X, R (on the application of) v London Borough of Tower Hamlets

Statutory guidance requiring equal treatment of family-and-friends foster carers and unrelated foster carers must ordinarily be followed. A local authority may depart from it only for cogent reasons, with more compelling justification required for a substantial departure.

A differential in fees or allowances based solely on the carer’s pre-existing relationship with the child conflicts with guidance directed to equal treatment. A need to recruit unrelated foster carers may justify criteria genuinely connected with fostering, such as qualifications, but does not itself justify excluding family carers from meeting those criteria.

X was an approved foster carer for three relatives with substantial care needs. The London Borough of Tower Hamlets paid her less than an unrelated foster carer would receive for the same children, including by withholding fostering fees and the reward element of a disability-related payment.

Males J held that the Council’s policies were unlawful insofar as they differentiated according to the pre-existing relationship with the child: [2013] EWHC 480 (Admin). The Council appealed. The central issues were whether its policies departed from statutory guidance and, if so, whether cogent reasons justified that departure.

1. Appeal dismissed. The court upheld the declaration that the Council’s policies were unlawful insofar as they differentiated between family and unrelated foster carers because of the pre-existing relationship with the child.

2. The relevant statutory guidance remained guidance even though parts used the word must. Read as a whole, it contemplated compliance subject to cogent reasons for variation. The existence of a discretionary order-making power under the Children Act 2004 did not remove or curtail the Secretary of State’s pre-existing power to issue such guidance.

3. The guidance, read as a whole, required that family carers should not receive lower allowances or fees than unrelated carers merely because they were relatives or friends. The Council had therefore departed from it. The earlier Manchester decision was materially more extreme in its maintenance-allowance facts, but the present claim depended on later statutory guidance rather than on a free-standing common-law discrimination ground.

4. A departure could in principle be justified by cogent reasons objectively established in litigation, even if the authority had not consciously identified those reasons when adopting the policy. But the Council had not established them. The statutory preference for family-and-friends placements under the Children Act 1989 was reinforced by equal-treatment guidance. Recruitment needs might support genuinely relevant fee criteria, including qualifications which family carers could seek to meet, but not a blanket differential based solely on the absence of a pre-existing relationship.

5. The court extended the time for the Council to reconsider its policies. It did not determine the alternative claim under articles 8 and 14 of the Convention.

• Court of Appeal (Civil Division) — dismissed the Council’s appeal and upheld the declaration of unlawfulness: [2013] EWCA Civ 904.
• Administrative Court (Males J) — declared the Council’s fostering policies unlawful to the extent that they differentiated between family and unrelated foster carers by reference to the pre-existing relationship with the child: [2013] EWHC 480 (Admin).