England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS

		Leeds Combined Court Centre The Court House 1 Oxford Row Leeds LS1 3BG
		12 March 2010

His Honour Judge Langan QC:

Introduction

1. Special guardianship orders were introduced into family law by the Adoption and Children Act 2002. Broadly speaking, these orders are designed to enable a child who would otherwise be the subject of a care order to be looked after by a relative. Where a special guardianship order is made, and financial support is necessary to ensure that the special guardian can look after the child, financial support is payable by the relevant local authority. This case has to do with the level of such support. The policy of the defendant council ('Kirklees') is to pay special guardianship order allowance ('SGOA') at two-thirds of the rate at which it pays fostering allowance. The claimant ('Mrs Barrett') is the special guardian of her grandson ('Liam'). In this claim for judicial review, Mrs Barrett challenges the lawfulness of that policy. Her application for permission to apply was initially refused by me on the papers, but was allowed by Foskett J on a renewed oral application.

Special Guardianship Guidance

2. The legislative framework within which SGOA is paid is set out at length in the judgment of Black J in B v London Borough of Lewisham [2008] EWCH 738 (Admin). It is not necessary for me to set out that framework here because in this case, as before Black J, there was just one quasi-statutory provision on which debate was focused. This is paragraph 65 of Special Guardianship Guidance published by the former Department for Education and Skills:

"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 local authority's core allowance plus any enhancement that would be payable in respect of the particular child will make up the maximum payment the local authority could consider paying the family. Any means test carried out as appropriate to the circumstances would use this maximum payment as a basis."

By "core allowance" is meant that element of fostering allowance which represents the cost of maintaining the child as distinct from the remuneration of the foster parents.

3. As Black J pointed out at paragraph 20 of her judgment, this guidance was issued pursuant to section 7 of the Local Authority Social Services Act 1970. The effect of this is that a local authority is required to follow the 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": the citation is from the judgment of Sedley J in R v Islington LBC, ex p Rixon (1997-8) 1 CCLR 119 at 123.

Kirklees' policy

4. The relevant policy applied by Kirklees was approved at Cabinet in February 2007. The scheme is that each of three distinct allowances, residence allowance, adoption order allowance and SGOA, is paid at two-thirds of the rate at which fostering allowance is paid, but with a deduction of child benefit unless the claimant is on income support. The reference to fostering allowance is to the core element. That basic rate of fostering allowance depends on the age of the child.
5. The adoption of the policy was supported by the following rationale:

"1. Holders of Residence Order, Special Guardianship Orders or Adoption Orders do not have formal duties to perform in the same way as foster carers. The child is no longer looked after so there are no reviews to attend, no courts to visit, no case conferences and no requirement to undertake training.

2. An advantage of placing a child with his/her relatives is that they have an established relationship with the child and it is the existence of such a relationship that promotes stability and less destructive behaviours.

3. One of the advantages of placing a child with a relative is that ongoing contact with birth parents and others is usually a feature of routine family life.

4. A child subject to Residence or Special Guardianship Orders are [sic] usually placed with relatives at the end of a legal process [which] will mean that the placement may tend to be more stable with less pressure on carers' time.

5. To comply with National Care Standards foster carers need to demonstrate a high level of availability. No such standards apply to holders of Residence or Special Guardianship Orders.

6. Foster carers cannot claim child benefit. Holders of a Residence Order, Special Guardianship Order or Adoption Order can claim child benefit (though this is deducted from the allowance paid).

7. Unlike foster carers holders of such orders are entitled to apply for other state benefits…

8. The courts will have scrutinised the care plan submitted by the Local Authority and considered by a child's independent Guardian. The Court must be satisfied with the plan and support package to have endorsed the making of a final order. The court has the ultimate role in scrutinising and making such decisions after considering all the information available."

Mrs Barrett and Liam

6. Mrs Barrett is aged 63 years. She has no private means and receives pension credit.
7. Liam was born on 16 August 2002 and is Mrs Barrett's grandson. The Social Services Department of Kirklees became involved with Liam, following concerns about the ability of his mother to look after him. In May 2005 Liam was assessed as a child in need. In June 2005 he was registered under the category of emotional abuse. In the same month, Liam's mother was compulsorily detained under the mental health legislation. Liam was then placed with foster carers, care proceedings were issued, and Kirklees obtained an interim care order.
8. Mrs Barrett put herself forward as a potential carer for Liam. She was made a party to the care proceedings, but did not consider applying for a special guardianship order. Her position in the proceedings was that a care order was appropriate. The idea that Mrs Barrett should become Liam's special guardian came late in the day from the social worker who was involved in the case and this was supported by Liam's independent guardian
9. At the final hearing in the care proceedings, which took place on 17 March 2006, the court made a special guardianship order to Mrs Barrett with a three year supervision order to Kirklees. I do not think that it is unfair to say that the special guardianship plan which was put to the court was cobbled together at the last minute: it fact it was signed by the social worker and her manager on the day of the hearing. The plan stated that SGOA would be paid at £74.71 a week, which was said to be based upon residence allowance which was itself two-thirds of fostering allowance.
10. Soon after the final hearing, Liam was moved from his foster carers to Mrs Barrett and he has been living with her ever since.
11. There is no doubt that Liam is a handful. Mrs Barrett describes him as "a very damaged child" whose behaviour at home is "often terrible." He is "quite violent" and "shouts and screams when he does not get his own way." He "finds it impossible to play with other children out of school." School does absorb his energy, but school holidays "are a nightmare", and Mrs Barrett does not have the money to pay for the activities which would use up Liam's energy and keep him occupied. Further, Mrs Barrett has had to face contested proceedings brought by Liam's mother for increased contact, and such contact as there is has to be supervised through Social Services and "is anything but routine."
12. There has never been any individual assessment of Mrs Barrett's financial requirements in respect of Liam. She complains, understandably, that there were no annual reviews of the amount to be paid to her, and it was only after the commencement of these proceedings that Kirklees made an appropriate backdated lump sum payment. Efforts have been made by Mrs Barrett through her solicitor to obtain proper explanations of the position adopted by Kirklees. As Mrs Barrett sees matters, she has achieved nothing through these approaches and has been forced to commence this litigation.

The Lewisham judgment

13. As Mrs Barrett, through her counsel, relies heavily on Black J's judgment in Lewisham, it is necessary to look at that case in a little detail.
14. In Lewisham, which like this case related to a grandmother special guardian, the council devised a scheme under which SGOA was paid at the same rate as adoption allowance. The grandchild concerned was 12 years old, and it is not possible to discern from the judgment what a non-relative who might have fostered her would have received. But there are instructive comparisons for younger children. The council was paying £84.33 a week, less child benefit, for an adopted child aged 0-4, and SGOA was the same amount. The fostering rate for a child aged 0-7 was £278.60 a week (£190.06 for the core elements, £48.07 for training and £40.47 by way of reward).
15. The policy of linking SGOA to adoption allowance was held to be unlawful. Paragraph 65 of the Guidance did not create an obligation on the local authority to pay SGOA at precisely the rate of core fostering allowance, but did indicate that "those responsible for the Guidance were thinking in terms of a close association between fostering allowances and special guardianship allowances": paragraph 49. Put another way, it was likely that "those giving the Guidance intended that the local authority's fostering allowances would serve as a ranging shot for the local authority's consideration of what their special guardianship provision should be or at least be held firmly in mind when fixing that provision": paragraph 47. The council had failed to justify its "radical departure" from the Guidance, had "failed to understand the central importance that paragraph 65 gives to the amount paid by way of fostering allowances", and had instead made "a rigid link with adoption allowances which was not in accordance with the Guidance": paragraph 54.
16. Black J found it unnecessary to address additional arguments which were based on alleged breaches of Convention rights under articles 8 (respect for family life) and 14 (non-discrimination).

Some figures

17. The core element of the fostering allowance which Kirklees would pay of Liam were with foster carers would be £142.49 a week. The SGOA is set at two-thirds of that rate, so that Mrs Barrett gets £94.99 a week. It is, however, fair to point out that, whilst child benefit is not payable to foster carers, it is payable to Mrs Barrett and, because she is in receipt of pension credit, no corresponding deduction is made from her SGOA. Accordingly, Mrs Barrett receives for Liam £114.99 a week, which is 80.7 per cent of the core fostering allowance.
18. Figures which have been obtained by Kirklees from neighbouring authorities throw up remarkable disparities, both in the nature of the scheme operated and in the amounts paid. Thus the East Riding of Yorkshire County Council, very similarly to Kirklees, pays fostering allowance at £142.29 and SGOA at £92.62. Wakefield and Leeds each adopts a common rate for fostering allowance and SGOA: but the rates are very different, £104 in Leeds and £158 in Wakefield. (The Wakefield rate is made up of a core of £108 and a skills enhancement of £50, but so far every special guardian in Wakefield has received the enhancement).
19. Mrs Barrett in her second witness statement has produced examples of the approaches adopted by more distant local authorities. The material which she has obtained can be summarised in this way: that it shows a movement, following the Lewisham decision, in the general direction of aligning the starting-point for SGOA with fostering allowances, but subject to various qualifications (the most significant of which is deduction of child benefit).

Discussion

20. I am grateful for the written and oral submssions of counsel, Mr Patrick Roche who appeared for Mrs Barrett, and Ms Julia Nelson who represented Kirklees.
21. At the beginning of her oral submissions, Ms Nelson said that the essential question for the court was whether the setting of SGOA at two-thirds of core fostering allowance, but without deduction of child benefit, was a sufficient approximation to core fostering allowance within paragraph 65 of the Guidance and the decision in Lewisham. This is a helpful approach, and I would do no more than query the reference to non-deduction of child benefit. There is, as has been seen, no deduction in the case of a special guardian who is in receipt of income support or (like Mrs Barrett) pension credit. But so far as the policy is concerned, the normative situation is that of a special guardian who is not in receipt of benefit and so will receive as SGOA an amount equivalent to two thirds of the core element of fostering allowance.
22. To pay SGOA at two-thirds, or even at 80.7 per cent, of fostering allowance is, as Ms Nelson acknowledges, a deviation from paragraph 65 of the Guidance and must therefore be justified on rational grounds. Ms Nelson reminded me at the close of her submissions, that, in setting the rate of SGOA, Kirklees is exercising a discretion and the court is not entitled simply to block off that exercise other than on proper administrative law grounds. That is entirely correct. It has, however, also to be borne in mind that, the more substantial the departure from the policy contained in the Guidance, the more convincing should be the reasons which are advanced in support of that departure. One has to bear in mind that SGOA is intended to pay for the cost of bringing up a child who would not ordinarily be the responsibility of the special guardian; and also that children who are the subject of orders in public law proceedings all too often come from families who are economically on the margins of society. On this basis, the deviation in this case must inevitably be characterised as substantial and the required justification has to be proportionately powerful.
23. The search for justification must begin with the rationale which Kirklees produced in support of the decision by Cabinet in February 2007. (The initial decision taken 11 months previously when the special guardianship order was made was of an ad hoc nature and seemingly not supported by reasoning of any kind.) The 2007 rationale has been set out in paragraph 5 of this judgment. It was the subject of close dissection by Mr Roche, but there was no correspondingly vigorous defence of if from Ms Nelson, who said that she "had to accept that the rationale is not very thoroughly or very carefully worded." In fact, most of the rationale has not logical connection whatever with the decision which it is supposedly supporting: the question is not one of right or wrong, but of simple irrelevance. Of the eight numbered reasons, 2, 3 and 4 are no more then general and somewhat anodyne observations about guardianship orders; 1 and 5 highlight the formal duties incumbent on foster carers but, as no mention is made of the fact that foster carers obtain remuneration, this cannot be a justification of paying a special guardian much less than a foster carer; and 6 refers to the fact that foster carers cannot claim child benefit, but ignores the fact that child benefit is set off against SGOA where the guardian is not on income support. 7 has to do with claims to other state benefits: as both core fostering allowance and SGOA are supposed to cater for the basic cost of maintaining a child, it is difficult to see what relevance these benefits can have to the setting of a differential between the two allowances. 8 states, correctly, that a care plan (meaning, presumably, a special guardianship plan) will have been scrutinised by a court, but ignores the fact that the court cannot fix, or influence, the rate at which SGOA is paid. It is hardly surprising, and in no way her fault, that Ms Nelson was able to make so little out of this rationale.
24. Ms Nelson relied on two matters as justifying the Kirklees policy.
25. First, Ms Nelson referred to material produced by the Fostering Network by way of introduction to the Network's statement of minimum recommended allowances. The Network says that there are additional costs in bringing up a foster child which arise "on account of the characteristics of fostered children and the characteristics of fostering" and that research shows that "the cost of looking after a child in foster care [is] 50 per cent higher than the costs of looking after a birth child." So, the argument goes, the Kirklees core fostering allowance is the equivalent of 150 per cent of the cost of bringing up a birth child, and two-thirds of core fostering allowance is 100 per cent of that cost, in other words precisely what it takes to look after a birth child. There is, accordingly, no way in which Mrs Barrett or others in her position are being short-changed.
26. In my judgment, this ingenious argument will not save the policy. It did not underlie either of the decisions made by Kirklees. It assumes something which may or may not be the case, namely, that Kirklees has set out to fix core fostering allowance at 150 per cent of the cost of bringing up a birth child. The argument does not find any justification in the Guidance. Finally, as Black J pointed out in paragraph 53 of her judgment in the Lewisham case, "some children who are placed with special guardians are in situations which have derived from former fostering arrangements… and the cost of bringing up these children may not be significantly less than the cost of bringing up fostered children." What Black J says may be particularly apposite in this case, given what Mrs Barrett has said about the difficulties which are presented by Liam and given also that he was made subject to a three year supervision order.
27. The other point taken by Ms Nelson was the fact that SGOA is a "gateway benefit" which opens the door to other state benefits. There is, in my judgment, nothing in this point. Under the relevant regulations, "in determining the amount of financial support, the local authority must take account of any other grant, benefit, allowance or resource which is available to the person in respect of his needs as a result of becoming a special guardian of the child": The Special Guardianship Regulations 2005 (SI 2005 No 1109), regulation 13(2). This is what Mr Roche called a stage 2 consideration, which must be taken into account when setting the SGOA allowance to be paid to a particular guardian. It cannot, however, be a reason for setting, at stage 1, the initial ceiling on SGOA, that being a policy decision which is of general application and one which cannot take account of the different benefits (and different rates at which some of these may be payable) which may be available to individual guardians.
28. Ms Nelson made some observations on delay in her written submissions but, although not in terms abandoning the point, she did not pursue this aspect of the case in her oral submissions. I assumed, I hope correctly, that the issue of delay had been resolved by the fact that Foskett J gave leave for the claim to proceed.

Conclusion

29. For the reasons which I have given, I have come to the conclusion that the submissions which have been advanced on behalf of Mrs Barrett are right. Kirklees' decision of March 2006, and the policy enunciated in February 2007, to pay SGOA at two-thirds of core fostering allowance, involved a substantial departure from the relevant ministerial guidance. No sufficient justification for that departure has been provided. It follows that the decision and policy were, and the policy remains, unlawful.
30. As in Lewisham, alternative arguments based on articles 8 and 14 were briefly advanced. Like Black J, I do not find it necessary to examine these arguments. I do, however, observe that in the one case cited on the point, in which Convention arguments were accepted by Munby J, the relevant differentials between sums paid to different classes of carers were extreme by comparison with the figures in the instant case: see R on the application of L and others v Manchester CC (2002) 5 CCL Rep 268, particularly at paragraphs 23-25, 31. It seems to me to be probable that, if Mrs Barrett's Convention arguments had been fully deployed in this case, they would not have succeeded.

Disposal

31. There will be appropriate declarations; an order requiring Kirklees to carry out a fresh assessment of the SGOA payable to Mrs Barrett since 17 March 2006; and an order for the payment of any sums found due as a result of such assessment.