Saturday’s local Telegraph and Argus report, (‘Union hits out at Council plans to cut foster carers allowances’) of Bradford City Council’s plan to reduce the core child element of their foster care allowances to the government minimum level, triggered twitter confusion about the applicable law and whether anything had changed.

An earlier report is here: ‘Care is needed over fostering payment cuts’ and yesterdays report of the formal decision in cabinet yesterday is here: Cries of ‘shame’ as Council bosses vote to cut foster carers’ allowances in fraught meeting’

Bradford effectively said the decision (which incidentally would eventually save them nearly half a million pounds annually) was made to bring them into line with the law about parity for allowances under different legal ways of caring for children.  They said it wasn’t just special guardianship order allowances that needed to be equivalent to their fostering allowances but also adoption and child arrangement order (formerly residence order) allowances too. Cost prohibited the option of lifting all to match the fostering allowance. The Union on behalf of Lewisham foster carers seemed to suggest that Bradford were choosing to interpret the law in such as way as to (presumably) make cost savings.

We’ve pulled together some key information here to help readers make sense of the press reports and form their own view. It’s a confusing area, often poorly understood by families and professionals alike.

Fostering Allowances

Councils are required to pay foster care allowances of at least the prescribed government minimum rate though they can pay more and many do (Para 5.71 Fostering Services Guidance and Regulations and National Minimum Standard 29.1)

A foster care allowance is made up of different elements:

• The child maintenance allowance. The rates vary by age of child and area and are re-issued annually as rates change. They are published at gov.uk
• The professional fee element
• Plus any additional payments for birthdays, religious festivals and holidays; or to reflect a particular child’s extra needs

(See Fostering Network for more information)

Fostering Allowances for connected or family and friends foster carers

Family and friends foster carers should be paid the same as other unrelated foster carers (Manchester City Council v F (2002) 1FLR 43;  R v London Borough of Tower Hamlets [2013] EWHC 480 (Admin); Fostering Services Guidance and Regulations (para 5.71) and Minimum Standard 30.10

Fostering allowance payment schemes that automatically pay family and friends foster carers less, based on their connected status, are unlawful. Councils retain their discretion to distinguish for genuine but equitable reasons eg. many councils pay a higher fee element to foster carers who have completed training and/or are caring for particularly complex children but specifically on the basis that those higher rates are also available to connected foster carers who elect the training and /or are care for children with equivalent complexity of need etc.

Calculating Special Guardianship Order Allowances

Councils policies for calculating Special Guardianship Order Allowances (SGOA’s) should also be based on the child allowance element of their fostering scheme. (Para 63 Special Guardianship Orders Statutory Guidance; and R(B) v Lewisham LBC (2008) EWHC 738; and Barrett v Kirklees Metropolitan Borough Council [2010] EWHC 467 (Admin) 

(Remember SGOA’s are means tested, discretionary payments. They have no fee element other than (usually) transitionally for up to 2 years in the case of a former foster carer getting used to being paid a lower SGO upon loss of the fee element).

(Also Kinship Carer’ or ‘Family and Friends Carer’ is not a legal status but a generic name for all types of legal arrangement by which family and friends can care for someone else’s child. See Family Rights Group Advice Sheet 21 Support for relatives and friends caring for someone else’s child.)

What about Child Arrangements Order and Adoption Order Allowances – and Bradford City Councils contention that the law requires them to also pay these at the same rate as their fostering allowances?

 The Telegraph and Argus quote Jim Hopkinson, deputy director of children’s social care, saying that

the main driver for the change was a legal consideration….foster carers were paid higher allowances than other carers – such as extended family members who were caring for children under special guardianship arrangements. Case law meant they had to even this out or face potential legal challenges, but raising the lower of the fees would cost the authority an extra £1.6m.

In an earlier article Bradford are quoted as saying

the decision has been forced on it by recent case law which could leave it facing the potential of costly legal challenges if it chose to keep the existing system of two different rates paid to foster carers or extended families.

We know of no ‘new’ case law. There might be something to be reported shortly or that we have overlooked but the recent report of the Telegraph and Argus suggests otherwise in that it reports Bradford as no longer referring to ‘recent case law’ but ‘deemed to be necessary’ for legal reasons; and to them being asked for a copy of the legal advice they relied on in justification of the decision.

We assume it is based on remarks in the Lewisham case in 2008 repeated in the Kirklees case in 2010 that Bradford (like many councils) have until now interpreted as requiring them to harmonise their fostering allowance rates with SGO Allowances, without requiring the same of their schemes for calculating Child Arrangement Order or Adoption Order Allowances.

Together with principles set out in the Family and Friends Care Statutory Guidance 2011.

Case law remarks

Black J in the High Court decision in Lewisham specifically decided the point only in relation to SGO Allowances.

But she does mention Lewisham’s Adoption Order Allowance scheme so as to rule that their SGO Allowance policy that pegged itself to their adoption allowance scheme was unlawful and made other relevant remarks about the wider context of all allowances:

I have formed no concluded view about the local authority’s adoption support scheme although I record that my impression is that it may have precisely the same flaws as I have found the special guardianship scheme to have. Accordingly, it is not beyond the bounds of possibility that it will ultimately turn out that adoption and special guardianship payments are in fact appropriate twins but that both need to be raised so that they bear a proper relationship to fostering allowances (para 55)

…putting it at its lowest, a local authority is not free, in my view, to devise a scheme which fails to do what is required by regulation 6 [SGO Regs] or which dictates that some types of placement for a child carry a significant financial disadvantage in comparison with others or, worse, would impose such a financial strain on a carer that they would be forced to choose another type of placement. This local authority’s scheme does this in relation to the grandmother and for that reason and in the light of the local authority’s failure to have proper regard to the regulations and Guidance is unlawful and must be quashed (para 57)

I am not sure whether it is wholly accurate to say as a generality that fostered children are more expensive although I have not got sufficient information to form a concluded view about this. I do accept that, as the local authority argue, there are specific aspects of caring for a fostered child which complicate the arrangement and which are not present with an adopted child or one who is with a special guardian, notably the requirement to participate with the local authority in its supervisory role over the placement. That apart, however, some children who are placed with special guardians are in situations which have derived from former fostering arrangements or other situations which have child protection aspects and the cost of bringing up these children may not be significantly less than the cost of bringing up fostered children. (para 53)

The Family and Friends Care Guidance 2011

The Family and Friends Care Guidance 2011 (which should ordinarily be followed) set out a framework for a more integrated system of support to families and a requirement for all councils to have their own (published and widely available) local Family and Friends Care Policy by September 2011. It included:

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 (4.3); and

Policies should be underpinned by the principle that support should be based on the needs of the child rather than merely their legal status (4.6); and

Whilst recognising the requirements which may go with a particular legal status, it is essential that services are not allocated solely on the basis of the child’s legal status, and that commissioners and providers of services are aware that many children in family and friends care have experienced multiple adversities similar to those of children who are looked after by local authorities. Where support services are identified as necessary to meet the child’s needs, these should not be withheld merely because the child is living with a carer under an informal arrangement rather than in a placement with a foster carer or with a person with a residence or special guardianship order or an adopter (para 2.12)

Many question Bradford’s claim that not aligning rates across the board leaves them open to the cost of future legal challenges and speculate that the decision is likely to be driven by savings given the absence of any recent change in the legal landscape.

What does seem clear is that Bradford’s decision as reported by the Telegraph and Argus is not about new law but about interpreting existing law in the context of unprecedented council budget pressures.