Council wrong to pay foster carers from same family less

Local authorities should not financially discriminate against
foster carers who are related to the children they foster. That was
the decision of the administrative court in R v Manchester council,
ex parte L & Others and ex parte R & others.

The case concerned two applications for judicial review of
Manchester council’s policy regarding foster payments for children
in care. In one case the maternal grandparents of three children
were the children’s long-term foster carers after care orders had
been made and in the other the children were placed with their
older half-sister on care orders after an independent social work
assessment – meaning that the children were looked after within the
terms of sections 22 and 23 of the Children Act 1989.

The issue was the legality of the policy which paid short-term
foster carers who were friends or relatives of a fostered child at
a significantly lower rate than other foster carers. The families
were unhappy and said that:

(i) the policy used the family’s sense of moral obligation to
compel them to accept a grossly inadequate level of financial
support, and was a financial disincentive to family members being
foster carers because the level of support was lower than that for
other foster children of similar ages

(ii) the policy was an attempt to apply financial pressure on
family members to get them not to access local authority
support

(iii) the policy did not comply with either article 14 of the
European Convention on Human Rights (non-discrimination) or article
8 which imposes a positive obligation on the council to promote the
right to respect for private and family life

(iv) the policy was an abuse of the council’s dominant position
in relation to foster parents and children and attempted to
transfer the financial burden of looked-after children to their
families and

(v) the policy excluded any flexibility to allow payment of the
normal fostering allowances to relative foster carers in
appropriate cases.

Mr Justice Munby agreed with the families, and allowed their
applications but did not accept that the less than worthy motives
attributed by them to the council were correct. He held that :

1. Section 23(2)(a) of the Children Act allowed councils to
determine in their discretion what the framework would be for
providing for fostering allowances. That discretion had to be:

1.1 applied to allow flexibility according to the needs of the
individual children concerned

1.2 exercised in light of the aim of the statutory framework
without reliance on irrelevant considerations, without disregarding
relevant principles, without being perverse and without conflicting
with any duties within the framework; and

1.3 applied to safeguard adequately the right to respect for
family life in article 8 of the convention, and to avoid
discrimination in breach of article 14 of the convention.

2. The council did not want to stop a relative or friend from
applying for a section 8 residence order, and its policy wanted to
ensure that a financial dependency was not created that would
inhibit that. This was entirely in accordance with the key
principle in section 26(3) of the Children Act, namely that all
appropriate steps should be taken to ensure that children were
placed with their families as far as possible, and was of course an
entirely legitimate matter for the council to consider.

3. The council’s policy was unlawful for four reasons:

3.1 it imposed an arbitrary and rigid cash limit on the amounts
that could be paid to relatives who were foster carers

3.2 it fixed the level of payments to relatives who were foster
carers at such a low level that there was inevitably a conflict
with the welfare principle and the council’s statutory duty

3.3 it was Wednesbury unreasonable* and

3.4 it fundamentally discriminated against short-term relative
foster carers and the children in their care.

The legitimate aim of the council did not mean that it could
sanction this policy.

4. The council’s obligation under both the Children Act and the
convention was to take all appropriate positive steps to ensure
that children should live with their families. Differing treatment
based on family relationships or treatment which had an additional
impact on family members, could only be justified by
counter-balancing factors of a compelling nature.

The council’s policy failed when tested against classic public
law principles, and therefore it inevitably failed under the
convention. It did not satisfy the key convention tests of
necessity and proportionality, thereby breaching articles 8 and
14.

Comment: This case clearly has implications for
all social services departments which support children placed
within their own families, where financial support is given at a
lower rate than for children placed in foster families where there
is no family relationship. The policies need to be reviewed
urgently to ensure compliance with the Children Act and the
European Convention on Human Rights.

* The 1954 case of Associated Provincial Picture Houses Limited
-v- Wednesbury Corporation (1947) 2 All ER 680 is the key case in
local government law, and indicates that in assessing a
discretionary decision made by a public body a court will only
interfere with the decision where it was so unreasonable that no
other authority could ever have come to it.

Bernadette Livesey

Human Rights Solicitor

Walker Morris