(Queen's Bench Division, Males J, 8 March 2013)
The applicant had cared for three siblings for 3 ½ years and was their registered foster carer for 2 years. All three children had challenging physical and emotional needs and experienced severe neglect from a young age.
Prior to this placement three other placements had broken down before the applicant, the children's aunt, was approached. Their placement with her required the applicant to terminate her employment, move to a larger house and to become dependent on State benefits.
A recent looked after children review found that the claimant had provided an excellent standard of care for the children which would be virtually impossible to replicate elsewhere. She had brought a measure of calm and stability to their lives despite their continuing and very significant problems.
The claimant received an allowance from the local authority but due to its policy she received less than that she would receive if she were not related to the children. She claimed that the differential treatment was unlawful both as a matter of domestic law and applying the principles of Art 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. In addition she contended that the local authority's failure to pay her an enhancement to the weekly allowance in accordance with the policy to pay in exceptional circumstances had constituted undue fettering of its discretion in the application of that policy.
The local authority policies on fees and allowances were not in accordance with the statutory guidance issued pursuant to s 7 of the Local Authorities Social Services Act 1970 to the extent that they provided for different treatment of family and unrelated foster carers. The departure could not be characterised as so minor that there was substantial compliance.
The local authority had failed to discharge the burden of showing sufficiently cogent reasons for departing from the principle of equal treatment of family and unrelated foster carers in the payment of fees. On the evidence before the court the local authority had not considered other reasonable possibilities such as a payment structure based on qualification. Departure from the guidance in the claimant's case could not be justified.
While the policy was capable of falling outwith the terms of Art 14 of the European Convention, the fostering allowance did not fall within Art 8 and, therefore, a claim could not be supported.
The claimant's action in relation to the local authority's failure to pay her an enhanced fee was dismissed as a more suitable remedy, namely, the local authority complaints procedure, was open to her.
The court issued a declaration of unlawfulness.