Derbyshire granny given the go ahead to challenge payments for looking after her grandchildren
A HIGH Court judge has given a grandmother the go-ahead to challenge Derbyshire County Council's policy of paying her less than a foster carer for looking after her own grandchildren.
And the ruling could mean the council has to review the cases of 200 non-foster carers who are acting as the guardians of children.
Family members who step in when a child cannot be looked after by a parent are receiving only 58% of the fostering allowance, which range between £126.98 and £191.73 – depending on the child's age.
The residence allowance policy – branded "childcare on the cheap" – was set by Tory councillors at County Hall, despite officers warning them the council could face legal action from relatives.
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It has now been challenged by a pensioner from Swadlincote, who has been caring for her grandson, now 13, since 2000. At one stage, she was also caring for her granddaughter.
The 67-year-old, who cannot be named for legal reasons, issued High Court proceedings in a bid to win the right to launch a legal challenge against the council over the policy.
In a landmark judgment, His Honour Judge Behrens decided the grandmother's case had merit and so gave her the go-ahead to challenge the council.
The grandmother is expected to outline her arguments in detail at a full hearing at the High Court later this year.
If she wins, the county council could have to pay out thousands of pounds in back payments to other relatives.
A spokesman for Derbyshire County Council said there are exactly 200 people in Derbyshire claiming a residence allowance to look after children, many from within their families. Although it is only the first round of the legal fight, the solicitor representing the pensioner said it added weight to his argument the council's policy was "unlawful".
Nigel Priestley, senior partner at Ridley and Hall, said: "Derbyshire County Council appears to have a habit of moving grandparents caring for their grandchildren on to residence orders within care proceedings.
"The council at best then pays a residence allowance, which is 58% of the fostering allowance – just over £70 per week. Derbyshire has deliberately chosen to get childcare on the cheap."
The grandmother was given custody of her grandchildren by Derbyshire Social Services as their parents were unable to look after them.
Mr Priestley said the council agreed to pay the grandmother a residence allowance on the basis that, if she had not stepped forward, the children would have gone into foster care. The grandmother said: "It would have cost the county council a fortune if they had to put my grandchildren into foster care.
"I am 67 and survive on my pension and residence allowance. I am shocked the council can treat me and other carers like me in this way.
"The amount I'm receiving is not a lot. I have to count every penny. It has been quite hard to make ends meet."
Mr Priestley said the council's own officers warned cabinet members in 2011 the authority could face a legal challenge if it did not pay relatives the same allowance as foster carers.
He said: "A decision was made by the cabinet to increase the special guardianship allowance to the same level as the fostering allowance. However, they decided all other adoption and residence order allowances will be maintained at 58% of fostering allowances.
"This was despite being warned the policy could be subject to future legal challenge. Cabinet chose to ignore that warning. It is a prophecy which has come true."
A spokesman from the council said: "This particular case is subject to ongoing High Court litigation, so we cannot comment in detail at this stage. We'd stress that this situation is not unique to Derbyshire. We continually monitor and review our payments and allowances, in line with national guidance and changes made as a result of case law – as do all local authorities across the country.
"Our carers are very important to us and we do everything possible to offer them the best professional support and financial allowances that we can."