B v London Borough of Lewisham & Anor

A local authority’s special guardianship financial-support scheme must comply substantially with the statutory regulations and relevant guidance. Where the guidance requires the authority to have regard to fostering allowances, those allowances must inform the assessment as a meaningful reference point. They cannot be treated merely as an upper limit and then replaced by a substantially lower adoption-based scheme. The authority may make appropriate adjustments for differences between fostering and special guardianship, and special guardians are not automatically entitled to remuneration. However, it must not devise a scheme that frustrates the purpose of financial support, imposes a significant financial disadvantage on one placement option, or makes an otherwise suitable placement financially unworkable.

The claimant, a grandmother and special guardian, sought judicial review of the defendant local authority’s decision concerning her financial support and of its Special Guardianship Allowance Scheme. The scheme linked special guardianship payments to adoption allowances rather than fostering allowances. The claimant argued that this failed to comply with the Special Guardianship Regulations 2005 and the Special Guardianship Guidance, and frustrated the legislative purpose of securing suitable placements despite financial obstacles.

The court also considered, but did not determine, arguments under Articles 8 and 14 of the European Convention on Human Rights.

1. The claim succeeded. The local authority’s Special Guardianship Allowance Scheme was unlawful and was quashed.
2. Regulation 6 of the Special Guardianship Regulations 2005 shows that financial support is intended to facilitate and maintain special guardianship arrangements where support is necessary to enable the special guardian to care for the child, and to prevent financial obstacles from defeating suitable arrangements.
3. Paragraph 65 of the Special Guardianship Guidance requires the local authority to have regard to the fostering allowance that would have been payable. The core fostering allowance, together with any relevant enhancement for the child, forms the maximum payment which the authority may consider paying and provides the proper base for any means test. It is not merely a ceiling which may be disregarded in favour of a wholly different and substantially lower payment structure.
4. The guidance does not have statutory force, but the authority was required substantially to follow it under section 7 of the Local Authority Social Services Act 1970, absent good reason to depart. No sufficient justification for the radical departure was shown. The authority had failed to understand the central importance of fostering allowances and had instead made a rigid link with adoption allowances.
5. The authority could take account of differences between fostering and special guardianship, including expenses connected with supervision of foster placements. It could also make appropriate adjustments to the precise rate and was not required to introduce remuneration for special guardians. Those considerations did not permit it to disregard fostering allowances altogether.
6. The legislative scheme did not require identical financial support for every form of alternative care. Nevertheless, the authority could not operate a scheme which failed to meet regulation 6, imposed a significant financial disadvantage on special guardianship compared with other placements, or placed such financial strain on a carer that an otherwise appropriate placement became impracticable.
7. The Articles 8 and 14 arguments were unnecessary to decide because the scheme was unlawful on domestic-law grounds.