Entitlement of grandparent to fostering allowance

Case-law - Court of Appeal judgment given on 10 November 2011: R (SA) v Kent County Council

The local authority had appealed against a decision that a child living with a grandparent in an arrangement initiated by the authority, was a Looked After child and thus that the grandparent was entitled to financial provision from the authority in the form of a full fostering allowance rather than just discretionary payments under Section 17 of the Children Act 1989.

The Court of Appeal dismissed the appeal, upholding the finding that the child was  Looked After
and that the grandmother was entitled to the full fostering allowance.

The Court of Appeal judgement was largely concerned with legal arguments on the interpretation of Section 23 of the Children Act 1989 in the light of previous case law.  The Court, however, broadly agreed with the reasons given by the Court of first instance for finding in the grandmother's favour.

The local authority's argumemt, that the arrangement was a private arrangement between the mother and grandmother, was not accepted by the Court. The child was living with the grandmother by virtue of a placement as a Looked After Child. The decision has highlighted the following issues: 

1. before the child came to live with the grandmother, all discussions were initiated by the local authority;
2. the arrangement for the child to live with the grandmother resulted from the grandmother’s discussions with the social worker rather than any discussions between her and the child’s mother;
3. the social worker was centrally involved in sorting out what arrangements should be made for the child
4. the social worker's significant involvement in day to day arrangements for the child appeared clearly from the records;
5. neither the nature of the placement nor the question of financial support were ever addressed explicitly with the grandmother by the local authority;
6. although the local authority sought to regulate the living arrangements that should be in place for the child, no one from the local authority ever set out for the grandmother, at that time, the ambit of any financial help that might be available for her and certainly no one told her that she would, essentially, be on her own with regard to financing the child’s stay except in so far as discretionary payments might be made under Section 17.

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