One issue which regularly rears its head within legal proceedings is the issue of payments to carers, especially where those carers are related to the child. There has been a very interesting recent decision in the Court of Appeal in relation to payments to a foster carer which may well be of relevance to all of us should a similar issue arise in one of our cases.
In summary the facts were that X was an aunt approved as a foster carer by the London Borough of Tower Hamlets and what was not in doubt was that she was a phenomenal lady described by Justice Males in the Administrative Court as “one of the unsung heroines of our society”. She received such glowing praise as she became the foster carer for the three very damaged and difficult children, children who it should be noted had suffered three previous placement breakdowns with other foster carers that had led to them being separated prior to X caring for them all together. If you have time to consider the Judgement in full you will see the enormity of the needs of these children aged 16, 14 and 7. The full citation for the case, should you want to have a good read of it, is: [2013] EWCA Civ 904 case number: C1/2013/0828.
The issue related to the financial support which X was receiving and she made an application for a Judicial Review of the policy of the London Borough of Tower Hamlets. It argued that the amount paid to her was substantially less than the amount which would be paid to her if she were unrelated to the children. It argued that she did not, as a matter of course, receive allowance for festivals or birthdays, she did not receive any fostering fee although unrelated foster carers did receive such fees, and she did not receive the “reward/fee” element of the additional payments which could be made to unrelated foster carers of children with disabilities in accordance with the Council’s policy.
At first instance Mr Justice Males in the administrative court found 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 provide for different treatment of family and unrelated foster carers. Moreover, he did not consider that the departure from the statutory guidance could be characterised as so minor that there could be deemed to be substantial compliance.
By way of remedy Males J declared the Council’s fostering policies to be unlawful to the extent that they discriminated on the grounds of pre-existing relationships with the child between family and unrelated foster carers in the payment of the fostering fee and the “reward/fee” elements of the payment made to carers of children with disabilities. Rather than granting further relief he accepted that the London Borough of Tower Hamlets would need time to reconsider its policies for which he allowed a period of three months with liberty to apply in the event that a new policy was not issued within that time.
The decision of Males J was appealed by the London Borough of Tower Hamlets and the Court of Appeal ultimately concluded that the appeal should be dismissed and made an order extending the time within which the Council should reconsider its policies. Interestingly, and as with Males J, the Court of Appeal resisted the temptation to venture into the alternative proposed course of a European Court of Human Rights challenge.
This case is therefore very helpful to us all in the event that we find that family carers are being treated unequally in terms of financial support in comparison with unrelated foster carers. It must be remembered that this is an issue which Judges are unlikely to agree to get involved in within care proceedings and any such challenges would have to be addressed through a judicial review application as in this case.
This issue is also fairly topical in the North West, as there has been a very recent report from the Local Government Ombudsman on an investigation into a complaint against Liverpool City Council dated 24th July 2013. Mrs X complained that in 2010, Liverpool City Council failed to recognise that when she cared for her nephew, the child should have been considered as a looked after child and the Council should have provided her with appropriate financial support. She also complained that when she obtained a Special Guardianship Order for her nephew in 2012 the Local Authority’s decision as to what it should pay her was flawed.
The Ombudsman found that:
- The local authority should have recognised Mrs X’s nephew (and his siblings) as looked after children in 2010 and Mrs X should have been paid a family and friends fostering allowance while caring for them.
- The local authority failed to consider whether it should remove an amount for child benefit from her special guardianship allowance as the government recommends against doing so.
- The local authority failed to pay Mrs X special guardianship allowance at the same rate as it pays fostering allowances to his foster carers, as is required by law.
- The local authority failed to pay its foster carers who care for children aged 0 – 4 years old at the national minimum fostering allowance set by the government each year.
As the Council’s failures in points c and d above potentially affect other foster carers and others in receipt of a special guardianship allowance, the Ombudsman asked the Council to also consider a suitable remedy for those people affected.
Interestingly the Council quickly accepted its faults and agreed to provide a remedy to Mrs X and to others affected by its failure to pay the correct rate for fostering allowance and special guardianship allowance. That amounted to a financial remedy for approximately 340 people. The Ombudsman decided to publish this report due to its wider public interest and the lessons that other Council’s could learn from this investigation. In short, Mrs X was paid £10,912 in backdated allowances.
I am sure we are all familiar with local authorities saying that children are placed with family members as a result of a “private arrangement” and that subsequently those children are not looked after, however in this particular instance that certainly did not appear to wash with the Ombudsman. This decision may well lead to other local authorities again reviewing their policies in relation to family carers and it is perhaps a timely lesson to us all to ensure that in cases involving family carers that they are being given the appropriate level of financial support and assistance.
By Paul Webb, Associate solicitor in the family law department