Wednesday 18 July 2012

After a 2 year battle, a “Grandparent kinship” carer’s court action has smashed a key policy of  the London Borough of Merton for financial support of kinship carers. His Honour Justice Edwards-Stuart sitting in the Administrative Court in London has today ruled Merton’s Special Guardianship allowance policy illegal. This has a direct impact on all current and future carers with Special Guardianship Orders, not just in London but across the country.

The carer known as TT has won in the High Court the right to be paid at the same rate as a foster carer for the child she is looking after under a Special Guardianship Order.  The decision to adopt a level of allowance for special guardians of two thirds was  unlawful and must be quashed.

Background

TT had been requested by social services to care for her son’s ex-girlfriend’s child from a different father. After C was born both parents received long prison sentences and were unable to care for C. C went into foster care whilst the London Borough of Merton Council attempted to find a more permanent placement for the child. C’s family were not willing to put themselves forward as carers so the council decided to approach TT.  TT was caring for her granddaughter, who was also C’s mother’s daughter, at this point and the council wanted C to grow up with some family contact so asked TT to care, even though she was not a blood relation. She was determined to bring him up as if he was her grandchild

At the end of care proceedings she was awarded with a Special Guardianship Order. As part of the support package with the Order she was granted a financial allowance.

Commenting, Rebecca Chapman of specialist Huddersfield Kinship care law firm Ridley & Hall who represented TT said:
“Merton threw down a challenge! The Allowance was so low it caused concern to the person representing C in the care proceedings. The issue was raised with the local authority who informed TT that “if she did not like the amount of the allowance she could challenge it through the High Court”. She was left with no choice.”

The allowance was based on two thirds of the fostering allowance and then there were further deductions made.

Once solicitors became involved the council quickly acknowledged that the further deductions made to the allowance were not right. They backdated a payment to TT for the additional deductions. However, they said it was legal to pay the special guardianship allowance based on two thirds of the fostering allowance. This was a bizarre decision. Merton knew that there was a previous court case which had found that paying an allowance at this level was illegal.

Ms Chapman went on: “My client needs the money. Before C was put into the care of TT he witnessed a violent relationship between his parents. Since his father has been sentenced he has been diagnosed with serious mental health problems.

As C had a difficult start to life and because he was mixed race, TT thought it was unlikely that he would be successfully adopted and she was keen to ensure that he was brought up in a loving environment so decided to take on his care. When TT decided to care for her granddaughter she had to give up her job and then when C was placed with her she was unable to go back to work due to the caring commitment. As C has grown older he has shown more challenging behaviour and she has been unable to go back to work due to the level of care that C requires.

TT commented when she heard the court ruling:
“I was delighted to find out that I would be receiving an allowance which would ensure that I could meet all of C’s basic needs and the additional needs he has due to his behaviour. This will make a huge difference to his life”. This marks the end of my two year battle.’ ‘I never thought I would have to go to court to get a proper level of payment.’

‘This is not a fight just for the child I am caring for. Right across the country relatives are stepping in to care for damaged children. Social services would be in a desperate position without kinship carers. Sadly they are then treated like second class carers. It’s now up to Merton to start paying other Kinship carers appropriately.

Rebecca Chapman concluded: “When my client started this case she was paid £27.88 per week. Merton thought again and paid her £84 per week. Now their starting point will add another £100 per week. “My client stepped in so that the children could be protected. It is widely acknowledged that in these circumstances, children do better when cared for within the extended family or with friends.’

It is a shame that we had to proceed to a final hearing in this case, especially given the fact that my colleague Nigel Priestley has already won a case against another local authority on the same point.  However, I am delighted that TT is now going to receive an allowance which should ensure that C’s future is secure with her”.

The Judgment can be found at www.innertemplelibrary.com. The Court ordered that the identity of the carer and the child must not be disclosed.

For further information please contact Rebecca Chapman or Nigel Priestley or call 01484 538421