Court action will test discriminatory fostering payments to kinship carers

The long-running debate about how much money councils should give
kinship carers has been reignited with the news that a grandmother
has mounted a legal challenge to get the same payments as
non-kinship carers (news, page 9, 26 February).

Solicitors for the woman, who cannot be named for legal reasons,
are arguing that Leeds Council should be paying a £100.20
allowance plus the £231.10 given to some non-kinship carers.

At the moment she only receives the £100.20 to care for her
13-year-old granddaughter, who was placed with her after suffering
severe physical and emotional abuse at her mother’s hands. As the
case is “live” Leeds Council have declined to comment other than to
state it is looking into the concerns.

The Leeds grandmother’s case is far from unique. In 2001, Mr
Justice Munby ruled that Manchester Council had to pay all foster
carers according to the needs of the child for whom they were
caring. But despite this ruling, there is evidence that carers who
are related to the child they are responsible for are failing to
get the same support as others.

Nigel Priestley of Ridley & Hall, a west Yorkshire-based firm
of solicitors, is representing the grandmother. The firm began
taking on such cases in 2002, a year after Munby’s judgment. Since
then Priestley has instigated proceedings against four Yorkshire
councils, all of which have settled before the cases reached
court.

More than a dozen cases are currently being handled by Ridley &
Hall and although they are primarily in west Yorkshire, Priestley
says there is no doubt the problem exists throughout England.
Potentially, hundreds of kinship foster carers could seek a
judicial review of their council’s decision to pay them less than
non-related foster carers.

Denise Joy, of the Grandparents’ Association, says payments are a
lottery and although the Munby ruling said there should be parity
across the board, many councils are still discriminating against
kinship carers.

Money is not the only issue for kinship carers. Research published
by the Joseph Rowntree Foundation found that around half were
struggling to cope with the young person’s behaviour and had
problems including money, loss of freedom and overcrowded
homes.¹

Half of those who took part in the study said they lacked support
partly because they were not offered the same training and access
to help from a social worker as was offered to non-kinship foster
carers.

Nearly three-quarters were aged over 50 and almost half were
grandparents who had taken on the responsibility when they could
have been looking forward to a slower pace of life.

For kinship foster carers who take on a child, often as the result
of an emergency, their life is transformed overnight. They might
have to deal with very challenging behaviour from the child and
this may affect their own health.

Priestley says: “Social workers must have the courage to tell
people what their legal rights are. Many have managers breathing
down their necks because of the resource implications and so are
not as willing to tell people what their legal rights are.

“It costs around £2,000 a week to accommodate a child in a
care home but kinship foster carers have to fight tooth and nail
for what they get,” he adds.

As well as the savings that kinship foster carers provide for the
government, research has shown that placements with foster carers
who are relatives also tend to break down less and these carers
tend to be more committed to the child. Children normally prefer to
be brought up with someone they know.

Professor Bob Broad, director of De Montfort University’s children
and families research unit, says the number of kinship foster
carers is increasing gradually each year and the Department for
Education and Skills needs to produce guidance on the issue.

Last year the Department of Health issued a paper to gauge the
scope of the problems, Friends and Family Carers, which said there
was a need “for local authorities to develop clear policies and
interagency plans regarding family care placements”.

It also said that councils needed to raise the profile of kinship
care, allocate responsibility for this area of service development
and perhaps designate workers or units to the issue.

But Broad says that now it has had its discussion about what needs
to be done regarding kinship care, the government must take action.
He says there are no central figures on the number of kinship care
arrangements and the Department of Health needs to start asking
councils to collect statistics.

But what will it take to make councils start paying kinship carers
the same as other foster carers? So far the Munby judgment has had
a limited impact and it is questionable that even with guidance
councils would change their policies given the resource
implications.

With relatives the government has a pool of people who not only
save it money but are unlikely to reject the children, despite
their struggle to cope, because of family ties.

Many are unwilling to press for more money to look after their
child or children because they worry that others will question
their motives for taking on the responsibility. Chief executive of
Baaf Adoption and Fostering Felicity Collier believes services for
family and friends carers could be best provided by specialist
trained workers financed by a new strand of government
funding.

Broad agrees there needs to be more guidance so that councils “live
the line and spirit of the Munby judgment” as well as better
financial support from central government.

In denying some children the same financial assistance as others
purely on the basis of who they live with, some councils are
effectively discriminating against a specific group of
children.

Moreover, they may be placed with relatives because of – in some
cases – child protection concerns and then find themselves living
in an impoverished home.

But whether the government will respond to the many concerns of
kinship foster carers remains to be seen. The children’s green
paper did not mention them, which does not bode well. Priestley
argues that the entrenched attitude which says that relatives
should automatically take on responsibility for children in their
own family will be hard to shift.

“The only way local authorities will change is if they are
compelled to by a judicial review,” he says.

¹ B Broad, R Hayes, C
Rushforth, Kith and Kin: Kinship Care for Vulnerable Young
People, Joseph Rowntree Foundation/National Children’s Bureau,
2001

The munby ruling

In November 2001, Mr Justice Munby ruled in an administrative court
case – R v Manchester Council, ex parte L & Others and ex parte
R and Others – that the local authority was wrong to pay kinship
foster carers less than other foster carers.

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

Munby ruled that the council’s policy was in breach of the European
Convention on Human Rights. It does not mean that local authorities
have to pay all carers the same amount but any difference in
allowances has to take into account the needs of the individual
child and not the status of the carer.