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Grandmother caring for granddaughter wins battle with Kent CC to be paid as foster carer

Court of Appeal determines that granddaughter is a ‘looked after’ child

A grandmother who has battled for 6 years with Kent County Council to be paid the same rate as a foster carer for looking after her granddaughter, has won her case in the Court of Appeal. Kent County Council has said that it has no plans to appeal. 

R (SA) v Kent County Council [2011] EWCA Civ 1303 concerned the financial provision required to be made by Kent County Council to the grandmother of a child, A.  A had gone to live with her grandmother due to the local authority's concerns about the parenting she was receiving from her mother.  The local authority contended that this came about as a result of a private arrangement between the grandmother and A's mother, was therefore a private fostering arrangement, or it was a placement under s.23(6), Children Act, and A was not a looked after child.  Therefore, the local authority only needed to make discretionary payments to the grandmother under s.17, Children Act and there was no duty to pay a fostering allowance to the grandmother.  The grandmother who has now retired to look after the child was receiving £63.56 a week for her care – over £80 per week short of the average for foster parents who at the time were receiving about £146.23 weekly.

Black J (as she then was) at first instance had found that all discussions about A going to live with her grandmother were initiated by the local authority.  The local authority's ongoing involvement in the placement was consistent with it being a placement in which the local authority had taken the lead.  Crucially, the local authority had never indicated to the grandmother that they would expect her to make financial provision for A without help from themselves.

Black J had therefore held that the presence of the grandmother did not mean that the local authority could side-step its duty to accommodate A under s.20(1), Children Act 1989, a duty owed to A because her parents were unable to care for her.  

The Court of Appeal concurred with the view of Black J.  She had been entitled to find that the local authority placed A with her grandmother pursuant to s.23(2) and A therefore remained a looked after child.  The appeal was consequently dismissed.

The Court of Appeal then went on to consider the structure and wording of the old Section 23, and the earlier authorities dealing with the interpretation of that section, particularly in Re H (A Child) (Care Order: Appropriate Local Authority) [2003] EWCA Civ 1629.  In this case, the Court of Appeal had decided that s.23(6), Children Act places local authorities under a duty to enable a looked after child to live with a person to whom he is related or otherwise closely connected.  Once this is achieved, the looked after child ceases to be provided with accommodation by the local authority and therefore ceases to be a looked after child.

The unanimous view of the Court of Appeal was that this was probably an incorrect interpretation.  They preferred an interpretation, also suggested by Black J at first instance, that s.23(1) sets out the duty to provide accommodation to looked after children, s.23(2) sets out the ways in which the provision of accommodation might be achieved, and s.23(6) simply imposes a duty to try to place the child with a relative or friend. 

Commenting on the Court of Appeal's decision, Nigel Priestley, partner of Ridley & Hall, who acted for the grandmother, commented:

"Local authorities across the country have been waiting for this decision. We're delighted with the outcome. The County Council argued that they had no duty to the child even though their fingerprints were all over the case. Kent holds itself out as a model authority but it has been left with egg on its face. It put forward the radical suggestion that it had no significant financial duty to a child they had placed with a relative. They denied that she should be treated as a "looked after" child. The judge rejected this argument. The Court of Appeal agreed with her."

The grandmother said:

"I am no different from the thousands of grandparents and other relatives stepping in to care for children because there is a shortage of foster parents and carers.

"We shouldn't have to find ourselves battling with the local authority for support. I was asked by the local authority to step into the breach. I have given up a great deal to care for my granddaughter. 

"I put myself out and expected the local authority to do the same but they did not."

The Grandparents Association has welcomed the judgement.  Lynn Chesterman, the Chief Executive of the Association, said:

"Too often, as in this case, grandparents are struggling to cope financially - living on a pension and bringing up children. They simply do not have enough money to live on. I hope that Kent has learnt its lesson – and that other Councils start taking their responsibilities seriously."

The judgment and Sally Gore's case summary can be read here.