Barrett v Kirklees Metropolitan Council

A local authority must have regard to fostering allowance when determining special guardianship order allowance under paragraph 65 of the Special Guardianship Guidance. It may depart from that guidance on admissible grounds, but must not take a substantially different course without sufficiently powerful justification. The greater the departure, the stronger the reasons required. A general policy fixing allowance at two-thirds of core fostering allowance was unlawful where its stated rationale was largely irrelevant and failed to address the cost of caring for children placed with special guardians. Benefits available to an individual guardian are relevant when assessing that person’s allowance, but cannot justify a generally applicable ceiling at the policy-setting stage.

Mrs Barrett was the special guardian of her grandson, who had previously been subject to care proceedings and foster placement. Kirklees Metropolitan Council paid special guardianship order allowance at two-thirds of the core fostering allowance, with particular treatment of child benefit and means-tested benefits. Mrs Barrett challenged both the original decision and the council’s February 2007 policy by judicial review.

The central issues were whether the policy substantially departed from paragraph 65 of the Special Guardianship Guidance and, if so, whether Kirklees had provided sufficient lawful justification for that departure.

1. Claim allowed. The decision taken in March 2006 and the policy adopted in February 2007 were unlawful. Kirklees was required to make appropriate declarations, carry out a fresh assessment of the allowance payable since 17 March 2006, and pay any resulting sums.
2. Paragraph 65 of the Special Guardianship Guidance required Kirklees to have regard to the fostering allowance that would have been payable if the child had been fostered. Under Local Authority Social Services Act 1970, section 7, the authority had to follow the guidance unless it had admissible grounds for deviation, and it could not take a substantially different course.
3. The policy represented a substantial departure because it normally provided only two-thirds of core fostering allowance. The court was not entitled to substitute its own view for the council’s discretionary judgment, but the substantial departure required proportionately powerful reasons.
4. The eight reasons advanced by Kirklees did not provide sufficient justification. Several were general or irrelevant. The reasons concerning foster carers’ formal duties, child benefit, other benefits and court scrutiny failed to explain why a special guardian should receive materially less for the basic cost of maintaining the child.
5. The argument that two-thirds of fostering allowance represented the cost of raising a birth child did not save the policy. It had not informed the council’s decisions, was unsupported by the guidance, and failed to account for children whose needs made the cost of special guardianship comparable to foster care.
6. Under regulation 13(2) of the Special Guardianship Regulations 2005, other benefits and resources available to a particular guardian were relevant to the individual assessment of financial support. They could not justify fixing the general policy ceiling at stage 1, before the circumstances of the individual guardian were considered.
7. The alternative arguments under articles 8 and 14 of the Convention were not necessary to decide the claim. The court observed that they would probably not have succeeded on the figures in this case.