X, R (on the application of) v London Borough of Tower Hamlets [2013] EWHC 480 (Admin)

[2013] EWHC 480 (Admin)

Case No CO/13267/2010

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 08/03/2013

Before

THE HON. MR JUSTICE MALES

Between

The Queen on the application of XClaimant

London Borough of Tower HamletsDefendant

Miss Fiona Scolding (instructed by Ridley and Hall Solicitors) for Claimant

Mr Kelvin Rutledge (instructed by London Borough of Tower Hamlets) for Defendant

Hearing Hearing dates: 19 th& 20 th February 2013

Judgment

Introduction

[1]The claimant in this case is one of the unsung heroines of our society. Since August 2009 she has been the carer for, and since February 2011 the registered foster mother of, three damaged and difficult children. The children’s parents both have learning difficulties. Their mother has problems with drugs and alcohol. Their father has schizophrenia and is currently in a mental hospital. The children (who have three other siblings with whom this case is not concerned) experienced severe neglect from a young age. The eldest child, now aged 15, has learning difficulties, speech and language difficulties, and poorly developed social skills. She is emotionally very immature and has had thoughts of suicide. She has nocturnal eneuresis. She is currently under psychiatric care because she says that she hears voices. The middle child, aged 14, has autism and Tourette’s syndrome, with severe emotional difficulties, compulsive behaviour and a history of self harm. He has learning difficulties, speech and language problems, and features of ADHD. When he first arrived in the claimant’s care he was doubly incontinent, self harming, dribbled and spat constantly, and was very destructive of furniture and other objects. He still has problems controlling his continence. The youngest child, aged 7, has ADHD and autism and severe development delay, as well as asthma and a squint. Upon placement with the claimant he required constant supervision (including at night when he would wake up frequently, as he still does). He had tantrums and could behave violently. His behaviour at school still includes attacks on other children and members of staff. He too suffers from nocturnal eneuresis.

[2]In 2007, after a lengthy period when social services had been involved with the family, the children were removed from the parental home in the London borough where they lived and were placed with foster carers. However, three separate placements each broke down as the carers could not cope. For a while the children lived separately from each other as no foster carer could be found to manage all three of them together. Eventually the local authority approached the claimant, the children's aunt, and asked if she would consider caring for them. She agreed to do so, although this involved giving up her job as an art restorer, which gave her financial independence and which she enjoyed, moving (at the local authority's request) to a bigger house in a semi rural area out of London (which posed its own problems, as the claimant is blind in one eye and cannot drive) and becoming dependent on state benefits.

[3]In February 2011 the claimant was formally approved as a foster carer for the children. This required her to satisfy a number of stringent requirements, which many relatives caring for children would not be able to do. There are in fact only a dozen or so registered family foster carers I shall use the expression “family foster carer” because that is what the claimant is, although the applicable legislation, guidance and policies apply equally to foster carers who are friends rather than relatives of the child concerned. I shall use the expression “unrelated foster carers” to refer to those who have no pre-existing relationship with the child, whether as a relative or a friend. currently caring for children looked after by this particular local authority. The panel which approved the claimant as a foster carer observed that it was highly unusual for three such complex children to be placed with a single foster carer, and that it was only permissible in this case because the alternative was to split up the family and because of the dedication of the claimant.

[4]The children's most recent LAC (looked after child) reviews make clear that the claimant has provided an excellent standard of care and commitment to the children which it would be difficult (and, I add, which it did in fact prove to be impossible) to replicate elsewhere. These are extremely demanding and exhausting children and the emotional, physical and financial cost of caring for them is high, but the claimant has provided them with a safe and secure environment in which to grow up and has brought a measure of calm and stability to their lives. Despite their continuing and very significant problems, the children are now happy and settled in a way which would otherwise have been impossible. Indeed, the difficulty of providing any alternative and the extent of the burden undertaken by the claimant can be demonstrated further from the fact that although the local authority was willing to pay for respite care, for some two years it was impossible to find anybody willing to care for the children while the claimant had a break from them. This only became possible in about October 2012.

[5]As the foster carer for the children, the claimant receives an allowance from the local authority, which is the local authority responsible for them. However, because it is the policy of this particular local authority to pay less (save in exceptional circumstances) to family foster carers than it pays to unrelated foster carers, the claimant receives less money from the local authority than she would if she were not the children's aunt. 2 There is evidence that other local authorities have a similar policy, although the details of such policies are not in evidence.

[6]In these proceedings the claimant contends that the differential treatment of family foster carers on the one hand and unrelated foster carers on the other is unlawful, both as a matter of domestic law applying ordinary principles of public law and because it constitutes unlawful discrimination contrary to Article 14 (read with Article 8) of the European Convention on Human Rights. She contends also that the local authority’s failure to pay her an enhancement to the weekly allowance, in circumstances where she appears to qualify for such an enhancement in accordance with the council's policy on "exceptional circumstances", demonstrates that the council has unduly fettered its discretion in the application of that policy.

[7]Accordingly, there are three main issues for decision.a. Are the local authority’s policies on the payment of fees and/or allowances to foster carers unlawful/irrational in so far as they provide for different payments to be made to family foster carers on the one hand and unrelated foster carers on the other?

b. Do such policies constitute unlawful discrimination contrary to

Article 14 of the Convention

c. Has the local authority unlawfully fettered its discretion in the application of its policy on the payment of enhanced allowances to family foster carers in “exceptional circumstances"?

[8]The first two of these issues are issues of principle which do not depend on the particular circumstances of the claimant. I do not doubt that the allowance which the claimant receives, together with the other benefits to which she is entitled, both on her own account and on account of the children, leave her struggling to make ends meet and that she makes this claim with the interests of the children at heart. I accept also that, in view of their problems and resulting behaviour, the cost of caring for these children is particularly high, not least in practical terms such as expenditure on bedding and furniture. However, the first two issues are about whether the differential treatment of family and unrelated foster carers is lawful in principle.

[9]From this two consequences follow. The first is that although it may be that the claimant (whose circumstances I have very briefly outlined above) is as deserving a claimant as one could imagine, the issues of principle to which this claim gives rise would apply equally to a family foster carer who was comfortably off and had no need of any additional allowance. The second is that the challenge to the local authority’s policies does not involve any contention that it is in breach of its statutory duty to meet the needs of the children in its care or any consideration of what those needs are. That is a consideration in the context of the third issue, which is specific to the claimant’s financial circumstances, but the first two issues are concerned only with whether it is unlawful for the local authority to pay less to family foster carers than it pays to others, even on the assumption that what it pays to family foster carers is sufficient to meet the needs of the children concerned. Thus, as Ms Fiona Scolding for the claimant accepts, these two grounds of challenge to the policies would fall away if the local authority simply reduced the payments made to unrelated foster carers to the same level as it pays to family foster carers, although that would not benefit the claimant and (because of its impact on the local authority’s ability to recruit and retain unrelated foster carers) could prejudice the interests of children generally. To put it crudely, perhaps, the claimant's challenge to the policies is not that she is not paid enough to enable the children's needs to be met, but that unrelated foster carers must not be paid more than family foster carers are paid.

The legislation

[10]The starting point when any question arises as to the upbringing of a child is the welfare principle contained in section 1 of the Children Act 1989, amplified in the case of children in need by the duty imposed on local authorities by section 17 to safeguard and promote the welfare of children by providing accommodation and other services. More specifically, the duties of local authorities in relation to children “looked after” by them (which includes children in care such as the children in this case) are set out in section 22 and following. Section 22C (inserted with effect from 1 September 2009 by the Children and Young Persons Act 2008) requires a local authority which is unable to arrange for such a child to live with one or both of its parents to arrange "the most appropriate placement available” and prescribes that in determining what is most appropriate, preference is to be given (other things being equal) is to a placement with an individual who is a relative, friend or other person connected with the child and who is also a local authority foster parent over any other arrangement, including a placement with some other local authority foster parent or a registered children's home.

[11]Section 22C(10) and (11) provide:

“(10) The local authority may determine – … (b) the terms on which they place [a looked after child] with a local authority foster parent (including terms as to payment but subject to any order made under section 49 of the Children Act 2004). (11) The appropriate national authority may make regulations for, and in connection with, the purposes of this section.”

[12]Section 49 of the Children Act 2004 came into force on 15 January 2005. It provides:

“The appropriate person may by order make provision as to the payments to be made – (a) by a local authority in England … to a local authority foster parent with whom any child is placed by that authority …”

[13]In England “the appropriate national authority" and "the appropriate person" is the relevant Secretary of State. So far no order has been made under section 49 of the 2004 Act. There was some debate before me whether section 49 of the 2004 Act would enable the Secretary of State to prescribe that the payments made to family foster carers by local authorities should be the same as those made to unrelated foster carers. I am inclined to think that the section is in sufficiently broad terms to enable this to be done. However, whether or not that is right, section 22C(11) of the 1989 Act clearly includes a power to make such a regulation if the Secretary of State sees fit to do so. The Fostering Services (England) Regulations 2011 have been issued under section 22C(11) of the 1989 Act, but these Regulations do not address that question. They do provide, by paragraph 27 and Schedule 5, for a written foster care agreement to be entered into between fostering service providers and approved foster parents (which would include both family and unrelated foster carers), but such agreements need not say anything about payment, a subject which is not mentioned in the Regulations.

[14]It follows that the Secretary of State has power to order by means of secondary legislation, which would be binding on local authorities, that family and unrelated foster carers should receive the same money payments, but no such order has been made.

The statutory guidance

[15]Instead statutory guidance has been issued under section 7 of the Local Authorities Social Services Act 1970 (“LASSA 1970”). This provides that:

“Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.”

[16]The relevant guidance issued pursuant to this section by the Department for Education is entitled “Family and Friends Care: Statutory Guidance for Local Authorities” (which, because of its rather cumbersome title, I shall call "the Family Care Guidance”). It is dated January 2011 and is addressed to those employed by local authorities and involved in children’s services. It is described as setting out “a framework for the provision of support to family and friends carers” which, in particular, “provides guidance on the implementation of the duties in the Children Act 1989 in respect of children and young people who, because they are unable to live with their parents, are being brought up by members of their extended families, friends or other people who are connected with them”. The guidance estimates that although up to 300,000 children in England are cared for full-time by a relative, friend, or other person previously connected with the child, as at 31 March 2010 there were 7,200 children placed with family members and friends who had been approved as their foster carers.

[17]The status of this guidance is described in paragraph 1.5:

“Status of the guidance This guidance applies in relation to England only. It is issued under section 7 of the Local Authority Social Services Act 1970 which requires local authorities in exercising their social services functions to act under the general guidance of the Secretary of State. Such guidance should be complied with by local authorities when exercising these functions, unless local circumstances indicate exceptional reasons that justify a variation. It is also issued under section 10 of the Children Act 2004. Local authorities and health partners/agencies in England must have regard to it when exercising their functions under that section.”

[18]I consider at [27] to [35] below the status of this guidance as a matter of law and the extent to which local authorities are obliged to comply with it, including whether it must be complied with "unless local circumstances indicate exceptional reasons that justify a variation”. For the moment I would observe that this is a question of law and that the guidance cannot confer upon itself a greater legal force than it would otherwise have merely by saying so.

[19]Chapter 4 of the guidance, headed “The Local Policy Requirement”, requires each local authority to “publish a policy setting out its approach towards promoting and supporting the needs of children living with family and friends carers” (see paragraph 4.2). Paragraph 4 .3 provides that:

“Whilst the detail of the policy is a matter for local determination within the length and extent of legislation and statutory guidance, it must address the matters outlined in the rest of this chapter.”

[20]Those matters include a section beginning at paragraph 4.43, headed “Family and friends foster carers”, which state the following principles:

“4.44 … Fostering services must deliver services in a way which ensures that family and friends foster carers are fully supported to care for children placed with them and are not disadvantaged as a result of their prior relationship with the child. This includes access to training to support them in their role. Family and friends foster carers may benefit from some services being delivered in a different way, but there should be equity of provision and entitlement. It is not acceptable to discriminate against foster carers on the basis that they have a pre-existing connection with the child they are fostering. 4.45 Fostering services should ensure that all foster carers are equipped with the knowledge and skills to meet the care needs of children placed with them, and to achieve at least the minimum level of knowledge and skills outlined in the Children’s Workforce Development Councils (CWDCs) Training, Support and Development (TSD) Standards. Given that the TSD Standards are designed to equip foster carers with the knowledge and skills to provide an acceptable level of care to the children they look after, it is in the interests of the children that they should be achieved by all foster carers. In recognition of the fact that the context of family and friends foster care differs from other types of foster care, family and friends foster carers will work towards an amended set of standards and are given additional time to demonstrate achievement of standards. 4.47 Once approved as foster carers, the extent to which family and friends carers wish to be involved in training and formal support varies greatly. An authority should consider how training and support can be delivered to family and friends foster carers in a way which recognises their particular circumstances, needs and perspectives, helps them to understand the relevance and importance of participating in learning and development and makes it as easy as possible for them to engage. There may be benefits to incorporating training into support groups or providing specific training for family and friends’ carers. Evidence of learning and development may be available through the family and parenting support offered to family and friends carers. 4.48 The National Minimum Standards for Fostering Services cover fostering services’ responsibilities with respect to all their foster carers, including those who are family and friends. Fostering services must deliver services in a way which ensures that family and friends foster carers are fully supported to care for children placed with them and are not disadvantaged as a result of their prior relationship with the child. 4.49 Fostering allowances to foster carers must be sufficient to meet the cost to the carer of caring for the child and should be at least the minimum set annually by the Department for Education. The allowances paid by fostering services must be calculated for family and friends foster carers on the same basis as for all other foster carers, and any variation should relate to the child’s needs, the skills of the carer or some other relevant factor that is used as a criterion for all of the services’ foster carers. 4.50 A judicial review of Manchester City Council’s policy on payments of allowances to family and friends foster carers in 2001 (the Manchester City Council judgment) came about because foster carers who were relatives of the children they were caring for were paid significantly less allowance than non-relative carers. The court held that it was unlawful to discriminate against family and friends carers by paying them a lower allowance than non-relative foster carers. There is no requirement to pay a fee to reward the carer’s time, skills, commitment etc in addition to the allowance. Where a fee is paid, it must be payable to those foster carers who meet the criteria set out for the scheme, including foster carers who are family or friends.”

[21]The case referred to in paragraph 4.50 of the guidance is R (L) v. Manchester City Council

[2001] EWHC 707 (Admin)

[2002] 1 FLR 42

, a decision of Munby J which I consider further at [61] to [66] below.

[22]The guidance includes, at Annex B, a summary of research evidence from 2008 and 2009 which referred to some of the difficulties faced by family foster carers, and which concluded that in some respects such carers were significantly more disadvantaged than unrelated foster carers, with 27% of them being lone carers, 31% having a disability or chronic illness, 35% living in overcrowded conditions, and 75% experiencing financial hardship.

[23]Further guidance issued under section 7 of LASSA 1970 is “The Children Act 1989 Guidance and Regulations Volume 4: Fostering Services”, which is described as being “designed to provide a framework for practice in providing a fostering service, which emphasises the importance of safeguarding and promoting the welfare of individual children”. (I shall refer to this as "the Children Act Guidance”). This includes, beginning at paragraph 5.64, a section headed “Supporting foster carers”. Paragraphs 5.71 to 5.73 provide as follows:

“5.71 It is essential that all foster carers are given clear information about the criteria for making financial payments to them, including allowances, fees and other expenses. Allowances must be sufficient to cover the full cost of caring for each child placed with them, and must be reviewed annually. The Government has put in place a National Minimum Fostering Allowance (adjusted annually) which is the very minimum that should be provided to a foster carer for each child placed. Criteria for calculating allowances must apply equally to all foster carers, whether or not they are related to the child or the placement is long or short term (standard 28). 5.72 The Government has published a good practice guide to foster carer payments systems which gives helpful guidance about financial support to foster carers. 5.73 Fees are in addition to allowances and may be paid by fostering services to reflect the expertise and the nature of tasks undertaken by a range of foster carers. Where fees are paid by a fostering service these must be payable to those on their register of foster carers who meet the criteria set out for the scheme, including short and long-term carers and family and friends carers.”

[24]The National Minimum Standards for Fostering Services referred to in the guidance include “Standard 28 – Payments to carers”, which provides as follows:

“28.1 Each foster carer receives at least the national minimum allowance for the child, plus any necessary agreed expenses for the care, education and reasonable leisure interests of the child, including insurance, holidays, birthdays, school trips, religious festivals etc, which cover the full cost of caring for each child placed with her/him. … 28.5 There is a clear and transparent written policy on payments to foster carers that sets out the criteria for calculating payments and distinguishes between the allowance is paid and any fee paid. … 28.7 Criteria for calculating fees and allowances are applied equally to all foster carers, whether the foster carer is related to the child or unrelated, or the placement is short or long term.”

[25]Thus, the guidance draws a distinction between allowances which are used to provide for the needs of the child and to meet expenses incurred by the foster carer on the one hand, and fees which are paid to reward foster carers for their services and which may reflect the expertise and the nature of the tasks undertaken by the foster carers on the other hand.

[26]Standard 30 is also relevant. Entitled "Family and friends as foster carers”, it includes the following provisions:

“30.1 The needs and circumstances of family and friends foster carers are taken into account when determining the fostering service's policies and practices. … 30.10 Financial and other support is provided to all foster carers according to objective criteria that do not discriminate against foster carers that have a pre-existing relationship with the child. Family and friends foster carers may require some services to be delivered in a different way, but there should be equity of provision and entitlement.”

Status of the guidance

[27]The legal status of statutory guidance issued under section 7 of LASSA 1970 has been considered in a number of cases. In R v. Islington Borough Council, ex parte Rixon

(1998) 1 CCLR 119

at [23] Sedley J described it in these terms:

“Clearly guidance is less than direction, and the word 'general' emphasises the non-prescriptive nature of what is envisaged… In my judgment Parliament… did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it. Such a construction would put this kind of statutory guidance on a par with the many forms of non-statutory guidance issued by departments of state. … in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.”

[28]The guidance considered in R (Munjaz) v. Mersey Care NHS Trust

[2005] UKHL 58

[2006] 2 AC 148

was concerned with the seclusion of patients in mental hospitals and was issued under section 118 of the Mental Health Act 1983 rather than under LASSA 1970. Nevertheless, what was said by Lord Bingham and Lord Hope of Craighead applies equally to guidance issued under LASSA 1970. Lord Bingham said at [21]:

“It is in my view plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters relied on by Mr Munjaz show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so. Where, which is not this case, the guidance addresses a matter covered by section 118(2), any departure would call for even stronger reasons. In reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires.”

[29]At [69] Lord Hope of Craighead added:

“The Court of Appeal said in para 76 of its judgment that the Code is something that those to whom it is addressed are expected to follow unless they have good reason for not doing so: see R v Islington London Borough Council, ex p Rixon (1996) 1 CCLR 119, per Sedley J at p 123. Like my noble and learned friend Lord Bingham of Cornhill I would go further. They must give cogent reasons if in any respect they decide not to follow it. These reasons must be spelled out clearly, logically and convincingly. I would emphatically reject any suggestion that they have a discretion to depart from the Code as they see fit. Parliament by enacting section 118(1) has made it clear that it expects that the persons to whom the Code is addressed will follow it, unless they can demonstrate that they have a cogent reason for not doing so. This expectation extends to the Code as a whole, from its statement of the guiding principles to all the detail that it gives with regard to admission and to treatment and care in hospital, except for those parts of it which specify forms of medical treatment requiring consent falling within section 118(2) where the treatment may not be given at all unless the conditions which it sets out are satisfied.”

[30]In that case the majority of the House of Lords held that sufficient reason had been demonstrated for departing from the Code.

[31]More recently, in R (Forest Care Home Ltd) v. Pembroke County Council

[2010] EWHC 3514 (Admin)

(2011) 14 CCLR 103

, after referring to these authorities Hickinbottom J doubted at [29] whether a local authority’s power to depart from statutory guidance was limited to cases where the departure was not “substantial”, although the point was not decisive in that case:

“The learned judge went on to insert a restriction on the authority's ability to deviate from the guidance, namely: "… but without the freedom to take a substantially different course". I hesitate to do anything but agree with that too, because of the eminence of (now) Sedley LJ as an administrative lawyer and the fact that the point is not going to be determinative in this claim: but it seems to me, as a matter of principle, Parliament has given the relevant decision-making power to the local authority and, despite the terms of section 7 of the 1970 Act, it would be open to an authority to depart even substantially from guidance if it had sufficiently compelling grounds for so doing. However, certainly, the more the proposed deviation from guidance, the more compelling must be the grounds for departure from it.”

[32]That approach was followed by Supperstone J in R (Members of the Committee of Care North East Northumberland) v. Northumberland County Council

[2013] EWHC 234 (Admin)

at [34]. I respectfully agree. To impose a rule that a departure from the guidance must not be "substantial" however cogent the reason for that departure is unnecessary and potentially question begging as to how substantial a departure needs to be in order to be prohibited.

[33]Black J’s formulation of the applicable principle in B v. Lewisham Borough Council

[2008] EWHC 738 (Admin)

[2008] 2 FLR 523

was in slightly different terms, referring to a duty "substantially to follow” the guidance unless there was good reason not to do so. She said at [54]:

“Whilst I accept that the guidance does not have statutory force, the local authority had a duty substantially to follow it unless there was good reason to do differently.”

[34]For practical purposes this formulation comes to much the same thing as the other cases referred to, although with the added emphasis that guidance is only guidance and need not be followed inflexibly to the letter in every respect.

[35]In summary, therefore, the guidance does not have the binding effect of secondary legislation and a local authority is free to depart from it, even "substantially". But a departure from the guidance will be unlawful unless there is a cogent reason for it, and the greater the departure, the more compelling must that reason be. Conversely a minor departure from the letter of the guidance while remaining true to its spirit may well be easy to justify or may not even be regarded as a departure at all. The court will scrutinise carefully the reason given by the authority for departing from the guidance. Freedom to depart is not necessarily limited to reasons resulting from “local circumstances” (see [18] above), although if there are particular local circumstances which suggest that some aspect of the guidance ought not to apply, that may constitute a cogent reason for departure. However, except perhaps in the case of a minor departure, it is difficult to envisage circumstances in which mere disagreement with the guidance could amount to a cogent reason for departing from it.

The local authority’s policies

[36]The local authority’s policies challenged in these proceedings are to be found in three documents.

The March 2011 policy

[37]The first, issued in March 2011, is entitled “Finance and payments to foster carers” and applied from April 2011 onwards. A marginal summary provides as follows:

“Each foster carer receives an allowance and agreed expenses, which cover the full cost of caring for each child or young person placed with her or him.”

[38]The policy itself provides as follows:

“1. The authority pays the foster carer allowance for each child placed in her or his care, based on the child’s age and requirements, and in accordance with the full cost of bringing up a foster child within the family. 2. Allowances are reviewed annually. 3. The authority has a written policy on fostering allowances; this and the current allowance levels are well publicised and provided annually to each carer. 4. The foster carer is reimbursed – on provision of appropriate receipts –for additional expenses associated with her or his task against a list of agreed expenses published and provided by the authority. 5. Where expenditure of a significant sum is involved, the facility exists for the carer to claim such expenses in advance. … 11. The foster carer uses all payments of allowances and expenses related to her or his role as a carer for the purpose intended and to ensure that the needs of the child in her or his care are met.”

[39]It would appear, therefore, that the payments described in these paragraphs constitute allowances and expenses to be used for the benefit of the child, as distinct from fees paid to reward foster carers for their services. The policy goes on to say that:

“It also provides additional remuneration for those who achieve the NVQ Level 3 qualification, and so creates a payment structure, which reflects evidenced skills. This was introduced following detailed consultation with foster carers.”

[40]The next section of the policy sets out the weekly rates paid to foster carers. It draws a distinction between “short and long term carers” on the one hand and “family and friends carers” on the other. The former group are also referred to by the local authority as “in-house carers” because they are employed by it, although they are only paid during periods when a child is placed with them and not during periods when they are merely available for a placement. The payments to family foster carers are notably lower than those paid to short and long term carers. The comparison is as follows, using the weekly rates applicable at April 2010, which applied also during the 2011/12 financial year, the difference in each case being £171: Age of child 0-4 5-10 11-15 16-17 Short and long-term carers £300

£315

£334

£362 Family and friends carers £129

£144

£163

£191

[41]In both cases these allowances include the cost of clothing (although with an additional payment of £100 when a new school uniform has to be purchased) and transport of children to school, activities and contact with parents, at any rate when the distances concerned are no greater than seven miles.

[42]The explanation given in the policy for the lower rates paid to family foster carers is as follows (it will be noted that the payments are referred to as “allowances”, not “fees”):

“These are carers who are asked to do a different task to that of other foster carers. These carers are all relatives of children looked after with more than half of them being grandparents. The task and expectations of Family and Friends carers is significantly different to that of other foster carers. The differences include: • Lower standards expected of attendance at training and support groups. • There is no expectation of availability to take placements when vacant. • A less broad set of caring skills is required for these carers. The allowance rates for these carers reflect these differences and are based on the Department of Education National Minimum Fostering Allowances. … An enhancement to the weekly allowance can be considered if a child has special needs, provided it does not exceed the amount which would have been payable if the child were fostered in a [local authority] foster placement. Festive/birthday and holiday payments will not be payable to Family and Friends carers.” • Lower standards expected of attendance at training and support groups. • There is no expectation of availability to take placements when vacant. • A less broad set of caring skills is required for these carers. Festive/birthday and holiday payments will not be payable to Family and Friends carers.”

[43]The festival and birthday allowances (not paid to family carers) are £170 for a child’s birthday and a further £170 annually (usually paid in the first week of December) for religious festivals. An annual holiday allowance of £450 per child is also payable.

[44]The policy goes on to outline the career structure available to foster carers who obtain NVQ qualifications. Obtaining a full NVQ award entitles a foster carer to a one-off payment of £250, plus an additional £30 per week while they have at least one child in placement. In order to earn this additional payment they may be required to support other carers through participation in a mentoring scheme. A recruitment bonus of £400 is payable to a carer who helps the local authority recruit another carer.

The November 2011 policy

[45]The authority’s second policy document is dated November 2011 and sets out a number of “key principles”. These include:

“4. Approved Family and Friend Foster Carers and Foster Carers who are fostering a child for the borough will not be financially assessed in respect of their allowances. 5. An enhancement of the weekly allowance can be considered in exceptional cases where the Council considers this is required by the individual’s circumstances. The total amount of an allowance with enhancement will generally not exceed the amount which would have been payable if the child were fostered.”

[46]This key principle is further developed in the section headed “Family and Friends Foster Carer Allowances”, which includes the following:

“3.4 Family and Friends Foster Carers are not eligible for birthday, festival or holiday grants. 3.5 An enhancement to the weekly allowance can be considered in exceptional circumstances if it is considered that the individual’s circumstances require a higher payment. Whether an enhancement should be paid and, if so, in what amount, would depend upon the overall financial assessment, any essential carer’s costs associated with the special needs and or circumstances, whether there is some other means of meeting those costs and the resources available to the Council. 3.6 Examples of situations in which an enhancement may be considered are as follows: (a) where a child has an exceptionally high level of need involving significant expense which is not otherwise provided for in this guidance or reflected in any other payment or award (including by the Council); (b) where for geographical or other reasons the cost of living is significantly higher than the national average; or (c) where the carer has significant additional responsibilities involving further expense, for example caring for an elderly relative. 3.7 The amount of an enhancement will generally not be such that the financial support exceeds the amount which would have been payable if the child were fostered.”

[47]In fact a child placed with a relative who is an approved foster parent (such as the claimant) is fostered, but I understand the reference in these policies to the amount which would have been payable if the child were fostered to mean the amount which would have been payable by way of fees and allowances to an unrelated foster carer.

[48]The November policy document illustrates that the rates payable by the local authority to family foster carers for 2011/12 exceeded the National Minimum Fostering Allowances set by the Department for Education. Further, and in contrast with the description of the payments in the March 2011 policy document, it refers to the differential between family and unrelated foster carers as a “fostering fee” of £171 per week paid to unrelated foster carers. Although the terminology used in the two documents is conflicting and confusing, in view of the explanation given for the differential it is probably better regarded as a fee, in accordance with the November 2011 document.

The April 2012 policy

[49]Finally, in April 2012, the local authority introduced an additional policy to deal with children with disabilities. This provided:

“1. As from 1st April 2012, in recognition of the higher support needs of Children with Disabilities, an increased weekly payment, up to the maximum the foster carer receives in Disabled Living Allowance for a child, may be payable to the foster carer.”

[50]The criteria for receipt of this additional payment were that the foster carer should be an approved foster carer, the child should be looked after by the local authority, and the child should be in receipt of disabled living allowance. The claimant and all three children placed with her satisfy these criteria.

[51]The policy goes on, however, to divide this “extra weekly allowance” into two parts:

“Allowance amounts 3.1 The maximum extra weekly allowance cannot be above the weekly Disabled Living Allowance for the particular child. 3.2 Fifty per cent of the extra weekly allowance is to be used towards the support needs of the child and this may include a contribution towards respite care payments. 3.3 Fifty per cent over the extra weekly allowance is in the form of a reward/fee element.”

[52]However, family foster carers are not eligible to receive the fifty per cent of the payment which represents a reward or fee:

“Family and Friends Foster Carers 9.1 Family and Friends Foster Carers are eligible for the needs enhancement but not the reward/fee allowance.”

The local authority’s thinking

[53]The thinking behind the differential treatment of family carers on the one hand and unrelated carers on the other is explained, to the extent that it is not already apparent from the March 2011 policy, by the local authority’s Group Manager (Resources) for its Children’s Services Department. His evidence is that:a. The allowances (including where applicable, the "needs enhancement" element of the extra weekly allowance paid in respect of children with disabilities) paid to family foster carers exceed the National Minimum Foster Allowances and are sufficient to ensure that the needs of the children concerned are met. Where in individual cases such allowances are not sufficient for that purpose, the policy contains provision for additional payments to be made, applications for which will be considered on their individual merits. In fact, however, although the policy provides for the possibility of an enhanced allowance to a family foster carer, in practice no such payment has ever been made. This is said to be because such enhanced allowances are “intended to deal with exceptional circumstances not otherwise provided for in the otherwise comprehensive allowance scheme”.

b. This local authority is not alone in making additional reward payments to unrelated foster carers, who do a different job with different expectations and demands from family foster carers. I understand this reference to “additional reward payments” to encompass

(i) the fostering fee of £171 per week referred to at [48] above and

(ii) the reward/fee element of the extra weekly allowance paid in respect of children with disabilities which is explicitly described as such.

c. While a family foster carer is only approved for, and only looks after, a specific child or children, unrelated foster carers have to be in a position to care for a child or several children at any time, frequently at very short notice, and irrespective of any employment or other commitments they may have. They are expected to accept and deal with children with a wide range of presenting behavioural problems, despite the serious management issues which may arise and family disruption that this may cause.

d. Further, unrelated foster carers are only paid when children are actually placed with them, but have to be available to take in children when the need arises. That availability is of critical importance in view of the local authority’s statutory duties to look after children in need. For example, if the authority is suddenly faced at night or over a weekend with a child in a distressed state, perhaps reporting allegations of abuse, which needs to be removed from the parental home, it does not have the option of saying that it has nowhere for the child to go.

e. Reference is also made to the difficulties of recruiting and retaining unrelated foster carers, and to the competition between local authorities for their readily transferable services.

f. Holiday, festive and birthday allowances are not routinely paid to family foster carers because it is the local authority’s experience (which is consistent with the practice of other local authorities in London) that carers of a child remaining within its network of family or friends generally take a more active role, financially and practically, in relation to such occasions than can reasonably be expected from unrelated foster carers.

[54]The differences in the roles undertaken by family and unrelated foster carers are described in the following table produced by the local authority. In some respects the table describes the requirements which the two groups have to meet and in other respects it refers to the typical differences between them. Obviously some children placed with family foster carers may be more demanding than in the typical cases described: Item No Description In-House foster carers F&F foster carers 1 Training Expected to complete 5 training courses a year. Expected to attend 3 courses. 2 Training, support and development standards To be completed within a year of approval. To be completed within 18 months of approval. 3 Support groups Expected to attend at least 3 sessions a year. Encouraged to attend. 4 Changes in placements Varied changes in placements as children regularly come into care and leave. Therefore frequent calls from social workers and duty workers. Carers having to adjust and adapt to different children and meeting their individual needs and preparing their homes and family for the changes. No changes as carer is specifically approved for a particular child/children. 5 Emergency placements Frequently expected to take children at any part of day or night with very little known about them. Unlikely to occur. 6 Moving children on Expected to move children on to adoption/long term fostering/family and friends carers/residential units/secure units which is emotionally challenging for the carers and their family. Unlikely to occur. 7 Placement stability meetings Arranged when placements are fragile and plans are made to salvage or change the placement. Seldom applicable. 8 Children going missing Much higher incidence of children going missing due to nature of problems they come into care with and uncertainty about their care plan. Carers often have constant liaison with EDT, police and social workers. Very low incidence. 9 Court attendance Carers are sometimes expected to give evidence in court on a particular issue. Very rare. 10 School runs Usually more difficult as children’s schools are not changed so carers have to travel a further distance to transport children to school. They often have to do more than one school run if children are at different schools. Usually children move to a school which is nearer the carer. 11 Contact Is generally more regular and often on a daily basis with babies. Tends to be more structured and less frequent. 12 Risks Working with difficult families, facilitating contact in foster carer’s home, managing some very challenging behaviour of children and young people. Families are known so the risks can be better managed. 13 Meetings More meetings to attend, for example introduction planning meetings, professional meetings, contact planning meetings, family finding meetings, family group conferences, life story meetings, goodbye meetings, and placement planning meetings with every placement made. Not applicable. 14 Allegations and complaints Tend to be more vulnerable to allegations and complaints due to the higher number of children taken and less information available with regard to them. Not as vulnerable. 15 Supervision visits Usually carried out monthly but more frequently if additional support is required. Six weekly if placement is stable.

The allowances paid to the claimant

[55]The claimant currently receives from the local authority, not including a range of other benefits and payments, the following weekly fostering allowances: Eldest child £215.80 Middle child £215.80 Youngest child £199.21 Total £630.81

[56]These figures exceed the amounts payable in accordance with the National Minimum Fostering Standards and include the “needs enhancement” element of the additional payment for children with disabilities referred to in the April 2012 policy.

[57]In addition, during the 2011/2012 financial year the local authority made payments for respite care on four occasions at a total cost of £2,134.68 and made various other payments for transport costs, a new tumble dryer, a settling in grant, and various items of equipment, amounting to over £7,500 in all. These payments include the rental of a holiday caravan, from which I infer that even though the local authority's policy is not to make holiday payments to family foster carers as a matter of routine, such payments are sometimes made and at least on this occasion were made in the present case. So far during the 2012/2013 financial year the local authority has made payments for transport to medical and other appointments and for respite totalling £1,652. The claimant also receives a range of state benefits including disability living allowance for each child, housing benefit and income support. The local authority estimates that the total allowances and benefits paid to the claimant for herself and the children exceed £50,000 a year. The claimant has not disputed this estimate.

[58]Nevertheless, the amounts paid to the claimant are substantially less than the amounts which would be paid to her if she were unrelated to the children; she does not as a matter of course receive any allowance for festivals or birthdays; she does not receive any fostering fee, although unrelated foster carers do receive such fees; and she does not receive the “reward/fee” element of the additional payment made to unrelated foster carers of children with disabilities in accordance with the April 2012 policy. All that said, however, the local authority’s policy is to ensure that it does pay sufficient to the claimant (as it does to other family foster carers) to meet the needs of children placed with her. It insists, moreover, that this is not merely its policy, but that it does in fact do so, and that if the claimant does not accept this she has recourse to the local authority’s complaints procedure. For the purpose of the claimant’s challenge in principle to the local authority’s policies, this must be accepted.

The parties’ submissions

[59]The claimant's case is that the local authority's policies are unlawful to the extent that they provide for different payments to be made to the two categories of foster carers. In summary, Ms. Scolding for the claimant contends that:a. Payments made to foster carers must be consistent with the fundamental aim of the legislation, which is to keep looked after children within the family unit whenever possible. The local authority’s policies undermine that aim by creating a financial disincentive for family foster carers when compared with unrelated foster carers. For the same reason, the policies undermine the local authority’s duty to promote the child’s welfare.

b. The policies are also contrary to the statutory guidance, which requires family and unrelated foster carers to be treated equally so far as allowances and fees are concerned.

c. There are no cogent reasons for departing from the statutory guidance. In particular, whatever the position of short term unrelated foster carers may be, there is no relevant distinction between the task undertaken by a family foster carer such as the claimant and a long term unrelated foster carer, or between the financial needs of children placed with such carers, and certainly none which justifies paying substantially more money to unrelated foster carers.

d. Even if such a departure could be justified in some cases, that is not so in the claimant’s case. She wishes to attend the same or equivalent training and develop the same skills as an unrelated foster carer; the children placed with her are as demanding as any; and she will be looking after them until they reach the age of 18 and probably beyond that.

e. The policies are therefore irrational or unlawful applying principles of public law. See R (L) v. Manchester City Council

[2001] EWHC 707 (Admin)

[2002] 1 FLR 42

f. They also constitute discrimination in the enjoyment of the right to family life on the basis of status as a family member, for which there is no objective justification, and which is therefore contrary to

Article 14 of the European Convention on Human Rights

. Here too R (L) v. Manchester City Council is relied on.

g. On either or both of these two grounds, domestic public law and the Convention, the policies should be declared unlawful to the extent that they provide for differential payments.

h. Alternatively the local authority’s refusal to pay the claimant an enhancement to her weekly allowances on the ground of "exceptional circumstances" pursuant to paragraphs 3.5 and 3.6 of the November 2011 policy demonstrates, particularly in the light of the fact that no such enhancement has ever been paid to anyone, that the local authority has unreasonably fettered its discretion to make such a payment or has set the bar for qualifying for an enhancement unreasonably high.

[60]In response Mr Kelvin Rutledge for the local authority contends that:a. The statutory scheme leaves it to local authorities to determine the terms, including payment terms, on which they will provide fostering services for looked after children, as is underlined by the fact that the Secretary of State could have made this the subject of secondary legislation, but has chosen not to do so.

b. The statutory guidance permits local authorities to pay different rates to different types of foster carer.

c. What matters is that the allowances paid by the local authority exceed significantly, the National Minimum Fostering Allowances fixed by the Department for Education, are sufficient to meet the needs of the children placed with the claimant, and are sufficiently flexible to enable it to meet additional need where that is identified.

d. Alternatively, if the local authority’s policies providing for higher payments to be made to unrelated foster carers are contrary to the statutory guidance, there are cogent reasons for departing from the guidance.

e. The policies do not infringe the claimant's rights under

Article 14 of the European Convention

f. There are good reasons why no enhanced weekly allowance was paid to the claimant on the ground of "exceptional circumstances" pursuant to paragraphs 3.5 and 3.6 of the November 2011 policy, but in any event any complaint on that ground is better dealt with through the statutory complaints procedure than by an application for judicial review.

The Manchester case

[61]It is convenient to begin by examining the decision of Munby J in R (L) v. Manchester City Council. That was a successful challenge to the policy of Manchester City Council, whose policy was to pay all short-term foster carers allowances which were significantly below those recommended by the National Foster Carers’ Association, with short-term family foster carers being paid even less (less than one fifth of the rate paid to unrelated foster carers, which itself was below the recommended rate: see [24] of the judgment).

[62]The policy was held to be unlawful on several grounds, not all of which are relevant here. One of these was that it had been made by council officers without proper delegated authority and would therefore have been quashed on that procedural ground alone (see [67]). Nevertheless, Munby J went on to consider the policy on its merits. Having done so, he held that it was unlawful on four grounds, identified at [78]. The first two of these, namely that the policy imposed an arbitrary and inflexible cash limit on the amounts that could be paid to family foster carers, and that the level of payments to such carers was fixed so low as to make a conflict with the welfare principle inevitable, do not arise in this case. On the contrary, in the present case, there is flexibility and the policy does ensure that the needs of the children are met. The third ground of illegality included the different treatment of family and unrelated carers, but also depended on a combination of several other features, including the very low rates, the failure in the case of family foster carers to provide uplifts in the rates paid for older children and the fact that the policy was designed to encourage (or at least not to discourage) relatives from applying for a residence order. Those additional features are not present here. The fourth ground of illegality was this:

“Finally, it is apparent that the policy, in effect if not in intention, is fundamentally discriminatory, discriminating against both those short-term foster carers who are relatives and those children in care who are fostered short term by relatives rather than by non-relatives.”

[63]Munby J stated his conclusion so far as domestic law was concerned at [80]:

“I conclude therefore that, even without reference to the Convention, Mr McCarthy [counsel for L] has made good his case: Manchester’s policy is unlawful, not merely because of the essentially procedural defect, which is conceded by Mr Ryder [counsel for Manchester], but also and in any event on the wider substantive grounds relied on by the claimants.”

[64]It appears, therefore, that Munby J regarded the discriminatory treatment of family foster carers as an independent ground for holding the Manchester policy unlawful as a matter of public law. In doing so he rejected Manchester's attempts to justify this different treatment by reference to (among other things) the difficulty of recruiting and retaining unrelated foster carers and the need to pay them competitive rates, a difficulty which was said not to be relevant in the case of family foster carers (see [52]), and also its limited financial resources (see [54] and [81] to [82]), although he accepted that limited financial resources was at least to some extent a relevant consideration (see [84]). However, the fact that Munby J was not impressed by these arguments must be seen in the context of the very low allowances being paid in that case and does not necessarily mean that they will never be of any force.

[65]Since 2001 when R (L) v. Manchester City Council was decided, the applicable legislative and policy framework has changed. In particular, the statutory preference for placing children with family foster carers where possible which is contained in section 22C of the Children Act 1989 and the statutory guidance referred to at [15] to [26] above are both new. Indeed paragraph 4.50 of the guidance contained in the Family Care Guidance itself refers to the Manchester case as prohibiting discrimination against family foster carers by paying them a lower allowance than that paid to unrelated foster carers (see [20] above). Ms Scolding submits that these new provisions reinforce Munby J’s conclusion that discrimination against family foster carers is unlawful. I agree with that submission so far as it goes, although it remains necessary to test the lawfulness of the local authority's policies against the current legal framework. It is also necessary to keep in mind that the Manchester case was concerned with differential allowances, not fees, and that the question whether it was unlawful to pay fees to unrelated foster carers but not to family foster carers did not arise.

[66]Having dealt with the issues arising as a matter domestic law, Munby J went on to consider the European Convention on Human Rights, holding at [97] and [98] that the council’s policy infringed both Article 8 (right to respect for family life) and Article 14 (unlawful discrimination). So far as Article 8 is concerned, however, in relation to cases involving priorities in the allocation of limited state resources the law has moved on since 2001 as a result of decisions in Strasbourg and here (R (McDonald) v. Royal Borough of Kensington & Chelsea

[2011] UKSC 33

[2011] 4 All ER 881

at [15] to [19] and the Strasbourg cases there cited). This is so to such an extent that Ms Scolding accepts that in the present case the local authority’s policies do not infringe Article 8. The claimant's case under the Convention is limited to Article 14. Irrationality/ failure to comply with the statutory guidance The issues

Irrationality/ failure to comply with the statutory guidance

[67]In the light of the matters set out above, the following issues arise in relation to the claim under domestic public law:a. What are the constraints on the local authority in determining its policies on payment of allowances and fees?

b. Do the local authority's policies comply with the statutory guidance? In particular: i) do they discriminate against family foster carers? ii) if so, is the different treatment for a reason permitted by the guidance?

c. If the policies do not comply, are there cogent reasons for departing from the guidance?

d. Even if a departure from the guidance may be justified in some cases, how does that affect the claimant?

The constraints on the local authority

[68]I accept that the statutory scheme leaves it to local authorities to determine the terms, including the terms relating to payment of allowances and fees, on which they will provide fostering services. I accept also that the Secretary of State could have made this the subject of binding secondary legislation, and that the fact that he has chosen not to do so supports the suggestion that local authorities are intended to have a wide discretion in the matter. Nevertheless, their freedom to determine their own policies is not unconstrained. For present purposes there are two relevant constraints.

[69]First, the legislation shows a clear intention by Parliament that children who cannot continue to live with their parents should if possible be placed with family members who are able and willing to qualify as local authority foster carers in preference to unrelated carers. It follows from this that a local authority policy which would frustrate this intention is likely to be unlawful.

[70]However, I do not accept that the local authority’s policy of paying lower payments to family foster carers does have this effect. No doubt it would or might in a case such as the Manchester case, where the allowances paid were so low that they infringed the fundamental welfare principle. But in a case like the present, where the allowances paid exceed the national minimum allowances and can be (and are) supplemented where necessary by payment of additional expenses, so that they are sufficient to meet the needs of the child or children, the position is very different. I accept that the claimant feels herself to be unfairly treated, but it is not suggested that she will be unable or unwilling to continue to care for the children. Nor is there any evidence before me to suggest that the mere fact of the payment of higher payments to unrelated foster carers in circumstances where the lower payments made to family foster carers are nevertheless sufficient to meet the needs of the child has deterred, or is likely to deter, potential family foster carers from coming forward. As already noted at [9] above, Ms Scolding accepts that the policies would be lawful if the local authority simply reduced the payments made to unrelated foster carers. That might perhaps end any feeling of unfairness, but would not leave the claimant or other family foster carers any better off.

[71]The second constraint is the requirement already considered at [27] to [35] above to comply with the statutory guidance unless there are cogent reasons for not doing so.

Do the local authority's policies comply with the statutory guidance?

[72]There is no doubt that in the respects summarised at [58] above the claimant, because she is the children's aunt, receives less than she would receive if she were an unrelated foster carer for these same children. In my judgment, and leaving aside for the moment the express permission for variations in allowances (but not fees) contained in paragraph 4.49 of the Family Care Guidance (set out at [20] above), this is clearly contrary to the guidance as a whole.

[73]While the guidance might reasonably have chosen to concentrate only on the welfare principle and to limit a local authority's responsibility to the making of sufficient payments to ensure that the needs of children will be met, I accept Ms Scolding’s submission that for present purposes the guidance reflects two principles. One such principle is the welfare principle, but the second is that there should be equality of treatment as between family and unrelated foster carers. The guidance directs local authorities to comply with both of these principles. Moreover, the second principle of equal treatment applies notwithstanding recognition of the existence of differences between the two kinds of carers. That is not the only approach which could reasonably have been taken, but it is the approach which the guidance takes.

[74]Thus paragraph 4.44 requires that family foster carers “are fully supported to care for children placed with them and are not disadvantaged as a result of their prior relationship”, that “there should be equity of provision and entitlement”, and that “it is not acceptable to discriminate against foster carers on the basis that they have a pre-existing connection with the child”. Paragraph 4.48 contains the same principles.

[75]Similarly paragraph 4.49 dealing with allowances includes the same two principles. First, allowances “must be sufficient to meet the cost to the carer of caring for the child and should be at least the minimum set annually by the Department for Education”. Second, and subject to the express provision for variation in certain cases, they must be calculated for family foster carers “on the same basis as for all other foster carers”. This is underlined in paragraph 4.50 by reference to the Manchester case which was clearly understood by the authors of the guidance as standing for a general principle that it is unlawful to discriminate against family foster carers by paying them a lower allowance than that paid to unrelated foster carers.

[76]The same principles are also contained in the Children Act Guidance set out at [23] above and in National Minimum Standards 28.7 and 30.10 set out at [24] and [26] above.

[77]The principle of equal treatment applies also to fees as well as to allowances. Fees need not be paid to foster carers, but if they are paid, they must be payable to foster carers who meet the applicable criteria regardless of whether they are related to the children (see the final two sentences of paragraph 4.50 of the Family Care Guidance, paragraph 5.73 of the Children Act Guidance, and National Minimum Standards 28.7 and 30.10).

[78]The guidance recognises the existence of differences between family and unrelated foster carers, which may mean that care is delivered in a different way. This appears from paragraph 4.44 ("Family and friends foster carers may benefit from some services being delivered in a different way, but there should be equity of provision and entitlement") and is developed in paragraph 4.45 which provides that "in recognition of the fact that the context of family and friends foster care differs from other types of foster care” adjustments may be made to training and development requirements. Nevertheless, the guidance insists on the principle of equal treatment so far as fees and allowances are concerned.

[79]In relation to fees, the local authority’s test for whether a fee is paid (by which I refer to both the fostering fee of £171 per week referred to in the November 2011 policy and the reward/fee element of the extra weekly allowance paid for children with disabilities referred to in the April 2012 policy) depends explicitly on whether the carer is a family foster carer. This is directly contrary to the guidance.

[80]If the differential in the weekly payments made by the local authority is rightly regarded as a fee rather than an allowance, as I consider that it is, the question of differential allowances does not arise. If it is better regarded as an allowance (as the parties’ submissions tended to assume), that too is contrary to the guidance unless the differential is permitted by the final sentence of paragraph 4.49:

“The allowances paid by fostering services must be calculated for family and friends foster carers on the same basis as for all other foster carers, and any variation should relate to the child’s needs, the skills of the carer or some other relevant factor that is used as a criterion for all of the services’ foster carers.”

[81]It is convenient to consider here the explanation for the differential payments given in the March 2011 policy itself (see [42] above). That will be relevant to paragraph 4.49 if this differential is to be regarded as an allowance, but will also need to be considered in the context of the next issue, whether there is a sufficient reason for any departure from the guidance.

[82]The explanation is that the task of family foster carers and the expectations on them are different from those applicable to unrelated foster carers. I accept that in some respects the job typically done by family foster carers is different from that typically done by unrelated foster carers and that the requirements which are or may be imposed on the two groups can be different. At a general level, of course, the task is the same, namely to provide the best possible home for the foster child or children in order to promote their welfare. But the way in which that task is accomplished will often be different. The principal differences are set out in the table reproduced at [54] above. Most notably, while family foster carers will be specifically approved for a particular child or children, unrelated foster carers may care for a series of children with all the physical and emotional adjustments which that may cause, and they may need to be available between placements to take in an unknown child with little or no notice. This is not to say that the role of family foster carers is less challenging, but simply that the two roles are generally different, although the differences are likely to be less pronounced if the comparison is made with unrelated long term rather than short term carers. Moreover the requirements which unrelated foster carers must satisfy so far as training and compliance with standards are concerned are to some extent more demanding than those applicable to family foster carers, even if some family foster carers (among whom the claimant may be one) seek by choice to comply with the higher standards.

[83]Nevertheless, there is nothing in this table which is not inherent in the nature of the tasks undertaken by the two groups of foster carers or which would not have been apparent to the authors of the guidance. To justify payment of differential allowances on the basis that the task of family foster carers and the expectations on them are different from those applicable to unrelated foster carers is therefore contrary to the principle of equal treatment on which the guidance insists in full knowledge of the differences inherent in the respective roles of the two groups concerned.

[84]Moreover, that justification has little or nothing to do with either “the child’s needs” or “the skills of the carer”. I would add that I have difficulty in understanding why "the skills of the carer" should in itself justify an increase in an allowance, the purpose of which is to meet the needs of the child, except in cases where particular skills enable a carer to undertake particularly demanding or expensive tasks. Nor can the differential be justified as relating to “some other relevant factor”. Any attempt to do so would be contradictory. It would amount to saying that although the basic principle is that equal allowances should be paid to family and to unrelated foster carers, that principle can be departed from because family and unrelated foster carers perform different tasks. The exception, in short, would leave nothing of the basic rule. In any event, the variation must be justified, not merely as being based on “some other relevant factor”, but on “some other relevant factor that is used as a criterion for all of the services’ foster carers”. By definition, this does not include a criterion which applies only to unrelated foster carers.

[85]I conclude, therefore, that the local authority’s policies on fees (and if necessary allowances) are not in accordance with the statutory guidance to the extent that they provide for different treatment of family and unrelated foster carers. Moreover, I do not consider that the departure from the guidance can be characterised as so minor that there is substantial compliance.

[86]Payments for birthdays and festivals are in a different category. These are not dealt with expressly in the Family Care Guidance or the Children Act Guidance, but are referred to in National Minimum Standard 28.1 (set out at [24] above), which provides that in addition to the national minimum allowance foster carers should receive “any necessary agreed expenses” for (among other things) birthdays and religious festivals. There is nothing here to say in terms that the same payments must be made for family foster carers as for unrelated foster carers. Rather, there is a more flexible standard in that it depends upon the reasonable judgment of the local authority concerned as to whether such payments are “necessary”. That does not mean that it is open to a local authority to determine that such payments will never be made, but it would be in accordance with the standard to adopt a policy that such payments will not automatically be made to family foster carers, but that an assessment will be made case by case whether such payments are “necessary”, having regard to the individual family circumstances.

[87]That is, as I understand it, the policy in fact adopted by the local authority. Although the March 2011 policy states in apparently stark terms that such payments “will not be payable" to family foster carers, the local authority’s evidence is that such payments are not "routinely" made as they are not generally necessary (see [53(f)] above), but that applications can be made and will be considered on a case by case basis. In my judgment that policy is not contrary to the guidance and is within the reasonable discretion conferred upon the local authority.

Are there cogent reasons for departing from the guidance in relation to fees and allowances?

[88]The local authority submits that if (contrary to its case, but as I have held) its policies on payment of fees and allowances are contrary to the statutory guidance, there are nevertheless cogent reasons for those policies. In summary, it says that(1) a local authority has a wide discretion in these matters, and the court should not interfere;

(2) family and unrelated foster carers do a different job;

(3) what matters is that the payments which it makes to family foster carers are sufficient to provide for the needs of the children in their care, with additional flexibility in exceptional cases where this is not so;

(4) that it needs to be able to provide rewards and incentives to unrelated foster carers in order to ensure that it is able to recruit and retain them, and thereby to fulfil its statutory obligations, but that this does not apply in the case of family foster carers; and

(5) that the consequences of declaring its policies to be unlawful “would have a significant and potentially catastrophic impact on [the local authority’s] ability to deliver services”.

[89]If it were not for the guidance, there would be much force in all of these points. I doubt whether it could be said that it is irrational to have a policy of providing rewards and incentives to unrelated foster carers for whom fostering is essentially their livelihood and who provide a valuable and necessary service. Further, an authority could reasonably take the view, if its experience justified it in doing so, that it was unnecessary to provide such incentives in the case of family foster carers in the light of their pre-existing relationship with the child or children concerned, always provided that the allowances paid are sufficient to provide for the child's needs. If that is so, to require such incentives to be provided (ex hypothesi unnecessarily) to family foster carers, particularly in times of severe financial pressure on local authorities, would itself seem unreasonable.

[90]But the difficulty for the local authority is that its arguments cannot be considered in isolation from the statutory guidance, which sets the framework against which any departures from it must be assessed. Thus, as I have held, the local authority is constrained by the guidance in determining its fostering policies, and a departure which is essentially no more than the result of a disagreement with the approach of the guidance is unlikely to provide a cogent reason for departing from it. In essence, that is what the local authority’s arguments amount to. As already discussed in the context of the issue whether the policies do comply with the guidance, the guidance insists on the principle of equal treatment so far as fees and allowances are concerned in addition to the welfare principle, and does so despite recognising the existence of the difference between family and unrelated foster carers. The local authority takes a different view. Thus the first three of the local authority’s arguments fight essentially the same battle as has already been fought and lost in the previous section of this judgment.

[91]As for the need to recruit and retain foster carers and the serious consequences of its policies being held to be unlawful, the evidence of the local authority (which is one of the most deprived London boroughs) is that in that event it would have three courses open to it, namely(1) to increase the payments made to family foster carers to the same level as paid to unrelated foster carers, which it cannot afford to do without cutting other services,

(2) to reduce the payments made to unrelated foster carers, or

(3) some combination of these two. Either of these latter two courses, it says, would “have a significant impact on its ability to recruit and retain in-house carers, especially those living in or close to the borough who could transfer their services to other care providers”.

[92]This is evidence which has to be given weight. Nevertheless, it is not ultimately persuasive, because it takes too narrow a view of what the local authority may have to do. For example, there is no reason why the local authority should not design a fee structure based on qualifications, whether formal qualifications by developing its existing incentive payment scheme based on NVQ qualifications or less formal such as by rewarding attendance at suitable training events. A family foster carer who met the relevant criteria would be entitled to receive whatever fees were payable for doing so, but it would seem probable that unrelated foster carers who treat fostering as their livelihood would in general be much more likely to have or obtain such qualifications than family foster carers. What matters, in essence, is that the criteria for payment of fees must not simply be (as at present) that the recipient is unrelated to the child in her or his care. But so long as the criteria are genuine and reasonably related to the task of fostering children looked after by the local authority, and so long as family foster carers are not excluded from seeking to meet them, there is no reason why they should not be criteria which unrelated foster carers are much more likely to satisfy.

[93]Further, the position at present is that unrelated foster carers are not paid for the time when they do not have a child placed with them, but are nevertheless available to take a child at short notice. The evidence includes examples of what are described as “three typical in-house carers in [the borough] in the latter part of 2012”. In all three cases these carers took in a number of abused or neglected (and sometimes abusive, self-harming or suicidal) children for short periods, but actually had the children with them (and therefore received fees) for on average less than half of the time. There would be no objection in principle to a scheme which rewarded their availability during periods when no child was placed, even though in the nature of things family foster carers would be unlikely to qualify for such payments or to wish to do so.

[94]I am far from saying that the local authority must introduce a scheme along the lines described in the previous two paragraphs (and, if it did, that might not be of much use to the claimant). That is a matter for it to consider. But I do conclude that in circumstances where there is no evidence that such possibilities (and perhaps others) have been considered, the local authority has not discharged the burden upon it of showing sufficiently cogent reasons for departing from the principle of equal treatment of family and unrelated foster carers in the payment of fees (and to the extent relevant, allowances) required by the statutory guidance. If I were satisfied that all reasonable possibilities had been considered and rejected for good reason, so that the local authority’s ability to perform its statutory duties would indeed be seriously affected by a declaration of illegality, I would necessarily conclude that there were sufficiently cogent reasons for departing from the guidance. Indeed that conclusion would suggest that the guidance itself was fundamentally flawed. But that is not the position on the evidence before me. It follows that the local authority’s policies are unlawful. I reach this conclusion with some regret, as I do not doubt the good faith of the local authority or the real and serious efforts which it makes to ensure, in very difficult circumstances and with limited resources, the best possible outcome for all the children who are or may in future be in its care.

[95]I should mention one other possibility because Ms Scolding accepts that, so long as any allowances are sufficient to meet the needs of the children concerned, it would be lawful for the local authority to draw a distinction in the payment of fees and allowances between short term and long term foster carers. She suggests that many of the problems identified by the local authority would not arise if higher payments were made to short term carers, even though (she says) the majority of family foster carers (and certainly the claimant) would fall into the long term category. That may be so, but I leave that for consideration in another case if it arises. On its face, to draw a distinction explicitly on that basis would appear to contradict paragraphs 5.71 and 5.73 of the Children Act Guidance and National Minimum Standard 28.7, set out at [23] and [24] above, and would therefore raise similar issues about whether there are sufficiently cogent reasons to depart from that guidance.

The claimant’s individual circumstances

[96]The conclusion reached at [94] above means that it is unnecessary to consider Ms Scolding’s further submission (see [59(d)] above) that any departure from the guidance cannot be justified in the particular circumstances of the claimant’s case. However, I would not have accepted that submission. If sufficiently cogent reasons existed for the payment of fees to unrelated foster carers but not to family foster carers generally, as a result of taking into account the typical differences in the respective positions of the two groups, that would be a lawful policy despite the existence of some family foster carers who did not conform to type.

Article 14 of the Convention

[97]In view of the conclusion which I have reached as a matter of domestic public law, I can deal with the arguments under Article 14 relatively briefly. Article 14 provides:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

[98]Adopting the analysis illustrated in Burnip v. Birmingham City Council

[2012] EWCA Civ 629

, four question arise:(1) Is family relationship within the concluding words ”or other status”?

(2) Is the right to receive a fostering fee within the ambit of the rights protected by Article 8?

(3) Is there discrimination on the grounds of family relationship?

(4) Is such discrimination justified?

[99]As to the first question, Munby J held in the Manchester case at [91] that “the reference in article 14 to ‘other status’ includes family status”. I respectfully agree. The reasoning in Francis v. Secretary of State for Work and Pensions

[2005] EWCA Civ 1303

at [20] to [28] gives some support to this view.

[100]Passing over the second question for the moment, I consider that there was such discrimination: fees are payable to unrelated foster carers, but not to family foster carers however well qualified they may be and regardless of their financial circumstances.

[101]There was some debate before me as to the applicable test for justification. Mr Rutledge submits that in the circumstances of this case it is the test applied at [27] of Burnip, that in a case involving a positive obligation to allocate public resources the public authority concerned should have a wide measure of discretion and its decisions should be accepted unless they are “manifestly without reasonable foundation”:

“As the Grand Chamber explained in Stec at paragraph 51, a difference of treatment lacks objective and reasonable justification “if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised”

. With regard to the margin of appreciation enjoyed by a Contracting State, the Court went on to say at paragraph 52: ‘The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’.”

[102]Building on this test, which is also discussed in Humphreys v. Revenue & Customs Commissioners

[2012] UKSC 18

[2012] 1 WLR 1545

at [15] to [22], where it was described as “less stringent than the ‘weighty reasons’ normally required to justify sex discrimination”, Mr Rutledge relies on essentially the same matters as relied on in the domestic law context (see [88] above), and submits that the local authority’s policy is not manifestly without reasonable foundation.

[103]Ms Scolding, however, contends for a test of “rational justification”, as in [29] of Francis:

“Miss Lieven accepted that the ground of Article 14 relied on in this case by Ms Francis did not call for severe scrutiny but only rational justification. Has the Secretary of State established that the discrimination against those with parental responsibility for a child by reason of a residence order is objectively justified?”

[104]Francis, however, was decided before Stec and I accept, in the light of Burnip and Humphreys, that the applicable test in a case such as this is as contended for by Mr Rutledge. Even adopting the Burnip test, I would hold that there is no sufficient justification in this case. That is because any margin of appreciation given to national public authorities (including the local authority in this case) in determining general measures of economic or social strategy in the allocation of public resources must take account of any relevant statutory guidance. That guidance represents (to adopt the expression used in Stec) a statement of “what is in the public interest on social or economic grounds”. Thus the question is not whether the local authority’s policy is manifestly without reasonable foundation in the abstract. Rather, the question of justification under Article 14 is essentially the same question as arises under domestic law of whether there are sufficiently cogent reasons for a departure from the guidance to be justified. If sufficiently cogent reasons cannot be shown for a departure from a prohibition on discrimination in the statutory guidance, the same discrimination is unlikely to be justified under the Convention. In this regard, I note that in the Manchester case Munby J at [98] considered that it would be harder to justify discrimination under

Article 14 of the Convention

than it would be as a matter of domestic law. The existence of the guidance (which is new since 2001) certainly cannot make that justification any easier.

[105]The second question, however, which I have so far passed over, is whether the right to receive a fostering fee falls “within the ambit” of

Article 8 of the Convention

. In order for Article 14 to apply, a separate Convention right need not be infringed, but the discrimination complained of must interfere with a right or interest which falls within the ambit of a right protected by the Convention, in this case the right to respect for family life under Article 8. In this case, as shown above, what is actually in issue is a fee (that is to say, a reward for services), as distinct from an allowance which is paid in order to meet the needs of the child being fostered. The question arises, moreover, on the premise that the allowances and other payments actually made are sufficient to meet those needs. The question is therefore materially different from the questions relating to allowances, maternity grant or housing benefit, all of which were directly concerned with need, which arose in the Manchester, Francis and Burnip cases respectively. Those were cases where, without the payment in question, family life would clearly have been jeopardised. That is not obviously or necessarily so where what is in issue is the payment of a fee by way of reward for services in addition to allowances which are sufficient to meet the cost of caring for the child. I am inclined to consider that the right to a fee as distinct from an allowance does not fall within the ambit of Article 8, but as the parties’ submissions on this issue did not focus on the precise nature of the payment in question and as it is unnecessary to do so in view of my decision as a matter of domestic law, I prefer to express no concluded view.

Fettering of discretion/alternative remedy

[106]The third and final ground of challenge to the local authority’s policies is that it has unlawfully fettered its discretion in the application of its policy on payment of enhanced allowances to family foster carers in “exceptional circumstances”. The relevant policy is contained in the fifth “key principle” and in paragraphs 3.5 and 3.6 of the November 2011 policy set out at [45] and [46] above. The claimant’s argument is, in summary, that she appears to qualify for such an enhancement but that the refusal to pay one in her case, combined with the fact that on the local authority’s own evidence no such enhancement has ever been paid to any family foster carer, demonstrates that the local authority has unreasonably fettered its discretion to make such a payment or has set the bar for qualifying for an enhancement unreasonably high.

[107]Paragraph 3.6 gives three examples of situations in which an enhancement may be considered. The claimant appears to have at least an argument that she qualifies (or did until her mother died recently) in all three cases. Thus the children looked after by her have an exceptionally high level of need involving significant expense; her own inability to drive combined with the fact that the children cannot use public transport increases significantly her cost of living; and until her mother’s death she incurred significant expense in daily travelling to care for her as there was nobody else from whom her mother would take food.

[108]However, although at first sight the claimant appears to have a strong case for payment of an enhanced allowance under this policy, and can make the forceful point that if no enhanced payments have ever been paid to anyone that may suggest that the policy is something of an illusion, ultimately the strength of her case must depend upon a detailed assessment of her overall financial position, to which judicial review is not well suited. For example, the indication in the policy that an enhancement may be considered in a case where a child has an exceptionally high level of need goes on to make clear that the needs referred to are those which involve “significant expense which is not otherwise provided for in this guidance or reflected in any other payment or award (including by the Council)”. The detailed evidence required for such an assessment is not currently before the court.

[109]It is the local authority’s case that the totality of payments made to the claimant (as to which see [55] to [58] above) including state benefits and the services of the National Health Service are sufficient to meet her needs and the needs of the children placed with her, that if the claimant does not accept this her appropriate recourse is to the local authority’s complaints procedure rather than judicial review, and that paragraphs 3.5 and 3.6 of the November 2011 policy are intended as a safety net for the truly exceptional case where the combined package of local authority payments and state benefits leaves a family foster carer unable to cope.

[110]It is not disputed that a complaints procedure is available to the claimant. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 govern a person’s right to complain about the services they receive from a local authority. Regulation 5 provides:

“… a complaint may be made by (a)a person who receives or has received services from a responsible body; or(b)a person who is affected, or likely to be affected, by the action, omission or decision of the responsible body which is the subject of the complaint.”

[111]“Responsible body” includes a local authority. Regulation 6 is concerned with the duty to handle complaints. It provides materially as follows:

“(1) This regulation applies to a complaint made on or after 1st April 2009 in accordance with these Regulations to (a)a local authority about the exercise by the local authority of the following functions (i) its social services functions … (4) Where this regulation applies to a complaint, the responsible body to which the complaint is made must handle the complaint in accordance with these Regulations.”

[112]Speaking of the 2009 Regulations, McCombe J in R (F) v Wirral Borough Council

[2009] EWHC 1626 (Admin)

said this:

“If there was real complaint about any individual assessment or care plan or any true deficiency in the provision of community care the complaints procedure was the forum to which it should have been brought. If it was so brought but was inadequately dealt with at stage 1, then the other stages should have been invoked ...”

[113]I accept Mr Rutledge’s submission that the claimant’s appropriate remedy in this case is by reference to the complaints procedure rather than judicial review. In the first place she should (to the extent that she has not already done so) raise any concerns at the LAC and/or annual foster carers’ reviews. If the local authority’s own procedures do not satisfy her, she should invoke the statutory complaints procedure.

Delay

[114]It is the local authority’s case that there has been delay in the commencement of these proceedings and that applications to amend the claim as the proceedings have progressed were not made promptly. The grant of permission was made on terms that this point would remain open to the local authority, but ultimately and realistically Mr Rutledge accepted that it would only be relevant to the question of remedy, and that if I were to determine that the local authority’s policies are unlawful, such delay as there may have been should not deter me from saying so. Since a declaration is the only remedy which I consider to be necessary or appropriate, I need not consider further the question of delay.

Conclusion

[115]For the reasons which I have given there will be a declaration that the local authority’s fostering policies are unlawful to the extent that they discriminate on the grounds of pre-existing relationship with the child between family and unrelated foster carers in the payment of(a) the fostering fee (currently £171 per week) provided for in the March and November 2011 policies and

(b) the “reward/fee” element of the payments made to carers of children with disabilities provided for in the April 2012 policy. I reach this conclusion as a matter of domestic public law and need not determine whether the same result would be reached under

Article 14 of the European Convention on Human Rights

[116]The local authority will therefore need to reconsider its policies in these respects. It was agreed that it would need a reasonable time in which to do so and that (if the existing policies were held to be unlawful) there should be liberty to apply in the event that a new policy has not been issued within three months.

[117]The claimant’s challenge to the local authority’s failure to pay her an enhanced allowance pursuant to paragraphs 3.5 and 3.6 of its November 2011 policy is dismissed as she has an alternative and more suitable remedy available to her.

Anonymity

[118]Bean J made an order on 4 February 2011 that the children concerned in this case should not be referred to by name in any report. Because it would be easy to identify them if there were to be publication of the claimant’s name, I extended Bean J’s order to prohibit publication of these details or other information calculated to lead to their identification. Pending delivery of this judgment, and at the request of both parties, I prohibited also identification of the London borough from which the children came. However, there is a legitimate public interest in knowing the name of the borough concerned and, as it will now have to reconsider its policies as a result of my judgment and may need to provide some explanation of why it is doing so, there can be no objection to its identification. But the prohibition on identifying the children or the claimant stands.

X, R (on the application of) v London Borough of Tower Hamlets [2013] EWHC 480 (Admin)

Introduction

The legislation

The statutory guidance

Status of the guidance

The local authority’s policies

The March 2011 policy

The November 2011 policy

The April 2012 policy

The local authority’s thinking

The allowances paid to the claimant

The parties’ submissions

The Manchester case

Irrationality/ failure to comply with the statutory guidance

The constraints on the local authority

Do the local authority's policies comply with the statutory guidance?

Are there cogent reasons for departing from the guidance in relation to fees and allowances?

The claimant’s individual circumstances

Article 14 of the Convention

Fettering of discretion/alternative remedy

Delay

Conclusion

Anonymity

Cited in 7 later judgments