Tower Hamlets' foster policy declared unlawful

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

The foster policy of London Borough of Tower Hamlets has been been declared to be unlawful because it discriminates against family and friend foster carers. Read the full case here.

In this case, Males J. was concerned with a judicial review brought against the London Borough of Tower Hamlets' policy on payments to family and friends' foster carers. The claim was brought by the registered foster mother and aunt of 3 children described by the Judge as "damaged and difficult". The birth parents unfortunately had many difficultes including both mental health and learning difficulties. As a result the children suffered severe neglect. The children themselves also suffered from many varied complex medical diffiiculties. The children were originally removed in 2007 into foster care but after a number of placement breakdowns the Local Authority approached the aunt to care for them. She had up until them had a well paid job and was financially independent. As a result of taking on the care of the children she left her job and became dependent on state benefits. The panel which approved her as a foster carer voiced that it would have been unusual for 3 such complex children to be placed with a single carer but that it had only been possible in this case as she was so dedicated and the alternative would have been to split the children up.


The policy of the LA had been to pay less ( save in exceptional circumstances) fostering allowance to family foster carers than to unrelated foster carers so the aunt was being paid less than she would have been if she had been unrelated to the children. She brought the claim on the basis that the LA's policy did not comply with statutory guidance and was discriminatory. She also complained that the LA's failure to pay her an enhanced rate based on the "exceptional circumstances" criteria was wrong.


Males J. reviewed the law and in particular Family and Friends Care: Statutory Guidance for Local Authorities 2011.  This guidance focusses on the Government's expectation that LAs should give equity to carers in terms of both provision and entitlement, taking into account the statutory provision that LAs should try and place children with family and friends carers in the first instance.


The Judge declared that the LA's policy was unlawful and discriminated on the grounds of pre-existing relationships with children between family and unrelated foster carers and that the LA had no cogent reasons for non-compliance with the statutory guidance. The Judge found that the policy was unlawful in UK law and that the issue of the aunt's entitlement to an enhancement could be addressed through an alternative remedy by way of the LA's complaints policy. The LA was given 3 months to reconsider its policies.


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