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Foster carers and special guardians missed out on entitlements

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An important Ombudsman’s report was published last week following an investigation into Liverpool City Council and its Social Services department.

The Ombudsman found that in 340 cases which it had been made aware of, the Council had not paid family carers of young children the going rate as foster carers. This happened because Liverpool City Council had considered that the children were not ‘looked after’ when families had agreed to look after grandchildren and other young relatives when their own parents could no longer care for them.

The law says that if the local authority has arranged for the care, then the children become ‘looked after children’. This means that the local authority then take on a number of responsibilities for the child.

In these cases, rather than accepting that responsibility and making the arrangements for their care, the Council encouraged families to take out Special Guardianship Orders or Residence Orders which – they believed – made the arrangement for caring for the children a private arrangement, rather than the Council arranging it.

The consequence of this was that the Council took the view that they would not have to pay the guardians, or not have to pay them the going rate in fostering allowances, because they were not classed as ‘looked after’ by the Council and according to the Children Act definition.

The Ombudsman disagreed and recommended that the families be given suitable financial redress and the difference in rates of allowances be paid to them. Moreover, the Ombudsman suggests in the published report that many other councils may have made similar errors of judgement in dealing with these kinds of cases.

The other consequences of the decision are not so widely reported, however the children are potentially owed many other duties by a Local Authority in terms of their future care and support if they are deemed ‘looked after children’ but not so if they are not classified as such.

This is therefore a very important decision with wide implications.

By Mike Devlin and Pete Donohue

Stephensons has a long history of expertise in the field of community care law and has experts in adult care provision, child care, and care funding matters.

Our Family team is recognised for expertise in Child Care law and regularly represent individual family members in these types of cases. Our experience has highlighted that it is crucial for those feeling pressurised into agreeing to care for a child or obtain a Special Guardianship Order to obtain advice on these issues before a Final Order is made.

Legal Aid may be available, or we have a competitive tariff of fixed fee options to assist people in legal matters in this field. If you have been affected by a similar situation and need legal advice, then please call 01616 966 229