Over the past two years the Equality and Human Rights Commission (EHRC) has been examining the support provided to children in kinship care in Scotland. We identified serious human rights concerns in relation to the financial support provided by some local authorities to looked after children in kinship care. To address these concerns, the Scottish Government is now providing an additional £10.1 million every year to councils to increase kinship allowances to the same level as foster allowances. This article provides an explanation of our work in this area including: our legal powers; the human rights issues and the positive change that this work has achieved.
Thousands of children in Scotland live full-time with their grandparents, aunts, uncles and family friends because their parents are unable to care for them. Sometimes this is a formal arrangement made with the involvement and support of local authorities and courts and sometimes it is informal and arranged within the family.
There are 4,181 looked after children in Scotland who are living with family or friends . This is often referred to as formal kinship care. Looked after children are children who are in the care of their local authority and they can be looked after at home or away from home.
It is estimated that 13,000 children in Scotland are living in informal kinship care in Scotland . These children may be living with family or friends under a residence order or they may be being cared for by family or friends in a private arrangement with no local authority involvement at all.
The Equality and Human Rights Commission
The EHRC was set up under the Equality Act 2006 to challenge discrimination and to protect and promote human rights in Britain. Part of our role is to identify and tackle areas where there is still discrimination or where human rights are not being respected.
We have a range of enforcement and strategic litigation powers. Our enforcement powers include inquiries, investigations, unlawful act notices and binding agreements. Our strategic litigation powers include taking judicial review proceedings in our own-name and intervening in legal cases taken by others.
Since 2007, the Scottish Government and the Confederation of Scottish Local Authorities (COSLA) have committed to providing allowances for looked after children in kinship care that are equivalent to the allowance paid for looked after children in foster care. However, in 2013, the Poverty Truth Commission contacted the EHRC with concerns about the number of kinship children and families living in, or at risk of, poverty. They asked us whether, using our legal powers, we could help address problems around the low levels of financial support provided to kinship families.
Taking into account our regulatory function and powers, we decided that our focus was on protecting and promoting the human rights of children in kinship care. To identify any potential violations of the rights of children in kinship care we needed up-to-date evidence about the arrangements for supporting vulnerable children in each Scottish local authority, before deciding whether enforcement action was needed and appropriate.
Using Freedom of Information legislation, we sought information from all councils about their arrangements for supporting children in kinship and foster care. We looked at the ways financial support for the maintenance and accommodation of children is provided by councils and by the UK benefits system. We also gave detailed consideration to whether there were any reasons why children in kinship care need less financial support than those in foster care.
We found children living with family or friends in a private arrangement with no local authority involvement are unlikely, because of the informal nature of these arrangements, to be entitled to financial support from the local authority. If a child is living with kinship carers in informal arrangement, the kinship carers should be entitled to claim UK state benefits for the child.
We found that all local authorities paid an allowance for looked after children in kinship care. The type of payment, what it is for, the legal power the local authority used to make the payment and the amount paid, all varied across Scotland. However, once UK benefits were taken into account, 16 out of Scotland’s 32 councils were paying equivalent allowances for looked after children in kinship and foster care. These councils based the kinship allowance on the foster allowance, minus any child-related state benefits received.
Foster carers are not entitled to claim state benefits for the children they foster. Whether kinship carers are eligible to claim child-related state benefits for looked after children (such as child benefit, guardian’s allowance and child-tax credits) depends on the legislation the local authority uses to pay the allowance. We identified nine councils that paid kinship allowances using legislation that meant the kinship family were not entitled to claim state benefits for looked after children in their care.
However, we were particularly concerned with the arrangements in four councils because in addition to using these statutory provisions, the level of kinship allowance was considerably less than the foster allowance. The lower level of kinship allowance and the inability to claim state benefits resulted in looked after children in kinship care receiving around 60 to 70 per cent less money per week than those in foster care. The differences are shown in the table below using, as an example, the allowance a 10 year old child would receive.
The human rights issues
We were of the view that the arrangements for paying kinship allowances in these four councils may be in violation of the European Convention on Human Rights (the Convention). Section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. We were concerned that these councils may have been acting in violation of Article 14 in conjunction with Article 8 and Article 1 of Protocol 1.
Article 14 provides that all Convention rights must be enjoyed without discrimination. Article 14 applies either when there has been a violation of one of the substantive rights in the Convention or the facts of the case fall “within the ambit” of one or more Convention articles . The protection from discrimination includes a wide range of characteristics, including ‘other status.’ It has been held that ‘other status’ means a personal characteristic  and that this includes family status , such as a child being in kinship care.
Article 8 recognises the right to respect for private and family life, home and correspondence. It can impose a positive obligation on the state to take measures to provide support to secure private and family life . However, there is a wide margin of appreciation enjoyed by states in striking the fair balance between steps the state is required to ensure compliance with the Convention and the allocation of limited state resources.
Article 1of Protocol 1 (A1P1) recognises the right to peaceful enjoyment of property and possessions. It provides that no one shall be deprived of their possessions except when it is in the public interest and subject to the conditions provided for by law and by the general principles of international law. “Property and possessions” has a very wide meaning under A1P1 and it has been held that where the state has decided to create a system of benefits or allowances, this system must be compatible with Article 14 .
The EHRC provided a report of our findings to the Scottish Government and COSLA. We also explained that we were minded to use our legal powers to raise judicial review proceedings against one or more of the four councils, challenging the lawfulness of their arrangements for providing financial support to looked after children in kinship care.
The Scottish Government and COSLA responded positively to our concerns and immediately began working, together with Social Work Scotland (SWS), to address the issues we raised. They reached an agreement in September this year.
Councils agreed to use section 22 of the Children (Scotland) Act 1995 to pay kinship allowances, allowing kinship families to claim state benefits for looked after children. The Scottish Government agreed to provide an additional £10.1 million funding every year so that the kinship allowance, when combined with state benefits, will be the same as the foster allowance. This agreement applies to looked after children in formal kinship care and children who are subject to a section 11 Order (known as a Kinship Care Order).
The additional funding is available from 1 October 2015 and although it may take councils a short while to determine how much each kinship carer should receive, the Scottish Government expects payments to be backdated to 1 October. The Scottish Government also expects councils, by 1 November, to have published their foster allowance rates to ensure that parity of allowances is clear and transparent .
The Scottish Government is working with COSLA, SWS and kinship carer groups on developing a longer term policy on foster and kinship care allowances, which will amongst other things, respond to the changes in state benefits caused by the introduction of Universal Credit.
The outcome of the EHRC’s work on kinship allowances is a significant step forward in addressing some of the issues facing kinship families in Scotland. Significant additional funding and a change in policy have been achieved because we brought robust evidence of potential human rights violations to the attention of law and policy makers and because the EHRC has the legal powers to challenge such violations.
 Scottish Government 2015, Children’s Social Work Statistics 2013-14, table 1.1. p7
 CAB Scotland 2014, In the family way: five years of caring for Kinship Carers in Scotland
 Stec v the UK  41 EHRR SE 18 para 39
 Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, 732-733, para 56
 X v London Borough of Tower Hamlets  EWHC 480 (Admin) paras 99 and 100
 R (McDonald) v Royal Borough of Kensington and Chelsea  4 All ET 881 para 15
 B v UK application 30571/06, para 36 citing Stec
Last updated: 02 Mar 2016