Factual and Procedural Background
The Plaintiff is the foster mother of her two nephews and one niece, caring for three children with complex needs who were removed from their parental home due to severe neglect and parental incapacity. After multiple failed foster placements, the local authority (the Council) approached the Plaintiff to care for all three children together. She agreed, giving up her employment and relocating to provide care. The Plaintiff was formally approved as a registered foster carer in 2011 after meeting stringent requirements. The children have significant disabilities and behavioural challenges, and the Plaintiff has provided a stable and supportive environment, which has been acknowledged as exceptional by the Council's reviews.
The Plaintiff initiated judicial review proceedings challenging the Council's policy and practice of paying family foster carers, like herself, less than unrelated foster carers for caring for the same children. The Administrative Court, presided over by Judge Males, held that the Council's policies were unlawful to the extent that they discriminated on the grounds of the pre-existing relationship with the child between family and unrelated foster carers. The court did not determine the alternative ground of challenge based on the European Convention on Human Rights (ECHR).
The Council appealed the decision. The appellate court dismissed the appeal, extending the time for the Council to reconsider its policies.
Legal Issues Presented
- Whether the Council's fostering policies, which pay family foster carers less than unrelated foster carers, comply with statutory guidance and public law principles.
- Whether the Council has cogent and permissible reasons to depart from statutory guidance requiring equal treatment of family and unrelated foster carers in payment of allowances and fees.
- Whether the Council’s policy unlawfully discriminates against family foster carers on the basis of their pre-existing relationship with the child.
Arguments of the Parties
Appellant's Arguments (The Council)
- The Council contended that the differing roles and expectations of family and unrelated foster carers justify differential payments, including fees and allowances.
- Unrelated foster carers must be available at short notice and care for a wider range of children, justifying higher payments.
- The Council argued that the statutory guidance is not binding and that local circumstances may justify departure from it.
- It was submitted that payments to family foster carers are sufficient to meet the needs of the children placed with them.
- The Council denied that the guidance provisions were instructions or directions, asserting that they are not legally binding in the strict sense.
- It was argued that statutory regulation of payments was not mandatory, and guidance was a proper vehicle for the Secretary of State’s policy.
Respondent's Arguments (Plaintiff)
- The Plaintiff challenged the Council's policy as unlawful discrimination against family foster carers in breach of statutory guidance and public law principles.
- She relied on statutory guidance requiring equal treatment of family and unrelated foster carers in payment of allowances and fees.
- The Plaintiff argued that the Council’s policy failed to comply with the welfare principle and the statutory preference for placing children with family carers.
- It was contended that the Council lacked cogent reasons for the differential treatment and had not properly considered alternatives consistent with statutory duties.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (L and others) v Manchester City Council [2002] 1 FLR 43 |
Unlawfulness of discriminatory foster carer payment policies; irrationality and breach of ECHR Articles 8 and 14. |
The court distinguished this case on factual grounds but acknowledged its foundational role in shaping statutory guidance on equal treatment of foster carers. |
| R v Islington Borough Council ex parte Rixon (1998) 1 CCLR 119 |
Legal principles on statutory guidance and departure from it. |
Used to summarize the legal framework that statutory guidance is not binding but departure requires cogent reasons. |
| R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148 |
Clarification of the binding nature of statutory guidance and conditions for lawful departure. |
Supported the principle that departure from guidance must be justified by cogent reasons and that minor departures may be permissible. |
| R (Munjaz) v Secretary of State for the Home Department [2006] 2 AC 148 |
Distinction between guidance and instruction; use of "must" in guidance. |
Confirmed that statutory guidance may use mandatory language but still permits departure for cogent reasons. |
| Pankina v Secretary of State for the Home Department [2011] QB 376 |
Requirement for statutory instruments where statute mandates formal rules (Immigration Rules). |
Rejected the argument that statutory guidance on fostering payments must be issued by statutory instrument; distinguished from Immigration Rules. |
Court's Reasoning and Analysis
The court began by acknowledging the factual differences between the present case and the Manchester case, particularly that the payments here exceeded the national minimum allowances and met the children's needs. However, the court emphasized that the Council's policy of paying family foster carers less than unrelated carers, particularly regarding fees and reward elements, was inconsistent with statutory guidance mandating equal treatment.
The court analyzed the statutory framework under the Children Act 1989 and related statutory guidance, which collectively require local authorities to safeguard children's welfare and promote placement with family carers where possible. The guidance explicitly states that allowances and fees should be calculated and paid without discrimination between family and unrelated carers.
The court considered that while statutory guidance is not binding secondary legislation, departure from it requires cogent and compelling reasons. The Council’s disagreement with the guidance was insufficient to justify its policy. The court found that the Council had not adequately considered alternatives to its differential payment policy, such as qualification-based criteria for fees that could apply equally to all carers.
The court rejected the Council’s submission that statutory guidance was replaced or superseded by the statutory power to make orders regulating payments, holding that the power to issue guidance remains valid and operative. The court also dismissed the argument that the language of the guidance ("must") converted it into binding instructions.
Ultimately, the court agreed with Judge Males that the Council's policy unlawfully discriminated against family foster carers without cogent justification and that the policy was inconsistent with the statutory preference for family placements and the welfare principle.
Holding and Implications
The appeal by the Council is dismissed.
The court upheld the decision that the Council’s fostering policies are unlawful to the extent that they discriminate against family foster carers by paying them less than unrelated foster carers, particularly in relation to fees and reward elements. The Council was granted an extended period to reconsider and revise its policies in compliance with statutory guidance and legal principles.
This decision directly affects the parties by requiring the Council to equalize payments to family and unrelated foster carers unless cogent, objectively justified reasons exist for differential treatment. No broader precedent beyond the application of existing statutory guidance and public law principles was established.