In what appears to be an as yet un-published judgment (which we hope will be published in due course, but if we have made a mistake, please do tell us), the Court of Appeal have upheld a foster carer’s case against a local authority which refused to pay her the same amount as a non-relative would be paid, to care for her nephews and her niece.

The claimant foster carer applied for judicial review of the local authority’s payment policies and was granted the review, with the judge agreeing that the policies were unlawful. 

The Court of Appeal held that the local authority’s policies and subsequent actions were unlawful based on the fact of discrimination as between related and non-related carers.

The local authority’s appeal was therefore dismissed.

We have not researched this area, but we were fascinated by this case and wondered how many LA’s out there are discriminating in this way. Is it a large-scale nationwide phenomenon, or an isolated incident? Given that Tower Hamlets is a large borough, we have a feeling others may be doing the same.

What this case does illustrate however, is just how malevolent fostering policy can become. The discrepancy in pay looks to us at least, to be playing on the sentiment that foster carers who are related to the children they care for are less likely to object to being paid lesser sums because of the emotional pull in the situation; an already existing attachment and, arguably, a sense of duty. An economic calculation by government, no doubt, but one with a chilling consequence for children in care. In this case at least, the policy appears to be geared towards the notion that payment is assessed by looking at different classes of carers. And here we must be careful, because we are not even talking about distinctions based on ability or qualifications; if we were, one could argue that those carers who are related to the children being cared for should be paid more – precisely because they are more likely to understand these children better and could potentially offer more tailored support for those children.

But shouldn’t payment be assessed on the individual needs of each child, rather than a terribly apartheid-like class system of carers, if we must focus on money in foster care, which in the real world undoubtedly we must, as children require caring in a material sense, too? This of course, does already happen in practice, but a more efficient system would require a much more sophisticated assessment process, and one which could go horribly wrong, in the wrong hands. Still, we need to shift the focus away from offensive divisions like the one this case highlights.

(Notification of this decision was published in the brilliant Appeal Tracker service by LexisPSL).