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Special guardianship allowance – new court ruling

Allan%20Norman%2060.jpgby Allan Norman

Barely had I finished writing my commentary on the Casewell case, when last week the courts were at it again, commenting on the interface between allowances for caring and benefits.The case in question, B v London Borough of Lewisham & Anor [2008] EWHC 738 (Admin) (17 April 2008) was brought by a grandmother receiving special guardianship allowances from Lewisham London Borough Council – who hereby win a prize for being the first council whose unsuccessful cases feature twice in my blogs!

Guardianship and fostering

Special guardianship allowances had been pegged significantly lower than fostering allowances aligned instead to adoption allowances. Lewisham argued, correctly, that special guardianship is in reality aligned more closely to adoption than fostering.

The court said:

First, on a proper reading of the relevant guidance, which Lewisham should have followed, special guardianship allowance should be set having regard to fostering allowances.

Second, that having regard to fostering allowances meant more than a token nod in the direction of fostering allowances before pegging them to something completely different.

Third – in a most unexpected twist – that there was indeed an argument that special guardianship and adoption allowances should be aligned, but that argument was that both should be aligned to fostering allowances.

Fourth, that Lewisham’s special guardianship allowance scheme and adoption allowance scheme were therefore both unlawful, because set too low.

Impact elsewhere

It is hard to conceive that this decision will not impact on other authorities across the country.
My blog on Casewell commented on the distinction between incentivising and remunerating care, and upon the poverty trap.

This case is not directly about the benefits system and the poverty trap, but it does offer the most damning indictment of the adequacy of benefit levels, since the judge also commented that even when allowances were pegged at the higher level of fostering allowances, payable on top of benefits, there was no element of remuneration, simply the actual cost of care.

How far short, then, are benefit levels themselves from actually covering the cost of care?

Allan Norman is Principal Social Worker & Solicitor at Celtic Knot, an independent law firm and social work practice.

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21 Responses to Special guardianship allowance – new court ruling

  1. Shirley Briggs 12 April , 2013 at 12:14 am #

    May I ask for your help We adopted our 14 year old son with complex needs we recieve an adoption allowance which is means tested each year through Coventry council.

    We live in Birmingham & was advised to apply for direct payments our case is due to go to panel next week 6th November we were told today by the social worker that her “Boss” had told her we may not get anything as we have enough money coming in! Can we have the Adoption Allowance & Direct payments?

    We don’t earn we are both retired! We were told we can’t get Income support carers premium etc as we don’t have enough money coming but we have some saving so don’t qualify! We have a birth son who is 36 but because I get the very basic state pension I lost my carers allowancw as well.

    Where is the system fair!I have been a Carer for 36 years & Foster Carer for almost 30 years & we adopted our last son & looked after my mother in law until she died 9 years ago.

    Can you give an answer to the question can we recieve Adoption Allowance & Directs Payments?

    Many thanks Shirley.

  2. Wiz 12 April , 2013 at 12:14 am #

    We have a case pending with Croydon Council for special guardianship and thy simply don’t want to give us any financial support.

    We have been looking after the child for 3.5 years and we wanted to know if there were any other benefit available for Special guardians if the Council does not pay out.

    We are not out for the money but could really do with the help but the council seem to be reluctant.

    Many thanx

  3. Tim Baron 12 April , 2013 at 12:14 am #

    Croydon will,like bromley take it to the line and lose.But you have to go all the way.Court i mean.

  4. Dave 12 April , 2013 at 12:14 am #

    We had an agreement with our local authority in 2002 to receive an adoption allowance based on their fostering allowance because of our financial circumstances. When they increased their fostering rate significantly in 2007 (there is no element of remuneration in the rate) they did not increase our adoption allowance accordingly and have now have told us their “maximum (adoption) allowance” is a figure of about 40% of the fostering allowance. We know other adopters who are receiving an allowance based on the higher figure. What can we do?

  5. Mrs Richardson 12 April , 2013 at 12:14 am #

    I have my 3 nephews for 4 yrs now, we have moved from kinship carer to SGO since then the allowance has decreased 3 times, We have been told that there is now a new rate and this will again decrease, I request reversing the SGO and was told we need a solicitor we cannot get legal aid and we were told if we do not sign the agreement for the decrease allowance they will cease to pay us any further.
    What can we do.

  6. michelle cliffe 12 April , 2013 at 12:14 am #

    i am new to this and am at the start of my jorney any advice

  7. Tim 12 April , 2013 at 12:14 am #

    If there is any chance of you being taken to court by parents do not go sgo route as you will be on your own.The lack of support for SPGs is across the board and my next attempt at a reasonable rate from the bromley borough,will have to be via the courts,from the recent appeal court decision they will lose but cost of legal action is a protection in itself to Boroughs.I am at present being taken to court by birth mother who has legal aid,which i do not qualify for.If you have a choice in my opinion it is residence order or adoption.In other words all or nothing and an sgo is in between.

  8. angela 12 April , 2013 at 12:14 am #

    i have a special guardianship for three young children and i have been told that my SGO allowance is means tested is this right by the SGO regulations

  9. michelle cliffe 12 April , 2013 at 12:14 am #


  10. Tim Baron 12 April , 2013 at 12:14 am #

    take legal advice looking at recent appeal court decision regarding london borough of lewisham.

  11. sue woodman 12 April , 2013 at 12:14 am #

    I have looked after my 12 yr old grandson, Jak virtually since the day he was born. My Daughter fell prey to post natal depression, almost immediately. I could never put into words what i felt the day after he was born, when i was faced with my Daughter’s decision to walk away from him. ” Refer to social services” on the end of his cot. You don’t need me to tell you, the bottom dropped out of my world. I don’t remember my journey home, i was in complete shock, i was worried that my partner, never having had any of his own children, would simply wave a fond farewell. To my astonishment,in answer to my question,” what do i do now” he simply said, we’ll have to get married, make an honest team for him to flourish and grow up in. I was already unable to work myself, due to a very dibillitating disease in my spine, coupled with a further diagnosis of rheumatoid arthritis, cud things get much worse, YES, there was no financial support for the first almost 10 yrs. When you love someone that much, you feel guilty about asking for help, we struggled beyond belief, somewhere along the way i lost sight of my Daughter, “my only child” i was so busy trying to juggle my condition, and raise a small person, with endless energy. With not enough money to make ends meet, you can imagine all the arguments lack of money caused. No one ever told us about any benefits, it was fate that got me talking to a lady who actually worked for another local authority, she was a social worker and told me how to go about getting this “special guardianship” allowance, however it is means tested, and you have to go thru a yearly review, to make sure you are still eligible to receive it. My personal opinion of this is that, unless you win the lottery, you should automatically be eligible for this financial support. Bearing a child, and raising it is one thing, when you take someone elses child on, this comes with significant “baggage”. I for one realise how hard things are out there for you guy’s who have taken on the role of raising your Grandchild/ren. Don,t feel guilty about asking for financial assistance, you deserve it, you are only trying to better your siblings future. I look forward to there being a Grandma’s and Grampy’s day sometime real soon, keep your spirits up, we make a difference, us Grandparents

  12. Sheila 12 April , 2013 at 12:14 am #

    I am trying to get some kind of information about Special Guardianship and allowances. My grandaughter has been in foster care for 18months and in December her mother was found guilty of abusing her. She and my son are no longer together and he was not on the scene when the injuries happened. The Local Authority want me to give up my full time job and become her Special Guardian. However I cannot get any information from them about allowances etc – how can I pay my bills if I give my job up as I am divorced. I am not entitled to Income Support etc as I have savings.

    I am really concerned about finances and how I would manage to keep her.

  13. angela 12 April , 2013 at 12:14 am #

    myself and my husband have taken our grandson on we only met him when we had aphone call from social services he was 6 weve had him living with us for 11months now .he has special needs and we are waiting to go to court for a sgso we have no help finacally but the social worker has said we will get an allowance his mother has only just stopped claiming for him

  14. Tim 12 April , 2013 at 12:14 am #

    Can anyone advise me ? I have been asked to apply for special guardianship of my nephew & advised that I will need the services of a solicitor. Can anyone tell me why & give an indication of cost?As I work I will not be entitled to legal aid – however my finances are tight and I cannot afford to pay for a solicitor unaided – am I able to claim any help from social services?

  15. janine 12 April , 2013 at 12:14 am #

    we passed for sgo on the 26th june this year the ss paid our legal fees which was nearly £5000 i was told but was told we would get sg allowance as yet not sorted it out they take out of your sg payments child benifit plus child tax u dont end up better off.

  16. Rita Mistry 12 April , 2013 at 12:14 am #

    I am a foster carer with a Local Authority and we are looking after a mixed parentage baby who is 7 and half months old. My link worker thinks the only option for this baby is to be adopted but the child’s social worker has approached us with a view for us to apply for special guardianship, how can we make sure that our application for special guardianship is accepted for this baby?

  17. elvira 12 April , 2013 at 12:14 am #

    well said my love

  18. elvira 12 April , 2013 at 12:14 am #

    onl chilb enifit they should not take your child tax credit they have stoped mine in june this year i got £334.00 every 2 weeks fighting the case good luck

  19. Tim Baron 12 April , 2013 at 12:14 am #

    If all special Guardians got together in their own borough can you imagine the legal action that could be taken.Bromley boroughs blood would run cold at the thought.

  20. julia allen 12 April , 2013 at 12:14 am #

    my nephew was in foster care and then placed with me this year by social services with no finacial help at first, but they have to pay you fostering allowance (kinship allowance)if they place a child with you,i had to fight for it wich took a while but i got it and got it backdated and have been getting it for a year now, they keep on asking me to go for special guadianship but you dont have to do that, dont let them force you into something you know little about as they dont seem to be able to tell you much about it themselfs!

  21. Jan Stanton 12 April , 2013 at 12:14 am #

    The most important thing if you are thinking about Special Guardianship as a kinship carer where the Local Authority have been involved is to getting negotiating with the LA before you give any notices etc.
    As a solicitor I can tell you that many solicitors will offer one-off fixed fee advice on how to approach this and the cost will be peanuts compared to what you ought to be able to get from your LA!