Huddersfield Solicitors

Nigel Priestley, Ridley and Hall Solicitors Huddersfield

After a 4 year battle, a Huddersfield’s Grandmother’s court action has smashed a key Kirklees policy for financial support of kinship carers. His Honour Judge Langan QC sitting in the Administrative Court in Leeds has today ruled Kirklees Special Guardianship allowance policy illegal.

This has a direct impact on all current and future carers with Special Guardianship Orders.

The background (The parties names cannot be identified)

Mrs B is aged 63 years. She has no private means and receives pension credit. L was born on 16 August 2002 and is Mrs B’s grandson. The Social Services Department of Kirklees became involved with L, following concerns about the ability of his mother to look after him. In May 2005 L was assessed as a child in need. In June 2005 he was registered under the category of emotional abuse. In the same month, L’s mother was compulsorily detained under the mental health legislation. L was then placed with foster carers, care proceedings were issued, and Kirklees obtained an interim care order. L was placed with his grandmother under a Special Guardianship Order. There was a 3 year Supervision Order due to the mother’s conduct at contact. The Child has very challenging behaviour.

What is special guardianship?

In December 2005, the Adoption and Children Act 2002 introduced special guardianship to provide legal permanence for those children for whom adoption is not appropriate. It gives the carer responsibility for all aspects of caring for a child, who will no longer be looked after by the local authority. It is meant to help build a permanent relationship between child and carer and be legally secure but will also preserve a basic link between a child and their birth family. Special guardianship will also be accompanied by a range of support services, including financial support.

Why was it introduced?

The Prime Minister’s review of adoption published in 2000, found children generally preferred the security that adoption gave them over long-term fostering. But it suggested there were older children who did not want to make the legal break with their birth family associated with adoption. It identified the need for an alternative legal status that offered greater security without complete severance from the birth family. However many local authorities across the country are encouraging Kinship carers to apply for an SGO – whatever the age of the child. This was the first Special Guardianship order in Kirklees.

Financial Support

The core element of the fostering allowance which Kirklees would pay if L were with foster carers would be £142.49 a week. The SGOA is set at two-thirds of that rate, so that Mrs B gets £94.99 a week. Whilst child benefit is not payable to foster carers, it is payable to those on Income Support and Pension credit. Mrs B and, because she is in receipt of pension credit, no corresponding deduction is made from her SGOA. Accordingly, Mrs B receives for L £114.99 a week, which is 80.7 per cent of the core fostering allowance.

The judge said “I have come to the conclusion that the submissions which have been advanced on behalf of Mrs B are right. Kirklees’ decision of March 2006, and the policy enunciated in February 2007, to pay SGOA at two-thirds of core fostering allowance, involved a substantial departure from the relevant ministerial guidance. No sufficient justification for that departure has been provided. It follows that the decision and policy were, and the policy remains, unlawful.”

Commenting Nigel Priestley Senior partner at Ridley and Hall who represented the grandmother said: “Special guardianship allowances had been pegged significantly lower than fostering allowances aligned instead to residence allowances. Kirklees argued that it costs less to look after a child under a Special Guardianship order than under a care order. ” The court said: First, on a proper reading of the relevant guidance, which Kirklees should have followed, special guardianship allowance should be set having regard to fostering allowances. Second, that having regard to fostering allowances meant more than a token nod in the direction of fostering allowances before pegging them to something completely different – the amount of the residence Allowance. Third the Judge was scathing about Kirklees Policy. He said “most of the rationale has no logical connection whatever with the decision which it is supposedly supporting: the question is not one of right or wrong, but of simple irrelevance.”

Impact of the decision

Mr Priestley considered the impact would be:

- Kirklees must take immediate steps to align its Special Guardianship Allowance with the Fostering Allowance.

- All those with a Special guardianship Allowance paid by Kirklees must get back payments representing the shortfall in their allowance and start being paid appropriately. They need to get urgent legal advice. 

- This decision linked with the Lewisham decision should have an impact on other authorities across the country.
Kirklees in its response referred to other authorities in Yorkshire which acted in a similar way. Figures which have been obtained by Kirklees from neighbouring authorities throw up remarkable disparities, both in the nature of the scheme operated and in the amounts paid. For example the East Riding of Yorkshire County Council, very similarly to Kirklees, pays fostering allowance at £142.29 and SGOA at £92.62.

Reactions to the Judgement

“I am delighted .Everyone knows how expensive it is to bring up children nowadays! An extra £50 per week will make all the difference to me. My grandson is a livewire – he’s on the go all the time. This gives me the chance to get him involved in activities in the holidays – and to buy him the things he needs which as a pensioner I just couldn’t afford. It’s a lifeline – but it has taken me over 4 years to gain this victory” Mrs B (the Grandmother)

“The Grandparents’ Association is delighted with this ruling and are grateful to Ridley and Hall, yet again, for successfully fighting unfair decisions made by local authorities who fail to see that families are giving love and care to children. These children are vulnerable and would otherwise be in the care system. Everyday our helpline is fighting cases where budgets are put before children. We will continue to work with Nigel Priestley and his colleagues until all children in this position are treated fairly.” Lynn Chesterman Chief Executive of the Grandparents Association

“This is a very welcome judgement. Most children on a special guardianship order are being raised by family and friends carers, often impoverished grandparents, aunts and uncles or even siblings. These children are often very vulnerable, unable to live with their parents because of tragedy or trauma. We know from research that they having suffered similar adversities as children in the care system and can have very similar needs. It’s therefore vital that their carers are given the financial and practical support necessary, and that the children aren’t penalised because they are outside the care system” Cathy Ashley Chief Executive of Family Rights Group