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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> L & Ors), R (on the application of) v Manchester City Council [2001] EWHC 707 (Admin) (28 September 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/707.html Cite as: [2002] 1 FLR 43, [2002] Fam Law 13, (2002) 5 CCL Rep 268, [2001] EWHC 707 (Admin), [2002] ACD 45, [2001] EWHC Admin 707 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE MUNBY
Strand London WC2A 2LL |
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B e f o r e :
____________________
R (L and others) | ||
v | ||
MANCHESTER CITY COUNCIL | ||
R (R and anor) | ||
v | ||
MANCHESTER CITY COUNCIL |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Ernest Ryder QC and Ms Yvonne Coppel (instructed by the City Solicitor, Susan Orrell) appeared on behalf of Manchester City Council
____________________
Crown Copyright ©
MR JUSTICE MUNBY:
The L children
The R children
The legal framework
Manchester's policy in relation to paying foster carers
Maintenance | Expenses | Total | |
1997 | £46.85 | £30.75 | £77.60 |
1998 | £48.26 | £31.67 | £79.93 |
1999 | £49.46 | £31.67 | £81.13 |
2000 | £52.75 | £31.67 | £84.42 |
In addition Manchester normally pays a birthday allowance, currently £25.22 per child, a Christmas allowance, £50.46 per child, and a holiday allowance, £138.75 per week per child.
"Given the various possibilities that could arise during the planning/sorting out period whilst a child is placed short term with a friend/relative, it is important to get the balance correct between adequately supporting the placement financially and not creating unnecessary financial dependency upon the Local Authority; raising financial expectations that cannot be maintained; or providing a disincentive for a friend/relative to apply for a Section Eight Residence order on financial grounds alone. It is also felt that during this period it would be beneficial to treat a child so placed by the local authority in a similar fashion to children in need living with friend/relative(s), not so placed by the local authority.
Therefore a discretionary sum of money will be made available for the relative/friend to contribute towards the cost of maintaining the child short term in the household as follows:-
(1) An initial sum of up to £500 per child during the placement. This will be at the discretion and approval of a Team Manager ...
(2) A further sum of £500 per child during the placement may be made available upon request ... to the Principal Manager for her/his approval ... to cover exceptional circumstances ...
The sums above are to be used as imaginatively as possible but it is recommended that regular weekly maintenance payments are not paid during this period for the reasons outlined above. This is not to say that the same equivalent amount of money (or more) cannot be used in supporting the placement; rather it is felt that until it is clear the Local Authority wishes the child to remain long term with the friend/relative(s) AND such a placement requires overseeing and monitoring by the Local Authority under an accommodation agreement or because the child is in Care and needs to remain so, then such weekly maintenance payments might militate against the best long term legal outcome for the child."
"Subsequent to an immediate/urgent or short term placement being made, reviews will be held of the child and its placement, within the statutory time limits ... Such reviews will identify what the long term plans for that child should be. It is envisaged that such a plan will most usually be formulated within six months of making the initial placement, and frequently much sooner."
Paragraph 7(8) makes clear that once a relative or friend has been approved as a long term foster carer he or she "will be eligible for the normal fostering allowances".
"Principle
Children and young people "looked after" who are placed with relatives or friends will be regarded as financially supported within the "Children in Need" framework. This means that the baseline for payments will be within the "Section 17" payments framework, and not the "Fostering allowances" framework ....
Payments
1 Where a carer requires financial support to maintain the child, the carer should make an Income Support claim if they are eligible to do so.
2 Where the carer is ineligible, or unsuccessful in that claim, the maximum payments ... will be the equivalent of Income Support level of a child of that age, per week.
3 The maximum payments per child per year is £1,500.
4 Approval of payments is: up to £750 by Team Manager; and a further £750 by Principal Manager ...
...
Child benefit
All carers are required to make a claim for Child Benefit; this is to be deducted from any weekly payments or the equivalent of weekly payments if in the form of irregular payments ...
Methods of payment
1 Regular payments may jeopardise the success of an Income Support claim, or the continuation of income support payments. Where practicable, therefore, "one off" payments or "irregular" payments should be made UNTIL the Income Support claim is processed, AND FOLLOWING a successful income support claim.
...
Practice Issues
Where a placement looks likely to extend beyond six months, reassessment as long term carers needs to be considered ...
FOOTNOTE - SECTION 17 BUDGET
The maximum payment per child per year under Section 17 budget is to be increased from £500 to £750 to provide parity with Relatives/Friends as Carers Budget."
Manchester's policy in context
19 The National Foster Care Association ("NFCA") has been publishing foster parent rates paid by all local authorities and its own national recommended rates since 1974 in its publication Foster Care Finance ("FCF"). The NFCA rates are based on the Family Expenditure Survey and Expenditure Home Scales which are published by the Government Office for National Statistics. The introduction to FCF states:
"The minimum allowances recommended by the Association are based on the Family Expenditure Survey and Expenditure Home Scales. They contain no element of reward for foster carers, and actually measure the average costs of caring for a child living in his or her own home. Living away from home for a child is an exceptional/unusual experience. It is important to recognise that additional costs are involved in fostering and this has been born out by the work of many local foster care associations (emphasis added)."
FCF also says this:
"Looking after children is expensive, looking after foster children especially so. Foster carers who have monitored their expenditure claim that foster children are at least 50% more expensive to look after than their own children ... Foster carers should receive adequate basic allowances so that they are not always coming to social workers "cap in hand" to ask for additional money."
"relevant foster care allowances and any additional allowances including birthday, religious festivals and holidays should be paid at the same rate as would be paid to carers recruited to the general fostering service".
NFCA Manchester
0-4 £92.82 0-7 £84.42
5-10 £115.29 8-10 £104.86
I have not been told what the 2001 rates are.
The application of Manchester's policy - the maternal grandparents
The application of Manchester's policy - C
"On 9.1.01 a final care order was made. Given that the question of whether there should be a residence order was to be reviewed after 6 months and therefore that this was not a permanent long term fostering arrangement, the policy which provides for full foster carer rates to be paid on a long term placement under a care order was not applicable. [C] therefore continues to receive £44 per week per child based on the assessment of her requirements."
"Once approved as long term foster carers, relatives and friends are supported by fostering allowances and other payments that are the same as those paid to stranger foster carers (paragraph 7(8) of the policy). This ... has not yet happened in the claim of [the R children] because [C] has not yet been approved as a long term foster carer for the two children. I do not believe, therefore, that paragraph 7 of the policy is relevant to these claims."
He relates this to what he says is Manchester's practice:
"Previous practice was that where a care court was involved it would usually be the case that approval did not take place until the care plan was formulated and approved by the Judge.
The existing practice is that prior to a final hearing in the care court, relative and friend carers who are to be long term foster carers of looked after children should be approved by the Permanence Panel (which is the successor in title to the Family Placement and Adoption Panels) as foster carers for the particular children they are to continue to care for. A final decision on the approval is then made by the Director after the contested proceedings are concluded or agreements are made between the Council and the parties to the proceedings with the approval of the judge. If the Council's care plan provides for a trial period on a care order as in the R [children] case, the Permanence Panel would not be asked to consider the approval of relatives as long term foster carers during the trial period."
"After placement C rethought her position and decided for good grounds that she and the children would be more secure if she looked after them under a Care Order. She asked for her application for Residence Orders (only necessary in the first place because of the Council's rejection of her as a foster carer) to be adjourned. The Council has always made it clear that it wanted her to move towards a Residence Order. For this reason the Council proposed at the final care hearing on 9th January 2001 that a final Care Order should not be made. It proposed that interim Care Orders should be made to cover the possibility that C would change her mind and agree to Residence Orders being made. The Court rejected the Council's proposal, made final Care Orders and dismissed C's applications."
The proceedings
"The Local Authority intends to change the Policy which is in issue.
a The policy complained of is being reviewed. Draft proposals are under consideration. It is anticipated that a new policy will be approved by the Council's executive and thereafter by the full council before a full hearing of this application could be heard.
b Contrary to the Claimant's assertion, it is the Local Authority's intention to provide for a principle of equality of treatment in respect of foster carer treatment, that is a new policy would remove any alleged differential between relative foster carers and others. It is intended that the new policy will provide a guaranteed basic rate of payment for all foster carers with uplifted payments which would be dependent on the factual circumstances of each case."
I must return to this matter in due course: see paragraphs [50]-[51] below.
The evidence
The evidence - the litigation friends
"As guardian ad litem in the care proceedings relating to the children I was gravely concerned about the approach which [Manchester] was taking to financial support for the [maternal grandparents'] household. The financial and other demands placed on the [maternal grandparents] were such that it was necessary in my considered view for them to receive the full fostering allowance of what I understand to be £77-60 until March 1998 and thereafter £79-93 per week per child so as to enable [the maternal grandparents] to devote all their time to caring for the children.
[Manchester's] decision caused a number of problems which in my view impacted adversely on the children's welfare. These were that throughout the care proceedings the majority of the costs relating to [the L children] was borne by [the maternal grandparents]. [The maternal grandfather] by that time was 68 and retired and [the maternal grandmother] was 61 and worked as a warden in a sheltered accommodation complex. [The maternal grandparents] lived in a tied property attached to that complex and [the maternal grandmother] had responsibility which included being 'on call' to the residents of that complex on a 24 hour basis. Consequently, a large proportion of the care responsibilities of the children fell to [the maternal grandfather]. The couple had their own private house in another part of Manchester and advised me that they would have liked to have considered [the maternal grandmother] retiring and returning there but needed her income to meet their own living costs and that of caring for three very young children whom they needed to clothe, feed and generally attend to all their needs. At the time [the maternal grandparents] were responsible for supervising all contact between the children and ... the children's parents [who] were unable to assist financially."
"From my own experience in the Manchester area I am aware of other family local authority foster carers and children placed with them who have been disadvantaged by the relevant policy. I have no doubt that it continues to have effect and will prejudice the position of significant number of people in future.
It is my view that many foster parents who are family members are likely to feel too apprehensive to challenge the Council which seeks to make it clear that it does not have to pay anything at all. I believe from my own extensive experience that the current financial arrangements maintained in Manchester to deal with these fostering allowances are a substantial disincentive to family members putting themselves forward to look after children who are in care or being accommodated. In this way the Council has significantly failed to apply itself to do all it can to make sure that children live with their own families wherever reasonably possible."
"In normal circumstances once a Care Order is made the foster parent who is the intended carer for the future is designated as a long term foster carer by the Council. Once this happens they would normally receive the "full" fostering rate regardless of status of £84.42 per week per child. In this case the Council has decided not to increase the payments and continues to treat C as a short term foster parent. The financial pressure applied by the payments of an inadequate fostering payment therefore continues even though C is now an approved foster carer for the foreseeable future and no one suggests that the children should live elsewhere. In my opinion therefore C has financial pressure applied to her to seek a Residence Order in preference to the existing Care Order by virtue of the existing arrangement. I believe that it is disadvantageous to the children that this should be so because it was the Courts view that the care orders would be in their best interests for the foreseeable future. I do not say that the children will starve without the extra payments but I do say that there is no sufficient reason why they should not get the benefit of the extra weekly payments, holiday payments, birthday and Christmas payments. C does not have the necessary financial resources to make up the extra sums."
"It is widely thought by those on the guardian ad litem panel that this policy is disadvantageous to children being looked after by related foster carers. It is generally considered by guardians who deal with [Manchester] in the context of care proceedings that the policy is a financial disincentive to family members putting themselves forward as potential local authority foster carers. The normal fostering payments are intended by [Manchester] to be a sum which is sufficient to provide a suitable level of care for foster children. It is no cheaper for family members to provide the level of care which is required under a Children Act 1989 Part III arrangement then it is for non family members."
And:
"I can think of no child related reason why a vulnerable child to whom [Manchester] has a statutory responsibility should lose financial support simply because the person who is selected as a carer has some family relationship with that child. [Manchester] should if possible seek a family member as foster carer and it is my opinion that the financial disincentive to any family members putting themselves forward makes a serious inroad into this obligation. It is requiring the child to do without because the family members may be prepared to react to a sense of moral obligation. The difference of opinion between guardians and the local authority has often been the subject of debate in Court proceedings and there have been occasions in which the unsatisfactory nature of the arrangements have been remarked upon by the circuit bench. Any lobbying by those on the guardian ad litem's panel to change the policy has had no effect."
And:
"I have no doubt that the policy is disadvantageous to children who could be looked after by members of their family under local authority fostering arrangements because it provides a disincentive to carers and to those who are so looked after because they are obliged to live under a lower standard of living."
The evidence - Mr Mason
"I know of no other documents that describe the policy or its application."
I return to this in paragraphs [63]-[67] below.
"Since 1997 the Council has been asked to review its payments policy. The Council has not ignored these requests but has endeavoured to reconsider the issues that are raised. Despite considerable internal discussion, the Council has not yet identified a substitute policy which avoids inappropriate disincentives, financial overstretch or breach of central Government imperatives while according with the Council's statutory duties. These discussion documents have not been adopted by the Council as policy and, therefore, I do not believe that they are relevant to these claims."
None of these documents have been produced for inspection. I am invited to draw the inference from this fact that a past recognition that the policy was unlawful is being hidden from the court. I have to say that I find Manchester's stance unhelpful, to use no stronger word, but it is neither necessary nor in my judgment would it be safe to draw such a damaging inference. Nor is there any basis for concluding that Manchester's attempt to construct a new policy was anything other than entirely genuine.
"There have been discussions relating to a new policy. Such a policy would have to be compliant with ECHR principles, the principles underlying the Act and central Government policy. It would also have to be feasible within the resource limitations of the Council.
An alternative system of baseline payments and discretionary allowances has been considered. The Council believes that such a policy would act as a financial disincentive to the carer who does well for the child's needs and whose payments / allowances are reduced in comparison with the carer who is not as able to met a child's needs and who would continue to be assessed as dealing with greater need justifying higher funding. It is precisely this type of level or banded funding that existed prior to the Children Act as 'boarding out payments' and which as I understand it was felt to be in need of reform when the policy was issued in 1992.
I am advised ... that the effect of equalising all foster care payments at the higher recommended rate by NFCA is between £1.25m and £1.5m. The total social services budget is £23.7m and £1.5m represents the equivalent of ceasing to employ 40% of the Council's field social workers."
Mr Mason provides no further detail as to the potential cost implications. It will be noted that his comparison is between Manchester's short term relative foster care rates and the NFCA rates: bringing the short term relative foster care rates into line with Manchester's normal rates (which are below NFCA rates) would of course cost less. The claimants also suggest that Mr Mason has not brought into account the savings which, they say, would follow from encouraging more families to be foster carers. I return to this in paragraphs [81]-[84] below.
"I believe that the Council's reasons for the differential payments policy ... were discussed at the time the policy was drafted in 1991/1992. They are:
a Relative and friends carers are not initially assessed and approved as foster carers by the panel and provide a short term service with the approval of a Principal Manager until they are approved by panel.
b Stranger foster carers are recruited to care for a range of children with particular needs who are not known to them, they undergo specific preparation and training for this task and once approved receive regular ongoing training.
c Stranger foster carers have to get to know and understand each child and incorporate them into a family together with other children who are themselves from different families and who are not / have not previously been known to each other.
d Recruitment availability and retention are not relevant issues for relatives and friends who are offering to provide care. They are known to the child and vice versa (usually) and they usually have an existing commitment to the child.
e Children placed with relative foster carers as short term carers are treated in the same way as children who are not looked after but who are likewise placed with relatives and are in need in the community.
f There is a distinction to be drawn between short term foster care provided by relative and friends carers for looked after children and the long term care of looked after children.
g A balance should be struck between adequate levels of financial support for relative foster carers and inappropriate financial dependency which would act as a disincentive to apply for a residence order and an incentive to permit continuing statutory intervention on the part of the Council which would be a disproportionate intervention.
With the creation of a commercial market for foster carers which began in 1996 / 1997, an additional reason for the policy became important, namely that the stranger foster care market is competitive and commercial and it is necessary to pay market rates to recruit and retain stranger foster carers.
The Council has always been of the view that it should encourage the relaxation of statutory controls that affect a child (statutory reviews, social work interventions and the umbrella of state control) by recommending the making of residence orders in appropriate cases. For the avoidance of doubt, it is important to note that children who cease to be looked after children may qualify for residence order allowances or children in need payments under section 17 of the Act.
I believe that the reasons set out above have continuing validity."
"It is clear that the 1992 policy and the 1997 guidelines are to an extent based upon the limited financial resources that constrain the exercise of the Council's duties and discretions. I believe that a local authority is entitled to balance the needs of all children looked after, the needs of the particular children concerned and the scarcity of its resources and that the balance undertaken by this Council is lawful and fair."
I shall return to this in due course: see paragraphs [81]-[84] below.
"The policy expressly provides for the possibility that more money may be needed to support the placement (4th line, page 153 of the manual under paragraph 6(10)). In addition to the maintenance sum paid as a fostering allowance, additional needs payments are made to meet identified needs of the particular child whether the need be a regular event or a specific provision. The additional needs payments are also made from relatives / friends as carers budget. Managers make these additional payments within their levels of authority.
Although the maintenance element of a fostering allowance may appear to be fixed within the financial limits set out in the policy, the additional discretionary payments that are made illustrate the flexibility of decision making in each case. A manager can also use a surplus in one budget to fund another budget, if he sees fit, to satisfy the needs of a child in a particular case.
At the review panel meeting held on the 8th December 1999 in relation to the complaint made by Mr Taylor on behalf of the TLL children I said that the level of payment made to a relative foster carer was considered on its merits in each case and that there is no blanket level of payment. I stand by this opinion because of the provisions of the policy and the practice of the Council in considering the requests of carers, guardians or the court to consider service provision and additional needs payments in addition to the maintenance element described in the policy."
The claimants' case
(1) A financial disincentive to family members being foster carers (thereby making it more difficult for family members to be foster carers than non family members).
(2) An attempt to utilise the sense of moral obligation of relatives of children in care so as to compel them to accept a grossly inadequate level of financial support (very much less than that which has been determined by Manchester to be necessary for the maintenance and support of other foster children of like age and similarly less than the sum which will be paid if long term approval is given).
(3) An attempt to apply financial pressure to family members to move away from local authority support, thereby creating a financial "under class" of children who do not get the level of support which a rational policy would provide and whose foster parents will be under financial pressure to go out to work.
(4) A discriminatory policy which is fashioned on the basis of family relationship (an "other status" within the meaning of Article 14 of the Convention).
(5) A failure to provide adequate implementation of the central obligations of Manchester (a public authority within section 6 of the Human Rights Act 1998) to promote the right to respect for family life guaranteed by Article 8 of the Convention.
(6) An attempt to transfer the financial burden of looked after children away from the local authority.
(7) An abuse of the dominant position held by the local authority in relation to foster parents and children who have no "bargaining power".
The issues
A preliminary point
"1 This one issue was left outstanding after the close of argument in this case. It arose initially because in Mr Glen Mason's statement for [Manchester] he expressed the belief at paragraph 4 that the relevant policy decisions had been made at directorate level. The litigation friends required production of the delegation scheme operated by [Manchester] without which they did not accept that the decision had been made under effective delegated authority.
2 [Manchester]'s delegation scheme to Directorate level has been disclosed and considered by both parties legal advisers. It contains no reference to a scheme for delegation of this type of decision to officer level.
3 Had there been such a scheme [Manchester] could have lawfully delegated authority to act pursuant to section 101 Local Government Act 1972. Since there is no such scheme [Manchester] cannot effectively rely on the 1992 policy and the 1997 guidelines to limit payments to a level which is less than that of normal foster parents. [Manchester] cannot however lawfully reclaim sums paid in the past given the fact that payments were made under ostensible authority and [Manchester] is in any event estopped from doing so.
4 To save its decisions [Manchester] has to either
(a) make fresh decisions at social services committee level, or
(b) ratify the past decisions at social services committee level.
(Section 2 of the Local Authority Social Services Act 1970 requires social services authorities to delegate functions under Schedule 1 (including Children Act functions) to their social services committee).
5 To make either decision 4(a) or 4(b) without awaiting the Court's decision on the propriety of the past decisions would given the issues in play in this case be irregular and liable to challenge. [Manchester] will therefore defer its decision as to what is to be done until the Court has given its judgement.
6 If the Court upholds [Manchester's] past decisions it is likely that [it] will wish to ratify its past decisions although it may be required to receive representations from interested parties (such as the litigation friends) as to whether this is the right course and as to what should be taken into account.
7 If the Court does not uphold [Manchester's] past decisions then any fresh decisions on the relevant fostering allowances will have to be carried out in accordance with the findings of the Court. Interested parties such as the litigation friends may also wish to make representations.
8 In the circumstances, the Court findings on the matters at issue between the parties remains crucial to the resolution of their dispute and the question of whether the policy is lawful as at presently formulated.
9 The delegation issue therefore does not alter the fact that the main purpose of the judicial review is to settle the issue of principle about the legality of Manchester's and other similar policies."
The central issue
(1) It must be formulated and implemented so that it can be exercised flexibly.
(2) It must be formulated and exercised according to the needs of the children concerned and having regard to its advantages and disadvantages in the individual case.
(3) It must be exercised without reliance on irrelevant considerations.
(4) It must be formulated and exercised without disregard of relevant principles.
(5) It must not be exercised in a perverse manner.
(6) It must be formulated and exercised in the light of the aim of the statutory framework within which it is comprised.
(7) It must not be formulated or exercised so as to conflict with any duties within that framework.
(8) It must be formulated and exercised so as to adequately safeguard the right to respect for family life guaranteed by Article 8 of the Convention and so as to avoid discrimination in breach of Article 14.
(8) Has it fettered its discretion so as to prevent itself from acting flexibly?
(9) Has it exercised its discretion according to the needs of the children concerned and having regard to its advantages and disadvantages in the individual case?
(10) Has it exercised its discretion without reliance on irrelevant considerations?
(11) Has it exercised its discretion without disregard of relevant principles?
(12) Has it exercised its discretion in a perverse manner?
(13) Has it exercised its discretion in legitimate pursuit of the statutory framework within which it is comprised?
(7) Has it exercised its discretion so as to conflict with any duties within that framework?
(8) Has it exercised its discretion so as to adequately safeguard and promote the right to respect for family life guaranteed by Article 8 of the Convention and so as to avoid discrimination to the children and families in breach of Article 14?
I shall deal separately with the Convention issues which arise in relation to question (8): see paragraphs [88]-[98] below.
+ was separate and different from that for non-relative foster carers and maintained a wholly different financial structure
+ imposed an arbitrary cash limit on the sum to be paid and prevented any discretionary payments beyond the cash limit (payments to non-relative foster carers were not subject to an absolute cash limit)
+ did not reflect any welfare based analysis of the financial needs created by the placement
+ operated so as to discourage family members from being foster carers.
(a) The policy as published in 1992 and revised by the 1997 guidelines excludes any flexibility to allow payment of the normal fostering allowance to relative foster carers in appropriate cases. There is no discretion to exceed the cash limit. The policy does not permit the needs of the children concerned to be properly taken into account. It does not recognise that there will be cases where the needs of a child or the finances of the family may require a higher payment nor that in certain circumstances the cash ceiling will not be feasible. The policy is totally different from that for other foster carers. The imposition of a cash limit is a classic example of inflexibility in practice.
(b) The financial levels set by the policy are set so low, particularly given the NFCA recommended rates, as to make it inevitable that there will be conflict with the welfare principle, or at least a much greater likelihood of such conflict than in the case of normal allowances. Since the amounts are set at a rate which would be lower that the minimum for non-relative fostering there are bound to be significant numbers of placements in which they do not provide enough money to provide sufficient maintenance. The statutory framework focuses on the welfare of the child. Manchester, while permitted on normal local government principles to avoid profligate expenditure, is neither encouraged nor permitted to take any approach which puts the welfare of the child in question at the bottom of the statutory factors. The tension between child welfare and the financial aims of the policy are so great as to make it clear that welfare has little, if any, effect. The discretion as to payment which is given by section 23(2)(a) of the Act can only be read so as to be at a level which is appropriate to promote the section 22(3)(a) duty.
(c) The great difference of fostering rates as between relative and non-relative foster carers, short term relative carers and long term relative carers, and between the Manchester short term rates and national rates for doing the same job demonstrates perversity.
(d) There are no age uplifts for relative foster carers - so the disparity with other foster carers increases with the child's age. The absence of a sliding scale shows that the policy is not about the child's needs and hence that it is irrational.
(e) The policy is not just cash-limited but also time-limited. Although the policy focuses on what is to happen after the short term placement has ended, at the initial stage the immediate effect is to give the family insufficient money. The policy does not recognise that there will be cases where the cash ceiling is simply not feasible at the point of initial placement and not just long-term. Moreover, the concept that it is beneficial to treat children as though they were not placed by the authority sets up as a benefit something which is illusory since there is no alteration to the child's living arrangements after the change of status.
(f) The references to "unnecessary financial dependency" and "raising financial expectations that cannot be maintained" in the 1992 policy document obscure the fact that "financial dependency" is another way of describing financial need, that is, the child's need and the amount that the foster carer needs to meet the cost of maintaining the child as quantified by the NFCA rates. How, says Mr McCarthy, can the cost of such maintenance sensibly be described as "unnecessary"? They demonstrate error and irrationality on Manchester's part and show Manchester taking into account extraneous and irrelevant matters. Since financial dependency is not treated as being "unnecessary" in the case of non-relative foster carers, the label "unnecessary" must relate to something other than the child's needs - and hence to something extraneous and irrelevant. Irrationally, the policy is not thought to be relevant after approval of a relative as a long term foster carer, even though the same considerations of dependence continue to apply. Furthermore, it is irrational to increase the relative foster care rate at the very point when the relative becomes a long-term carer and thus when there is an enhanced likelihood of the relative sooner or later applying for a section 8 order: rationally there is less rather than more reason to increase the rate at this point.
(g) There is no evidence that the disadvantages to the children of the financial limit and the impact on their needs was a factor taken into account in formulating the policy. A rational policy must identify the discrepancy and give adequate reasons for nonetheless perpetuating it. There is no evidence that Manchester took account of prevailing trends (eg, the NFCA recommended rates) in its decisions. Section 22(4) of the Act sets out matters which the local authority shall take into account in making decisions in relation to looked after children. These were not taken into account by Manchester in the making of the fostering allowance decisions.
(h) The baseline approach that family members should be treated differently as a matter of principle is irrational. In relation to both the relative foster carer and the non-relative foster carer the route into foster care and the applicable legal framework are the same - so Manchester's obligations should be the same in relation to both. The fact that the future care outcome may be different (a section 8 order as against long-term foster care) cannot justify the policy: one cannot justify present and actual discrimination by some future and contingent distinction.
(i) Moreover this approach clearly envisages a situation in which Manchester may force a relative into a 'trade off' between the amount of money they need to keep the child in a suitable manner and a moral commitment to the child. It allows Manchester to engage in an unprincipled approach to its own statutory responsibilities under Part III of the Act. This approach is not consistent with any published guidance. In fact it is inconsistent with the statutory scheme.
(j) The policy as formulated is informed by an attempt to manipulate the approach of the family member. In particular Manchester's main attempt is to ensure that to continue fostering the child is not financially worth while. The concept of over dependence on the allowance is to be seen as an irrelevant consideration once it is seen that it does not apply to other foster carers. The policy is exercised for extraneous purposes, that is, to force the family to a position where the family cannot afford to look after the child under Manchester's scheme.
(a) Paragraphs 3(1), 3(2) and 4(2) of the 1992 policy document show that, in circumstances where it would not be reasonably practicable or consistent with the child's welfare to place a looked after child with a parent, Manchester will endeavour to place the child with a relative, a friend or another person connected with him in accordance with the duties set out in sections 23(2) and 23(6) of the Act.
(b) The nub of the issue concerns the reasons set out at paragraph 6(10) of the policy, namely, (1) whether "it is important to get the balance correct between adequately supporting the placement financially and not creating unnecessary financial dependency upon the local authority; raising financial expectations that cannot be maintained; or providing a disincentive for a ?relative to apply for a section eight residence order on financial grounds alone" and (2) whether "it is beneficial to treat a child so placed by the local authority in a similar fashion to children in need living with friends / relatives, not so placed by the local authority". It is reasonable to pursue a policy which encourages the relaxation of statutory controls that affect a child (statutory reviews, social work interventions and the umbrella of state control) by the making of residence orders in appropriate cases and which guards against disproportionate intervention.
(c) It is not unreasonable to expect carers who may be able to claim from central funds to do so before claiming against Manchester.
(d) Mr Mason's evidence is that flexibility is provided for in the policy and that in implementing the policy Manchester is flexible and responds properly to the needs of the individual child, having regard to the statutory framework of the Act. There is not a blanket inflexible policy - if there was it would be bad. The evidence is that additional payments are made; these, says Mr Ryder, will cover the very items which are paid for by weekly allowances once a placement becomes long term. He points, for example, to what he says were the "very significant" additional payments made to the maternal grandparents and to the difference between the baseline payments and additional payments made from the same budget and, indeed, to the fact that C was paid initially £42.75 and then £44 per week per child, amounts substantially in excess of the maximum of £1,500 laid down in the 1997 guidelines. So, the policy does not fail to meet the needs of the individual child.
(e) Any difference in treatment as between relative and stranger foster carers is not discriminatory as respects either the carers or the children concerned.
(f) Much of the litigation friends' evidence is anecdotal. There is no real evidence, only anecdotal opinion from the litigation friends, to the effect that Manchester's policy discourages relatives from agreeing to be foster carers for looked after children. After all, Mr Ryder observes, it did not discourage either the maternal grandparents or C. Likewise, there is no evidence that the policy in its implementation tends to act contrary to the statutory scheme or to Manchester's general or specific duties under the same.
(g) There is no evidence of manipulation of the short and long term approval mechanisms for financial reasons. Applying the well-established 'twin track planning' jurisprudence, the care court expects the long term proposals contained in care plans to have been scrutinised by Manchester. That process is undertaken through an advisory panel and placement decisions are made by the Director. The court process of assessment, determination and approval of care plans is under the control of the care judge not Manchester.
(h) Manchester's policy and the agreements made with relative foster carers under the Regulations are not a reflection of some improper use of Manchester's alleged bargaining power. Every local authority should want to place looked after children in their extended families wherever possible; there is no issue that subject to individual circumstances this is qualitatively better for the children concerned. There is no purpose to providing a financial disincentive to relative foster carers as the children concerned would then have to be cared for in potentially less ideal placements that may only be available to Manchester at long term fostering allowance or even at commercial rates above Manchester's long term fostering rates.
(i) On the contrary, an alternative system of baseline payments and discretionary allowances would act as a financial disincentive to the carer who does well for the child's needs and whose payments or allowances are reduced in comparison with the carer who is not as able to meet a child's needs and who would continue to be assessed as dealing with greater need requiring or justifying greater funding.
(1) First, the policy imposes an arbitrary and inflexible cash limit on the amounts that can be paid to relative foster-carers. I have of course considered very carefully Mr Ryder's submission (see paragraphs [56] and [74(d)] above) that the policy is in fact flexible. But at the end of the day the essential facts remain, as Mr McCarthy submitted, (i) that the policy, at least as amended in 1997, quite clearly on its face provides for a maximum payment of £1,500 per annum, (ii) that Manchester has been able to point only to isolated examples of cases where the policy ceiling has in fact been breached (and, I might add, has been wholly unable to explain how it comes about that, despite the terms of the 1997 guidelines, the policy ceiling has been breached) and (iii) that even in those cases which Manchester is able to rely upon as suggesting some degree of flexibility none of the additional payments it is able to point to goes anywhere near bridging the yawning gap between Manchester's short term relative foster care payments and its normal rates.
(2) Secondly, the policy fixes the level of payments to relative foster carers so low as to make it inevitable in my judgment that there will be a conflict with the welfare principle and thus with Manchester's statutory duty, in particular its duty under section 22(3)(a) of the Act. Mr Taylor's evidence in relation to the impact of Manchester's policy on the maternal grandparents (the relevant parts of which I have set out in paragraph [44] above and which has to be read in the context of the facts summarised in paragraphs [23]-[24] above) vividly illustrates, as it seems to me, how that policy, even when correctly applied in accordance with its own terms, quite manifestly fails to meet the welfare requirements of children whose welfare it is Manchester's statutory duty under section 22(3)(a) of the Act to "safeguard and promote".
(3) Thirdly, and having regard to the combined effect of a number of different elements in the policy as analysed by Mr McCarthy (see paragraphs [22], [24], [72(c)]-[72(f)] and [72(h)] above), I am satisfied that the policy is in the 'Wednesbury' sense irrational.
(4) Finally, it is apparent that the policy, in effect if not in intention, is fundamentally discriminatory, discriminating against both those short term foster carers who are relatives and those children in care who are fostered short term by relatives rather than by non-relatives.
None of these objections, in my judgment, is met merely by pointing to the legitimacy of the objective that Manchester was seeking to pursue. Additionally there is, I think, some plausibility in Mr McCarthy's contention (see paragraphs [72(g)] and [73] above) that Manchester failed to consider and take into account certain material factors when it was formulating the policy.
Resources
Policy factors
Central government policy
The Convention
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Article 14 provides as follows:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
+ the functions and obligations of relative and friend foster carers are very different from stranger foster carers: they do not take into their care unknown children of disparate backgrounds and complex needs, they are not available for use as carers for other children who need to be fostered, and they are only approved for the specific children they volunteer to care for
+ in the short term before approval of a long term placement, relative carers should not become unnecessarily dependent upon a local authority whose statutory intervention may neither be required nor be appropriate as a proportionate response to the child's needs, nor should there be a financial disincentive to apply for a section 8 order
+ it is beneficial to treat such a child placed by the local authority in a similar fashion to children in need living with friends or relatives who are not so placed by the local authority
+ any difference in treatment is theoretical and not necessarily an adverse treatment in fact and in any event it is justifiable and proportionate.
Damages
C's claim
Order
(1) It will pay the sum of £11,088.70 to and for the benefit of the L children subject to the completion of an agreement between the parties (the terms of which have been agreed)
(2) It will pay the sum of £4,361.55 to and for the benefit of the R children subject to the completion of an agreement between the parties (the terms of which have been agreed)
(3) It will forthwith take steps to ensure that C the foster carer of the R children is approved as a long term foster carer.
1. It is declared that:
(1) The Defendants continuing policy between 1992 and to date by which it pays related foster carers lower fostering allowances that non related carers is unlawful.
(2) The Defendants decisions between 28 November 1997 and 8 January 1999 to pay fostering allowances for the L children at a lower rate than non related foster children were unlawful.
(3) The Defendants decisions from 17 September 2000 and continuing to date to pay fostering allowances for the R children at a lower rate than non related foster children were and are unlawful.
2. It is ordered that:
(1) The Defendants decisions to pay fostering allowances in relation to the L children between 28 November 1997 and 8 January 1999 shall be quashed and redetermined in accordance with the findings of the Court.
(2) The Defendant's decisions to pay fostering allowances in relation to the care of the R children between 17 September 2000 and continuing shall be quashed and redetermined in accordance with the findings of the Court.
(3) The claim for damages in the L and R cases shall be stayed on terms which have been agreed between the parties
(4) 2 (1) and 2(2) are subject to the proviso that there shall be no requirement for the Defendant to redetermine in the event that the Defendants pay the sums described in undertakings (1) and (2) above.
(5) The Claimants costs in each application shall be subject of detailed public funding assessment
(6) The Defendants shall pay the Claimants in each application the costs of both applications (to include reserved costs from the permission hearing) and to include costs incurred by the litigation friends to be assessed if not agreed..
MR JUSTICE MUNBY: These are judicial review proceedings putting in issue the legality of Manchester City Council's policy under which it pays short-term foster carers who are friends or relatives of the fostered child at a different and very significantly lower rate than it pays other foster carers.
For the reasons set out in a judgment, a draft of which has already been sent to the parties and copies of which will be available in a moment to anybody who is interested, I have decided that that policy is unlawful. In addition, it breaches both Article 8 and Article 14 of the European Convention, and that accordingly the policy and various decisions taken consequential upon that policy shall all be quashed.
MR McCARTHY: My Lord, the parties have come to terms on the form of order which is appropriate. My learned friend Ms Budaly acts for Manchester City Council. She was just checking with Mr Ryder who was previously instructed. I wonder if I could just have a moment?
MR JUSTICE MUNBY: Yes, of course. (Pause)
MR McCARTHY: My Lord, there is one minor variation. May I start with the variation first? If you go to the last sub-paragraph 2(6), the reference to the costs of the litigation friends, the amendment which is agreed and proposed is the word "properly" should be taken out.
MR JUSTICE MUNBY: Yes.
MR McCARTHY: And that to the end of the sentence after the words "friends" there should appear the words "to be assessed if not agreed".
MR JUSTICE MUNBY: Yes.
MR McCARTHY: My Lord, it has been agreed between the parties that Manchester City Council will give certain undertakings which bring, if you like, the cutting edge of this dispute to an end. They undertake to pay what are the sums which amount to the deficiency between the normal fostering rate and the fostering rate which they paid these families. In relation to the L children, that means they have undertaken to pay the sum of £11,088.70 to and for the benefit of the children, subject to the completion of an agreement between the parties, the terms of which have been agreed. My Lord, we think, for various reasons, unnecessary to trouble your Lordship as to the terms of that agreement. It has been put in writing. Both of us have seen it this morning. It has been discussed between both sides and I anticipate, subject to further discussions, that agreement will actually be signed within the next week.
In relation to the R children, the deficiency is £4,361.55, so the same payment is to be made. Very importantly, my Lord, following on your Lordship's paragraphs 100-101 Manchester are going to approve C----
MR JUSTICE MUNBY: Sorry, I just want to move on. Undertaking number 2 contains the word "main" qualifying the word "terms" which does not appear in paragraph 1. Is that intentional?
MR McCARTHY: No, I thank you for pointing that out. That is part of an earlier draft.
MR JUSTICE MUNBY: Delete the word "main".
MR McCARTHY: I will have the alterations - I have got this on disc in chambers, I will have produced it to court. Thank you very much for pointing that out.
Number 3 is important, it follows on from your Lordship's 100-101 paragraphs. C will now in the very near future be approved as a long-term foster parent which will bring these shenanigans to an end as far as she is concerned.
My Lord, there are then declarations relating to the policies in general and the policies as they apply in relation to the two sets of children.
MR JUSTICE MUNBY: Yes.
MR McCARTHY: They are the declarations. Then the orders quashing the decisions might have been unnecessary had the agreement which we anticipate in the undertakings already been completed. But it has not, so we need to protect our position.
MR JUSTICE MUNBY: That is why paragraph 2(4) is in.
MR McCARTHY: Therefore, although they will be quashed, as long as this agreement is concluded and the money is paid over there will be no need for redetermination in these cases. Of course Manchester are going to have to step back and look at their policy as a whole, but that is, essentially, not a matter for the claimants.
MR JUSTICE MUNBY: As I understand it, the effect of this is that so far as concerns these particular claimants and these families, once this agreement is implemented and this payment is made that will retrospectively put these children in the position which they should have been in.
MR McCARTHY: Absolutely.
MR JUSTICE MUNBY: So that there will be no need for any further proceedings. So in particular the further proceedings for damages under the Human Rights Act, which I refer to in my judgment, are being stayed.
MR McCARTHY: Absolutely, my Lord. It would mean henceforth they would be in the financial position which we say they should have been in the first place.
Then, my Lord, there are consequential costs orders at the end.
MR JUSTICE MUNBY: That seems a wholly admirable, if I may say so, it seems to me to be very proper that Manchester should so promptly have agreed to give effect to not merely the letter but also the spirit of my judgment and should have come so promptly to what appears to be a wholly appropriate conclusion in relation to financial compensation.
MR McCARTHY: Discussions started quite a long time ago.
MR JUSTICE MUNBY: So far as concerns those figures, I merely make this observation: the £11,000 figure in relation to the L children is referred to in my judgment, although as I made the point nobody has ever explained how it is arrived at. I think I am right in saying the £4,000 figure in relation to the R children is novel, as far as I am concerned. Again, I have no information as to how it is arrived at, I do not require to know. But since they are parts of undertakings and on the basis that these two very dedicated and conscientious litigation friends are satisfied those are the appropriate figures, I accept that without further exploration.
Well thank you very much indeed.
Subject to the deletion in undertaking 2 of the word "main", and those slight alterations to paragraph 2(6), I will make an order in those terms.
MR McCARTHY: My Lord.
MR JUSTICE MUNBY: That is all agreed, Ms Budaly, is it?
MS BUDALY: My Lord, yes.
MR JUSTICE MUNBY: Thank you very much.
I think, Mr McCarthy, you are spared the burden of taking away four of these files because the office will want to keep them.
MR McCARTHY: Since I fell down some stairs moving furniture yesterday afternoon, I am heartily delighted to hear it.
MR JUSTICE MUNBY: There is a large file which I am afraid represents my reorganisation of authorities by both you and Mr Ryder.
Thank you very much indeed.