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Tower Hamlets' foster policy declared unlawful

Council has three months to reconsider its policy.

The foster policy of London Borough of Tower Hamlets has been been declared to be unlawful because it discriminates against family and friend foster carers.

In R (on the application of X) v London Borough of Tower Hamlets [2013] EWHC 480 (Admin), Mr Justice Males required the local authority to reconsider its policy.

Mrs X cares for three of her brother's children, all of whom have special needs. The 3 children, now aged 15, 14 and 7 years, all have learning difficulties, emotional problems and bed wet. The middle child also has autism, Tourette's syndrome, features of ADHD, self harming behaviour and when he first arrived into Mrs X's care he was doubly incontinent. The youngest child also has autism, ADHD and severe development delay, he requires constant supervision, including throughout the night and can be prone to violence, attacking other children and nursery staff.

The children's parents were unable to look after them and the council took the children into foster care. The children were placed with professional foster carers. After three separate placements, the council asked Mrs X if she would be willing to look after the 3 children as they could not find a professional foster carer willing to take on all the children.

In 2009, at the request of the council, Mrs X gave up her professional job and financial independence, became reliant on state benefits, moved to the countryside and started to care for the children. She received very little help in caring for the children. The fostering allowance that she received was significantly below that which the professional foster carers received.

Due to Mrs X's concern about her ability to manage with the children, Ridley & Hall, on her behalf, requested help so that Mrs X would be able to cope with the children and asking the council to pay her the same allowance as they would have paid to a professional foster carer. The matter was complicated by an ongoing family court case concerning the children and who should have had parental responsibility. Support was delayed to find out the result of various reports required within the family proceedings. In September 2010, the family court decided that the local authority should have parental responsibility and granted an interim care order, which was eventually made into a full care order.

By December 2010, Mrs X was extremely concerned that she would not be able to continue caring for the children due to the level of exhaustion she felt and the lack of support. Emergency High Court judicial review proceedings were issued requesting practical support to be provided to Mrs X and that she was paid the same allowance as a professional foster carer.

In January 2011, the council agreed to fund respite care, where someone else would look after the children over a weekend to allow Mrs X a break. In addition they also agreed to fund a babysitting service. Therefore the only challenge left in the High Court case was the level of allowance the Mrs X was receiving.

Rebecca Chapman of Ridley & Hall Solicitors said:

"It has to be noted that although the council agreed to pay for the support there was enormous difficulty in finding someone who would be willing to look after the children due to their special needs. I believe that the council approached over 60 agencies and did not manage to find someone to care for the children. By 2012 the council agreed to pay Mrs X's brother, who was not the father, to provide respite on a temporary whilst they looked for a professional carer.

"By around October 2012 professional respite carers had been found but this was only after the decision had been made to separate the children for respite."

In April 2011 the council issued a new foster care policy which clearly stated that they were paying family and friends foster carers £171 per week less than professional foster carers. The council issued a further additional policy in November 2011 which stated that the £171 per week for professional foster carers was a fee/reward and family and friends carers were not eligible for the fee/reward.

The council issued a further policy in April 2012 in order to make sure that the extra expense of looking after children with special needs was covered by paying an enhancement to the fostering allowance. However, half of the new enhancement was payable to meet the extra expense of looking after the children and the other half was a fee/reward element only payable to professional foster carers. This was on top of the £171 per week per child fee/reward element the professional foster carers were receiving under the 2 previous policies. Mrs X, as the children's aunt, could not receive the fee/reward elements, even though she was succeeding to care for 3 difficult children where professional foster carers had failed.

The High Court heard the case in February 2013. The judgment was given on 8th March 2013 that found the council's policies were unlawful because they discriminated against family and friends carers as they were not eligible to be paid the fee/reward part of the fostering allowance.

The judgment can be read here.

Fiona Scolding of Hardwicke (instructed by Ridley and Hall Solicitors) represented Mrs X. Kelvin Rutledge of Cornerstone Barristers represented London Borough of Tower Hamlets.