R (on the application of X) v Tower Hamlets London Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 2013 |
| Year | 2013 |
| Date | 2013 |
| Court | Queen's Bench Division (Administrative Court) |
Child – Care – Local authority – Looked after child – Foster care – Ways in which looked after children were to be accommodated and maintained – Local authorities to exercise social services functions under guidance of Secretary of State – Guidance stating foster carers related to children to receive same allowances and fees as foster carers unrelated to children – Policy of local authority to pay lower allowances and fees to related foster carers – Whether policy lawful – Local Authority Social Services Act 1970, s 7 – Children Act 1989, s 22C
Local authorities, in relation to children ‘looked after’ by them, were required by s 22C of the Children Act 1989 to arrange ‘the most appropriate placement available’ for children for whom arrangements that they live with one or both of their parents could not be made. In determining what was most appropriate, preference was to be given to a placement with an individual who was a relative, friend or other person connected with the child and who was also a local authority foster parent over any other arrangement, including a placement with any another local authority foster parent or a registered children’s home. A local authority could determine the terms on which they placed a looked after child with a local authority foster parent, including terms as to payment. Section 7 of the Local Authority Social Services Act 1970 provided that local authorities, in the exercise of their social services functions, including the exercise of any discretion, ‘shall’ act under the general guidance of the Secretary of State. Statutory guidance issued under s 7 entitled Family and Friends Care: Statutory Guidance for Local Authorities stated principles under the heading ‘Family and friends foster carers’ which included that fostering services had to deliver services in a way which ensured 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 … there should be equity of provision and entitlement … the allowances paid by fostering services [to foster carers] 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’. Further guidance under s 7 was entitled The Children Act 1989 Guidance and Regulations Vol 4: Fostering Services. It was described as being designed to provide a
framework for practice in providing a fostering service which emphasised ‘the importance of safeguarding and promoting the welfare of individual children’. It stated that ‘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 … 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’. X was the registered foster mother of three of her nephews and nieces, who were in the care of the local authority. The children had complex needs. Under the policies of the local authority the amounts paid to X as foster carer were substantially less than the amounts that would have been paid to her if she had been unrelated to the children. She did not receive any allowance for the children’s birthdays or for religious festivals or any fostering fee, although unrelated foster carers received such allowances and fees, and she did not receive the ‘reward/fee’ element of an additional payment made to unrelated foster carers of children with disabilities. However, the amounts she received exceeded the amounts payable in accordance with the national minimum fostering standards and included the ‘needs enhancement’ element of the additional payment for children with disabilities. X brought proceedings for judicial review on bases which included that the local authority’s policies were unlawful to the extent that they provided for different payments to be made to family foster carers and other foster carers. The local authority contended, inter alia, that the statutory scheme left it to local authorities to determine the terms, including payment terms, on which they would provide fostering services, but that if the authority’s policies providing for higher payments to be made to unrelated foster carers were contrary to the statutory guidance, there were cogent reasons for departing from it, as family foster carers and unrelated foster carers did different jobs, that what mattered was that the payments were sufficient to provide for the needs of the children in the authority’s care, that the authority needed to be able to provide rewards and incentives to unrelated foster carers to ensure that it was able to recruit and retain them, thereby fulfilling its statutory obligations, and that the consequence of declaring its polices to be unlawful would have a significant and potentially catastrophic impact on its ability to deliver services.
Held – Although the statutory scheme left it to local authorities to determine the terms, including the terms relating to payment of allowances and fees, on which they would provide fostering services, the freedom of the authorities to determine their own policies was not unconstrained. It was constrained by the clear intention of the legislation that children who could not continue to live with their parents should if possible be placed with family members who were able and willing to qualify as foster carers in preference to unrelated carers, and by the requirement to comply with the statutory guidance unless there were cogent reasons for not doing so. The local authority’s policies on fees and allowances were not in accordance with
the statutory guidance. Payment to X of amounts less than the amounts which would be paid to her if she were unrelated to the children was clearly contrary to the guidance as a whole. The guidance reflected two principles. One was the welfare principle, and the second was that there should be equality of treatment as between family and unrelated foster carers. The guidance directed local authorities to comply with both of those principles. Moreover, the second principle of equal treatment applied notwithstanding recognition of the existence of differences between the two kinds of carers. That was not the only approach which could reasonably have been taken; it was the approach which the guidance had in fact taken. The principle of equal treatment applied to fees as well as allowances. The guidance recognised the existence of differences between family and unrelated foster carers, which might mean that care was delivered in a different way. Nevertheless, it insisted on the principle of equal treatment so far as fees and allowances were concerned. To justify payment of differential allowances on the basis that the task of family foster carers and the expectations on them were different from those applicable to unrelated foster carers was contrary to the principle of equal treatment. The departure from the guidance could not be characterised as so minor that there had been substantial compliance, nor had the local authority discharged the burden upon it of showing sufficiently cogent reasons for departing from the principle of equal treatment of family and unrelated foster carers. If all reasonable possibilities had been considered and rejected for good reason, so that the local authority’s ability to perform its statutory duties would have been seriously affected by a declaration of illegality, the court would necessarily conclude that there had been sufficiently cogent reasons for departing from the guidance. Indeed that conclusion would suggest that the guidance itself had been fundamentally flawed. That however, on the evidence before the court, was not the position. It followed that, despite the good faith of the local authority, and the real and serious efforts which it had made to ensure, in very difficult circumstances and with limited resources, the best possible outcome for all the children, its policies had been unlawful. Accordingly there would be a declaration that the local authority’s 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 and (b) the ‘reward/fee’ element of the payments made to carers of children with disabilities (see [35], [68], [69], [71]–[79], [89]–[92], [94], [115], below). Dicta of Supperstone J in North East Northumberland at [34] applied. R (on the application of L) v Manchester City Council [2002] 1 FLR 43 considered.
Cases referred to in judgmentB v Lewisham London BC [2008] EWHC 738 (Admin), [2009] 1 FCR 266, [2008] 2 FLR 523.
Burnip v Birmingham City Council, Trengove (by her personal
representative) v Walsall Metropolitan BC, Gorry v Wiltshire CC[2012] EWCA Civ 629, [2012] LGR 954.
Francis v Secretary of State for Work and Pensions[2005] EWCA Civ 1303, [2005] 3 FCR 526, [2006] 1 All ER 748, [2006] 1 WLR 3202.
Humphreys v Revenue and Customs Comrs[2012] UKSC 18, [2012] 3 FCR 403, [2012] 4 All ER 27, [2012] 1 WLR 1545.
R v Islington London BC, ex p Rixon (1997) 32 BMLR 136.
R (on the application of F) v Wirral BC [2009] EWHC 1626 (Admin), [2009] LGR 905.
R (on the application of Forest Care Home Ltd) v Pembrokeshire CC [2010] EWHC 3514 (Admin), (2011) 14 CCLR 103.
R (on the application of L) v Manchester City Council [2001] EWHC Admin 707, [2002] 1 FLR 43.
R (on the application of McDonald) v Royal Borough of Kensington and Chelsea[2011] UKSC 33, [2011] 4 All ER 881.
R (on the application of Members of the Committee of Care North East Northumberland) v Northumberland...
To continue reading
Request your trial
-
London Borough of Tower Hamlets v R X
...Council [2002] 1 FLR 43 and R (on the application of Munjaz) v Mersey Care NHS Trust [2006] 4 All ER 736 considered. Decision of Males J [2013] 2 FCR 225 Cases referred to in judgmentsAssociated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, CA. Pankin......