R (X) v London Borough of Tower Hamlets  EWCA Civ 904 raises the specific question of a council's power to fix foster carer allowances and fees; and more generally the extent to which a public body may diverge from guidance issued by the relevant minister. Statutory guidance is just that: guidance. It does not have the force of delegated legislation. But if it is to be diverged from it must be for ‘cogent reason', and that is a principle which applies to any public body which is subject to guidance issued by its supervising government department.
X is a foster mother who is the aunt of three children. Their background and behaviour made them very difficult to care for. She succeeded, and she kept them together in the process. This was at considerable disruption to her own personal circumstances. Because she was related to the children the council had resolved to pay her less than if she had been unrelated. She challenged this as unfair. Males J held that it was indeed unlawful because it did not properly take statutory guidance into account and was discriminatory against a related foster parent ( EWHC 480 (Admin)). He gave the council three months in which to reconsider its policies.
The statutory framework of fostering arrangements is set out in Children Act 1989, Part III, including provision for accommodation in s 22G(2). Local authorities are required by Local Authority Social Services Act 1970, s 7 to act under the general guidance of the Secretary of State who has further power to issue guidance in accordance with Care Standards Act 2000, s 23. Maurice Kay LJ sets out the three guidance notes issued under these provisions. In particular, he cites (at ) Fostering Services: Minimum Standards - standard 28.7 requires that fees and allowances are ‘applied equally to all foster carers, whether the foster carer is related to the child or unrelated'; and standard 30.10, namely that financial support should not ‘discriminate' against related foster parents.
On the authority of guidance the court approved (at ) the formulation of Males J (at ):
In summary, therefore, the guidance does not have the binding effect of secondary legislation and a local authority is free to depart from it, even 'substantially'. But a departure from the guidance would be unlawful unless there is cogent reason for it, and the greater the departure, the more compelling must that reason be ... except perhaps in the case of a minor departure, it is difficult to envisage circumstances in which mere disagreement with the guidance could amount to a cogent reason for departing from it.
Males J held that the council ‘essentially disagreed with the guidance', but did so without the ‘cogent reasons' required. It followed from this that the council's policy was unlawful by discriminating against foster parents related to the children.
The Court of Appeal agreed with Males J. Maurice Kay LJ defined the issues as: had the council departed from the statutory guidance; and if so, did it have ‘cogent permissible reasons for so doing' ()? On this first issue, the council did not comply with the guidance (). As to whether they had ‘cogent reasons': these might be explained after the event; but even then they could not be explained here. Children Act 1989, s 22C(7)(a) urges that children be kept with family and friends. The guidance on payments was in part a reflection of this.
David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Judicial review is dealt with in Chapter 11.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.