R(X) v LB Tower Hamlets [2013] EWHC 480 (Admin)T

The claimant was a family foster carer of three children with extremely complex needs. She was paid less in benefits than an unrelated foster carer would have been, and complained that such treatment was unlawful and contrary to Art.14 (read together with Art.8) of the ECHR.

The authority defended the different rates of payment on the basis that unrelated foster carers were expected to be more flexible, more available, better trained, and to take in a wider variety of foster children, than family foster carers.

The Court held that unequal payments of allowances and fees were contrary to guidance issued under s.7, LASSA 1970, which required equality of treatment between family foster carers and unrelated carers. The inequality of treatment was too great to say that there had been substantial compliance, and there were no compelling reasons for departing from the national guidance. On the other hand, it was not irrational for the local authority to operate a scheme intended to provide an incentive to become a foster carer by indirectly paying more to unrelated foster carers. It would have been lawful, for example, to operate criteria for a higher level of payments that unrelated foster carers were much more likely to satisfy, provided that they were related to the needs of the child in question. The problem in this case arose because the authority’s approach conflicted with the statutory guidance.

On the other hand, it was permissible for the authority to restrict payments for holidays and birthdays to family foster carers, provided that applications for such payments were considered on a case-by-case basis and not rejected in a blanket fashion.

The Court did not reach a conclusion as to whether Article 14 applied in the present case, preferring not to decide whether a fee received for providing fostering services fell within the ambit of the protection of family and private life offered by Article 8.

COMMENT: The claimants won what may yet prove to be a Pyrrhic victory. It remains open to local authorities to pay less to family foster carers provided they do so indirectly, provided that the grounds for differential treatment can be reasonably justified. There may always be family foster carers who are able to satisfy any such criteria, but the underlying assumption of the court is that the two roles are different and may therefore be treated differently.