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02 MAY 2013

R (on the application of X) v London Borough of Tower Hamlets [2013] EWHC 480 (Admin); (2013) PLLR 044

Children - local authority - foster care - payment of allowances - section 22C Children Act 1989 - section 49 Children Act 2004 - section 7 Local Authorities Social Services Act 1970 - statutory guidance - departure - cogent reason - discrimination - Article 8 European Convention on Human Rights - Article 14 European Convention on Human Rights

A local authority's policy of paying lower fees to family foster carers than to unrelated foster carers was unlawful as it departed from statutory guidance without cogent reasons for doing so.

8 March 2013

Administrative Court

Males J

(1)        The claimant (X) was the aunt and foster carer of three children with severe learning difficulties and behavioural difficulties. The defendant (TH) had asked her to become foster carer to the children, which had required her to move away from London, leave her job and become dependant on state benefits. TH operated a policy whereby family foster carers received less financial support than non-related foster carers.

(2)        X challenged this policy on the basis that (a) it was unlawful as it departed from statutory guidance; (b) that it constituted unlawful discrimination contrary to Article 14 of the European Convention and Human Rights; and (c) TH had fettered its discretion in applying its policy of payments in ‘exceptional circumstances', no payments ever having been made.

(3)        Males J held (i) that guidance made under section 70 of the Local Authorities Social Services Act 1970 made it clear that family and unrelated foster carers should be treated equally.  Where the Secretary of State had made statutory guidance applying to the question, a departure had to be justified by a cogent reason. The extent of the departure was immaterial, but the greater the departure, the more compelling the reasoning would have to be. The court would scrutinise such reasoning closely. In general, disagreement with statutory guidance would not amount to a cogent reason (R v Islington Borough Council, ex p Rixon (1998) 1 CCLR 119, R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 and R (Forest Care Home Ltd) v Pembroke County Council [2010] EWHC 3514 (Admin) considered) [20], [32] and [35]. (ii) That the decision in R (L) v Manchester City Council [2001] EWHC 707 (Admin), in which a policy of paying smaller allowances to short-term family foster carers was found to be discriminatory and thus unlawful, did not consider the issue in relation to fees [64] - [65]. (iii) The local authority was constrained by both the intention of Parliament that children should, where possible, be placed with family foster carers, and the requirement to comply with statutory guidance. Whilst the payment of lower fees could not be said to undermine Parliament's intention, it was clearly contrary to the statutory guidance. It was not possible to justify the difference of treatment on the basis of different tasks undertaken by family and non-family foster carers; to do so would be contrary to the equality principle contained within the guidance. The departure from the guidance was not so small so as to render the policy substantially compliant [83] - [85]. (iv) Although an authority could reasonably take the view that it was necessary to incentivise fostering by non-related carers, TH's departure from the guidance was essentially based on disagreement. There was no evidence that alternative policies had been considered, and TH had not discharged the burden on it to demonstrate cogent reasons for the departure. The policy was therefore unlawful [89] - [90], [92] - [94]. (v) That TH's decision not to make supplementary payments to X to account for ‘exceptional circumstances' should be challenged by way of the official complaints procedure, rather than judicial review [113].

Obiter: It was unnecessary to decide whether TH's policy breached Article 14 of the European Convention on Human Rights.

Declaration that TH's fostering policies were unlawful to the extent that they discriminated against family foster carers as opposed to non-family foster carers.

Key Paragraphs

[1] - [9] - Introduction

[10] - [14] - The legislation

[15] - [26] - The statutory guidance

[27] - [35] - Status of the guidance

[36] - [58] - The local authority's policies

[59] - [60] - The parties' submissions

[61] - [66] - The Manchester case

[67] - [96] - Irrationality/failure to comply with the statutory guidance

[97] - [105] - Article 14 of the Convention

[106] - [113] - Fettering of discretion/alternative remedy

[114] - Delay

[115] - Conclusion

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