In a Nutshell: Special guardianship allowances

Why was Merton the subject of a judicial review over its special guardianship policy on allowances?
The claimant, TT, was approached by the local authority (LA) to care for C, the half-brother of J (TT’s granddaughter already living with her) because no other family members were willing or able to. TT and C were not blood relations. This would allow the half-siblings to grow up together. TT told the court that when the LA approached her she was told she would receive an allowance to care for C in line with the borough’s fostering allowance. At the end of the care proceedings a special guardianship order (SGO) was made to TT and she was granted an allowance under the support package that came with the order. It became clear that the allowance was insufficient and she began to accrue debt as a result of the costs of caring for the children.

TT’s application for judicial review alleged that the LA’s special guardianship allowance policy was fundamentally flawed. She argued that further to government guidance, when formulating its policy in relation to the allowance to be paid to special guardians, the LA had not had regard for the amount of fostering allowance that would have been payable if C had been fostered as required, and that the LA had wrongly assessed her means for the purpose of making any deductions from the allowance. In its policy, the LA’s amount of financial allowance was based on two-thirds of the fostering allowance with further deductions being made.

What did the court consider when deciding on the appropriateness of Merton’s special guardianship allowance policy?
The court considered the government guidance on special guardianship allowances and Nina Oldfield’s research, on which the National Fostering Network (NFN) allowances are based, that the costs of looking after a child in foster care were approximately 50 per cent more than a natural-born child. Edwards-Stuart J. declared that the policy was unlawful, finding that some of these costs, at least, would be incurred regardless of whether the child was in foster care or subject to a SGO. He further held that any LA setting such a policy must take into account the NFN’s recommended minimum allowances and adjust them according to the special guardianship guidance.

What is the significance of this judgment?
This judgment follows a series of similar successful court applications brought over the past few years by kinship carers who have been looking after children at the request of an LA to avoid them going into care but who suffer financial disadvantage in doing so. LAs will need to continue to carefully ensure that their policies for carers are lawful and offer parity ?with foster carers.