Examining the Landmark Foster Carers Tribunal
Landmark Foster Carers Tribunal.
The landmark foster carer’s rights case wrapped up last week, and we now await the judge’s ruling in May.
To recap, In June 2023, the East London Employment Tribunal heard test cases of three foster carers.
Foster carers are classified as neither workers nor employees, meaning they are denied fundamental employment rights, leaving those who look after and accommodate the country’s most vulnerable children, without any protection or security.
For me, this case kept returning to one thing – the chasm between the reality of fostering, and the genuine picture from the claimants, against the mythical portrayal of what fostering is from the defendants. The defendants were the Secretary of State for Education and three local authorities.
That such hefty opponents should seemingly know so little about the realities of what they were defending concerned me. This seemingly unbridgeable fissure between reality and fantasy is at the heart of this case.
I didn’t recognise their version of foster care, one that unwaveringly failed to acknowledge the real role of the foster carer, the role created by the government itself. A role professionalised beyond recognition since W v Essex (a precedent set 20+ years ago) a complex skilled undertaking which provides the basic fundamental foundation for their ‘Better homes built on love‘.
What I found more concerning is the defendants’ version of foster care left no room for the majority of children and young people in care. It presented a narrative of the perfect single foster child embracing their new (permanent) family, wanting to go on holiday, eat around the dinner table, have fun days out and happily attend family gatherings and festivals.
Their narrative left no room for the diversity of those in care, from the day-old baby withdrawing from heroin to the teenager who’s been moved 10 times, to those on the Autistic spectrum, SEND, disability, those affected by gangs, grooming, county lines, sexual exploitation and trafficking, those working towards reunification with birth family or in care for a short time.
Then we had the defence’s supposition of when foster carers ‘work’ and when they are ‘not working’, this in itself was illuminating in terms of their uninformed narrative. They told us that foster carers can not be deemed ‘working’ when on holiday with their looked-after children, at family gatherings or around the dinner table or at Christmas and other festivals.
Is this lack of knowledge acceptable in a case of such gravity? Ask any foster carer and you will find they probably are more ‘at work’ during these times than any others, a time when children and young people are ten times more likely to be triggered, emotionally dysregulated, and express their trauma through a myriad of behaviours that challenge.
When given the job of caring for the corporate parent’s children foster carers signed up to do it 24 hours a day, 7 days a week, therefore by definition they are always on duty, always working, because there is certainly no time whatsoever when they can, or would, say ‘look after yourself today I’m not on duty’.
The foster carer’s case is a solid one, there is undoubtedly a contract (the Fostering Agreement), they receive remuneration (even if you discount the child’s allowance the majority receive fees for their skills and work) we are controlled in how we carry out our work (NMS, fostering regulations, social workers, care plans, supervision, training) and we can definitely not send a substitute.
The defendants claim that if given rights foster carers will then be ‘social workers looking after children in our homes’ and that’s ‘not a family’, this needs rebutting as carers’ contracts, working conditions, fees, and the controls they are under mean they are already ‘workers’ in all but name.
So fundamentally nothing will change, it is merely a misclassification that needs correction, and foster carers given the rights they should have had a long time ago.
The defence’s arguments then went to ‘intent’. They argued that when the statute was set up this was not its ‘intent’. To be honest, I’m pretty sure it wasn’t, but then I doubt it was its intent to leave foster carers powerless and children vulnerable, and if this is the unintended consequence of that statute, then my question is, if something as fundamental so obviously doesn’t work for those it is intended for, then is it not time to change it?
It was suggested that foster carers did not need employment tribunals as they already have a ‘perfectly good’ complaints procedure. Tell that to any foster carer and they will roll their eyes in disbelief and sigh in dismay.
The internal complaints procedure, the Ombudsman, the panel, and the IRM, it was even suggested that if a carer had an issue with their working conditions they could go to Judicial Review or County Court. Having supported thousands of foster carers over the last 12-15 years I can categorically state that none of these is adequate, effective, fair, take many years and categorically should not be, and are not, the answer to challenging work-related issues.
We then went to the matter of ‘ control’ in the foster carers role. I have to say I was astonished to hear from the defendants that apparently fostering services or social workers have no control over foster carers whatsoever, they only see them occasionally and foster carers were self-employed and were able to foster and ‘parent’ however they felt fit.
Of course, in actual reality, nothing could be further from the truth, and not only would it be a dereliction of duty on behalf of services to allow this, foster carers are rightly bound by a raft of standards and statutory regulations, are heavily supervised, and have to abide by strict care plans.
Another of the defence’s main arguments seemed to be that affording us rights was too complicated, not convenient and would cost too much. This, however, is not an argument for presentation in a court of law, it’s a political stance. I’m quite sure it would be far more convenient and cheaper for all employers to have workers they had no obligation to afford rights to but then isn’t that the whole point – why foster carers need legal rights – because no one is going to give them rights if they don’t have to.
The sad thing is I don’t think the government or local authorities have even contemplated the advantages and benefits of foster carers having rights and protections. Actually, we lag behind much of Europe in how we treat and protect our foster carers and those they care for, others have already realised how much better care is for it, and France has been doing it since 1989.
Maybe, just maybe, they are missing the biggest opportunity to permanently raise standards for our children and young people and finally fix retention, and recruitment and build their stable homes built on love.
