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(Family Division; Black J; 17 April 2008)
A local authority scheme for providing financial support to special guardians, linked to the payments made to adopters was unlawful. The Special Guardianship Guidance produced by the DFES provided that 'In determining the amount of any ongoing financial support, the local authority should have regard to the amount of fostering allowance which would have been payable if the child were fostered.' The scheme devised by the local authority was so divorced from their fostering allowance rates, which were much higher than their payments to adopters, as to suggest that whatever regard had been given to the fostering allowances it had been allowed to have absolutely no impact on the calculations that followed, except as a ceiling to the special guardianship payments. While the Guidance did not have statutory force, the local authority had a duty substantially to follow it. The intention of the special guardianship legislation had been to make financial support available to special guardians to ensure that financial obstacles did not prevent people from taking on the role. A local authority was not free to devise a scheme that failed to do that, or that dictated that some types of placement for a child carried a significant financial disadvantage in comparison with others, or, worse, would impose such a financial strain on the carer that they would be forced to choose another type of placement.
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