself because of her personal problems, including drug and alcohol misuse.
P has lived with the grandmother since she was a baby. There is a residence order securing the arrangement. The local authority made an initial grant of £3,000 which the grandmother used to improve her home when P came to live with her but have provided no further financial support in relation to him.
Mary was born very prematurely and had to stay in hospital for some months as a result of her medical condition. The local authority obtained the first of a series of interim care orders on 28 July 2005. In October 2005, Mary left hospital and was placed in the care of a specialist foster carer. On 1 December 2005, she moved to live with the grandmother. The grandmother was given an initial payment of £839.33 so she could buy essential equipment and furniture and £70 per week which was half the weekly amount that the local authority would normally pay by way of kinship allowance. At the beginning of April 2006, the figure was increased to a full kinship allowance of £141.38 per week.
By the time of the final hearing in the care proceedings on 8 November 2006, it was clear that the grandmother was providing Mary with an extremely high level of care. The guardian said in her report of September 2006 that Mary had made “truly incredible progress with her grandmother”. It was agreed between all parties that Mary should remain living with her under the auspices of a special guardianship order.
The grandmother cannot work whilst looking after Mary. She relies on income support and other benefits and plainly needs a special guardianship allowance. Considerable discussion therefore took place prior to 8 November 2006 about the financial support package that the local authority would provide to her as a special guardian to enable her to care for Mary. The grandmother was looking for a weekly income payment and also requested financial assistance to build a loft extension to her home so as to accommodate all the children properly.
By 8 November 2006, the local authority were offering £114.61 per week in addition to the state benefits that the grandmother would receive. Their figure was made up of a basic allowance of £82.27 plus 15% to reflect the high level of physical care that Mary needed and £20 for taxis. The figures were calculated in line with the local authority's newly devised Special Guardianship Allowance Scheme which allied special guardianship allowances to the authority's adoption allowances. Assistance with the loft extension was not to be forthcoming.
Both the grandmother and the guardian considered that the local authority were offering insufficient financial support. They argued, in particular, that it was wrong for the local authority to peg special guardianship allowances to adoption allowances. Deadlock was, however, reached.
It would have been open to the grandmother to withdraw her application for special guardianship at that stage in the light of the financial provision proposed by the local authority with the result that Mary would have remained in the care of the local authority. Given the quality of the care offered by the grandmother, in all probability Mary would have continued to be placed with her as a kinship placement and, assuming the grandmother received at least the full kinship allowance, the family would have been significantly better off. She did not take this course. She recognised that it was in Mary's best interests for her to become her special guardian and decided to invite the court to make a special guardianship order and then to commence judicial review proceedings in relation to the financial issues. Accordingly, on 8 November 2006, District Judge Crichton made a special guardianship order on the express understanding that the grandmother would commence these proceedings for judicial review in relation to the issue of financial support.
Despite the good progress Mary has made in her grandmother's care, she continues to have medical, sleep and developmental problems and she needs dedicated care. The grandmother has given up any hopes she had of a career. By the time Mary has grown up, she will have reached retirement age. Her income is likely therefore always to be restricted to income support, child benefit and whatever the local authority pay her by way of financial support. Following a review last year, the local authority currently pay £86.38 per week. This brings the grandmother's total income to £247.86 per week. Her expenditure on basic items exceeds this. It is £265.91 per week.
The law
The concept of special guardianship was introduced by the Adoption and Children Act 2002 which inserted sections 14A-F into the Children Act 1989.
By virtue of s 14F itself and the Special Guardianship Regulations 2005 (“the regulations”) made under s 14A-F, each local authority must make arrangements for the provision within their area of special guardianship support services which include counselling, advice and information, and financial support.
S 14F Children Act 1989 provides:
S 14F (1) Each local authority must make arrangements for the provision within their area of special guardianship support services, which means–
(a) counselling, advice and information; and
(b) such other services as are prescribed,
in relation to special guardianship.
(2) The power to make regulations under subsection (1)(b) is to be exercised so as to secure that local authorities provide financial support.
(3) At the request of any of the following persons–
(a) a child with respect to whom a special guardianship order is in force;
(b) a special guardian;
(c) a parent;
(d) any other person who falls within a prescribed description,
a local authority may carry out an assessment of that person's needs for special guardianship support services (but, if the Secretary of State so provides in regulations, they must do so if he is a person of a prescribed description, or if his case falls within a prescribed description, or if both he and his case fall within prescribed descriptions).
(4) A local authority may, at the request of any other person, carry out an assessment of that person's needs for special guardianship support services.
(5) Where, as a result of an assessment, a local authority decide that a person has needs for special guardianship support services, they must then decide whether to provide any such services to that person.
(6) If–
(a) a local authority decide to provide any special guardianship support services to a person, and
(b) the circumstances fall within a prescribed description,
the local authority must prepare a plan in accordance with which special guardianship support services are to be provided to him, and keep the plan under review.
(7) The Secretary of State may by regulations make provision about assessments, preparing and reviewing plans, the provision of special guardianship support services in accordance with plans and reviewing the provision of special guardianship support services.
(8) The regulations may in particular make provision–
(a) about the type of assessment which is to be carried out, or the way in which an assessment is to be carried out;
(b) about the way in which a plan is to be prepared;
(c) about the way in which, and the time at which, a plan or the provision of special guardianship support services is to be reviewed;
(d) about the considerations to which a local authority are to have regard in carrying out an assessment or review or preparing a plan;
(e) as to the circumstances in which a local authority may provide special guardianship support services subject to conditions (including conditions as to payment for the support or the repayment of financial support);
(f) as to the...
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