Human rights – discrimination – proportionality – policy
A local authority’s policy to pay short-term foster carers who were friends or relatives of the fostered child at a significantly lower rate than other foster carers, was discriminatory and unlawful.
The claimants challenged the council’s policy on five main grounds:
the policy was an attempt to apply financial pressure on family members to move away from local authority support;
the policy was a financial disincentive to family members being foster carers and abused their sense of moral obligation;
the policy was discriminatory contrary to article 14 European Convention on Human Rights and failed adequately to implement the council’s obligation to promote the right to respect for family life guaranteed by article 8;
the policy was an attempt to transfer the financial burden of looked-after children away from the council and was an abuse of the council’s dominant position in relation to foster parents and children;
the policy excluded any flexibility to allow payment of the normal fostering allowances to relative foster carers in appropriate cases.
The court rejected those arguments which sought to attribute dubious motives to the council’s policy, stating that the policy was driven by entirely legitimate considerations, but found that the cash limits imposed on the amounts that could be paid to relative foster carers were inflexible and arbitrary and fundamentally discriminated against short-term relative foster carers and the children in their care. Notwithstanding that the policy was based on legitimate considerations, differential treatment based on family relationships or which had an additional impact on family members could only be justified by counterbalancing factors of a compelling nature and the council’s policy failed to meet the key Convention tests of “necessity” and, in particular, “proportionality”. Accordingly there had been a breach of articles 8 and 14 of the Convention.
The Court also found that the policy was ‘Wednesbury‘ irrational and if the policy failed when tested against classic public law principles “then it inevitably follows that it will fail to pass muster under the Convention”.