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The court of appeal's decision means that family and friends foster carers are entitled to the same financial support as unrelated foster carers
The court of appeal recently delivered an important ruling that will have an impact on social services departments' policies on payments to kinship foster carers. It gives an unequivocal message that these payments must be on the same level as those made to unrelated foster carers.
The London Borough of Tower Hamlets had appealed against a high court ruling that its policies on payments to kinship foster carers were unlawful. However on 24 July the court of appeal upheld the high court's decision. It confirmed that local authorities should (unless they have cogent reasons not to do so) follow statutory guidance stipulating that kinship foster carers should not be paid less than unrelated foster carers simply on the basis of a familial relationship.
The policies in question saw unrelated foster carers receive a weekly allowance of £334 for a child aged 11-15 years, while kinship foster carers only receive £163. Kinship foster carers did not qualify for the fee element of weekly allowance payments for caring for children with disabilities.
At the heart of this case was Ms X, praised by the judges as one of the unsung heroines of society. In 2009, Ms X gave up her job and financial independence to care for her 14 and 7-year-old nephews and 16-year-old niece; children with challenging needs who had suffered severe neglect in the parental home and experienced the breakdown of numerous professional foster care placements. The court of appeal noted that Ms X has "impressively" dedicated her time to providing the children with the stability their lives sorely lacked.
It agreed with the high court that the policies did not follow statutory guidance which provides that fees paid to foster carers must be payable to all meeting the applicable criteria, regardless of whether they are related to the children. The statutory preference for children to be placed with their families was underpinned by this equal treatment guidance.
The court of appeal affirmed that the council had no cogent reasons to depart from the guidance. It was not sufficient to reason that paying kinship and unrelated foster carers equally would put pressure on the council's finances. Meanwhile, the council's explanation that it needed to pay more to unrelated foster carers to incentivise them was rejected because there was no evidence that unrelated foster carers wanted different treatment from their family colleagues.
So what are the implications for local authority foster carers?
It is good news for family and friends foster carers who should not be denied fees and allowances payable to unrelated foster carers simply because they are related to the child. Any local authority policy which seeks to discriminate in this way can be challenged.
As for local authorities:
• They should follow statutory guidance which provides that there should be no discrimination between related and unrelated foster carers;
• Seeking to incentivise unrelated foster carers and the possible impact on budgets do not necessarily constitute good reasons to depart from the statutory guidance;
• Their policies should distinguish between allowances and fees;
• Criteria for foster care payments should be carefully considered and not differentiate on the basis of a pre-existing relationship.
Fiona Scolding and Amelia Walker of Hardwicke chambers represented Ms X in the court of appeal (instructed by Ridley Hall Solicitors)
The Fostering Network is inviting fostering families to come to a discounted day out to Merlin attractions on Sunday 6 October to celebrate the sons and daughters of foster carers.
Sons & Daughters: Celebrating the foster family is the Fostering Network’s annual campaign to celebrate the phenomenal contribution which the children of foster carers make to foster care. Every year in October, fostering services across the UK run events and activities in their local areas to show their appreciation for everything that these children and young people do.
We have teamed up with Merlin to offer this discounted day out during our Sons & Daughters campaign so these young people can have a treat in recognition of the amazing work that they do throughout the year. The specially discounted attractions in this offer are:
• Alton Towers
• Thorpe Park
• Warwick Castle
Lucy Peake, director of external affairs at the Fostering Network, said: “Every day we hear about the incredible sons and daughters of foster carers who make such a positive difference to the lives of children in care. By teaming up with Merlin we hope that we can contribute towards them having a lovely family day out, and feeling valued for their important role in fostering.”
We hope that fostering services will treat their foster families to this fun day out, or foster carer members can purchase their own tickets. Tickets must be booked in advance by calling Merlin and quoting a special code. Find out how to book your tickets (members only).
Around 340 carers in the Merseyside area will have their allowances backdated after an investigation by the Local Government Ombudsman (LGO) discovered Liverpool City Council had been underpaying them for years.
The investigation was brought about after a woman, who had been looking after her toddler nephew following a domestic violence incident, complained that the council was not paying her the correct benefits.
She claimed that the council did not consider her nephew a ‘looked after child’. As a result, she missed out on the appropriate support and financial payments that would have been available to her if the council had accepted that she was a family and friends foster carer, and the care she provided was not a ‘private arrangement’ between her and the child’s parents.
Some months later, and with the help of Liverpool City Council, the woman obtained a Special Guardianship Order for her nephew. And, while the council did pay her the Special Guardianship Allowance, it deducted Child Benefit from the amount she received despite the government recommending this should not happen when people also receive Income Support.
She also said that the amount she was receiving as a special guardian was lower than other foster carers in the area were awarded.
Investigating the individual case, the Local Government Ombudsman discovered a wider problem in the Liverpool area, affecting 340 carers city-wide.
It found that the council was failing to pay those foster carers who look after children aged 0 to four-years-old at the National Minimum Fostering Allowance set by government each year, and also failed to pay the Special Guardianship Allowance (a separate benefit for carers who have parental responsibility for the children in their care) at the same rate as its foster carers.
Nigel Ellis, Executive Director for Investigations at the LGO, said:
“Many councils struggle to recruit carers to look after children who find themselves – for whatever reason – unable to be looked after by their parents.
“So it is only fair that these people, who do such a good job of giving children the chance of family life, get the benefits and allowances they rightly deserve. These allowances are not ‘pay’ – they are used to clothe and feed the children being looked after.
“I’m pleased to say that Liverpool City Council has quickly accepted it is at fault and has agreed to backdate the benefits to both the complainant and the 340 other carers affected. I hope this swift response will go some way to alleviate the trouble the underpayment may have caused.
”I would urge other local authorities to look at their own procedures to ensure that carers in their areas are not experiencing the same problems that those in Liverpool have encountered.”
The LGO has recommended that the original complainant receive backdated allowances of £10,912 and be provided with notification about the rate at which she will be paid the Special Guardianship Allowance. Liverpool City Council has also agreed to pay that allowance without the deduction of Child Benefit while she is in receipt of Income Support.
Liverpool City Council has also agreed to carry out a review of its practice of deducting Child Benefit from those on Income Support in receipt of Special Guardianship Allowance.
The council has agreed to backdate payment of its Special Guardianship Allowance at the same rate as its Fostering Allowance rate from April 2010, affecting around 146 people. It will also pay all foster carers, looking after children under four, the Fostering Allowance in line with or above National Minimum Fostering Rates from April 2013 and will backdate the underpayment to April 2011, affecting an additional 194 carers.
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