R X v London Borough of Tower Hamlets
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males: |
| Judgment Date | 08 March 2013 |
| Neutral Citation | [2013] EWHC 480 (Admin) |
| Date | 08 March 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/13267/2010 |
[2013] EWHC 480 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Males
Case No: CO/13267/2010
Miss Fiona Scolding (instructed by Ridley and Hall Solicitors) for the Claimant
Mr Kelvin Rutledge (instructed by London Borough of Tower Hamlets) for the Defendant
Introduction
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 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. 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.
a. Are the local authority's policies on the payment of fees and/or allowances to foster carers unlawful/irrational in so far as they provide for different payments to be made to family foster carers on the one hand and unrelated foster carers on the other?
b. Do such policies constitute unlawful discrimination contrary to Article 14 of the Convention?
c. Has the local authority unlawfully fettered its discretion in the application of its policy on the payment of enhanced allowances to family foster carers in "exceptional circumstances"?
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 legislation
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...
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