The Rights of Foster Carers -The NUPFC Judgement

• 
• Author:Sarah Anderson
• Published:July 2021
• Country:

The NUPFC judgement and why it is so influential?

One of the significant things about this case is that when they lost this appeal the certification officer, the Secretary of State for Education and the European Children’s Rights Unit all declined to take this case to Supreme Court and let the judgment rest here. They were concerned that if we won at Supreme Court, which is looking more and more likely, it would become such big news it would be hard to ignore.

Summing up the Judgement

That our fostering agreement is a contract and that we are ‘workers’ and should have rights. It is important here to note that Lord Underhill could only rule within the scope of this tribunal which was to ascertain if we could have our own official trade union, even so as you can see he still has a wider opinion on our fostering agreement being a contract and that we should have rights.

Lord Justice Underhill says he’s puzzled by the argument (that they use all the time) that our fostering agreement is ‘not a contract’ because it is ‘set in statute’ (ie a specific law) as teaching and nursing is also set in the statue in the same way yet they have full rights, The government need to look into this.

If the old and well-used case/precedent W v Essex (which is based on fostering 22yrs ago and we all know how much it has changed for carers since then) was to be overturned by the Supreme Court Lord Underhill says “it seems that full worker or employee status would necessarily follow notwithstanding the Secretary of State’s strong view that this was undesirable”

Lord Underhill states that the Government may wish at least to consider whether it would make sense to now look into introducing a bespoke legislative provision for the position of foster carers, which would provide for rights appropriate to our very unusual role.

If you want to know more here are some quotes from the summing up:

• I accordingly believe that the Court should allow the appeal and make a declaration that for the purpose of the Trade Union and Labour Relations Act…that the definition of “worker” extends to persons who are parties to a foster care agreement with a fostering service provider
• The Certification Officer is very likely now to be obliged to enter the NUPFC on the (Trade Union) list.
• The declaration applies the extended definition of “worker” only for the purpose of sections 2-4 (Being allowed to officially unionise)
• This is puzzling (*that our agreement is not a contract because it’s set in statue/a law) There are other types of work, such as teaching and nursing, where pay and conditions are determined nationally pursuant to statutory powers and cannot be varied by the parties. The Divisional Court decision in Norweb v Dixon concerned the nature of the relationship between electricity supplier and customer, which is an entirely different topic. The doctrine of precedent means that we are bound by W v Essex, as this court and all lower courts and tribunals have been for more than 20 years since it was decided. But I respectfully suggest that it may require reconsideration, either by the Supreme Court or by Parliament.
• I would make one final observation. Despite what I have said about the effect of this decision being limited to trade union rights….it will be appreciated that the exclusion of foster carers from employment rights, turns entirely on the question of whether the relationship between foster carers and the fostering services is to be characterised in law as contractual. That is a legal question that takes no account of the peculiarity of the role itself. If they (previous case W v Essex County 1999 ) were to be overturned by the Supreme Court it seems that full worker or employee status would necessarily follow notwithstanding the Secretary of State’s strong view that this was undesirable
• The Government may wish at least to consider whether it would make sense for it to consider seeking now to introduce a bespoke legislative provision for the position of foster carers, which would either preserve the present exclusion or provide for rights appropriate to their very unusual.

The links on the right will take you to the full judgement.