Why a fixed percentage of the fostering rate is a problem
Written and reviewed by Patricia Hughes · Last updated · last reviewed
If someone has told you your allowance is "two-thirds of the fostering rate", or a third, or any other flat fraction, this is worth reading.
The short answer
Whether your council's particular policy is lawful depends on its wording and on how it is applied. No court has said that fixed percentages are unlawful as a class. Each case that reached a court concerned one council's policy on its own facts.
So the thing to ask for is the written policy and the reasons in your case, not a ruling.
What the courts have said
A council that set every special guardianship allowance at a flat two-thirds of the core fostering allowance was found to have departed from the statutory guidance without justification. In plainer words, it stepped away from a rule it is supposed to follow, without explaining why. That is where the unlawfulness lies, and it is why the phrase matters more than it sounds.
Barrett v Kirklees MBC [2010] EWHC 467 (Admin) (checked 2026-09-03)A blanket percentage deduction was held unlawful in that council's case in a later judgment. The same judgment confirmed two things that cut the other way, and they matter just as much: there is no duty to pay every special guardian an allowance at all, and a means test is not in itself unlawful.
R (TT) v Merton LBC [2012] EWHC 2055 (Admin) (checked 2026-09-03)The Ombudsman has found a council at fault over a fixed-percentage policy and recommended backdating. Note the word: the Ombudsman finds fault, and reserves "unlawful" for describing what a court has held.
LGSCO public report, North Tyneside Council (17 002 928, 27 February 2018) (checked 2026-09-01, shown from the web archive because the original address no longer responds)The distinction that matters
It is about where your council starts, not where it ends up.
Important
The objection is to starting from a percentage, not to ending up at a lower figure.
A council is entitled to assess your circumstances and conclude that a lower allowance is appropriate. What it should not do is decide the answer in advance and apply it to everybody regardless.
That is why my calculator never outputs a fixed fraction of the fostering rate as an answer, and why it will refuse to produce a figure at all rather than show you one that has been arrived at that way.
What to ask
- What figure did you use as the starting point, and where does it come from?
- Was a fixed percentage or proportion applied at any stage?
- What did you take into account about my circumstances and my child's needs?
Ask for the written policy at the same time.
There is a template letter for this. Work out your figure and it appears at the end of your result, already filled in with your council, your area and your own numbers. Template: challenge-fixed-percentage
What you can check, and what you have to ask for
The case law is above with the judgments named, and you can read it yourself.
What decides whether any of it reaches you is your council's own policy, and that you have to ask for. So do the reasons behind the figure you were given. Both in the same letter.
Work out what your council should be paying you It takes under a minute, and nothing you type leaves your browser.
Common questions
My council pays two-thirds of the fostering rate to everyone. Is that unlawful?
A blanket rule of that kind has been found to be an unjustified departure from the guidance. Whether your council's particular policy is lawful depends on its wording and how it is applied, which is why the thing to ask for is the written policy and the reasons in your case.
Can a council ever end up paying two-thirds?
Yes, if that is where a proper assessment of your circumstances lands. The problem is starting from a percentage, not arriving at one.
This is an estimate, not legal advice. Financial support for special guardians is discretionary, and there is no fixed amount you can require your council to pay. It shows you the figure your council should be starting from, and what the rules and the published decisions say about how it has to decide.
Your council can lawfully pay less than the maximum after properly assessing your circumstances. If something here matters to your case, talk to one of the advice lines below before you rely on it.
Where these figures and rules come from
- Barrett v Kirklees MBC [2010] EWHC 467 (Admin) (checked 2026-09-03)A flat two-thirds of the core fostering allowance was an unjustified departure from guidance.
- R (TT) v Merton LBC [2012] EWHC 2055 (Admin) (checked 2026-09-03)Blanket percentage deduction unlawful. BUT: no duty to pay every special guardian an allowance, and the means-test methodology itself was upheld as lawful.
- LGSCO public report, North Tyneside Council (17 002 928, 27 February 2018) (checked 2026-09-01, shown from the web archive because the original address no longer responds)Calculating a special guardianship allowance as a percentage of the fostering allowance was contrary to statutory guidance and case law. The council identified 171 families who may not have received the right support, and payments were backdated to November 2013.
- DfE Special Guardianship Guidance (Jan 2017), para 65 (checked 2026-08-29)
Related guides
Who can help
These organisations give free, independent advice on kinship care and special guardianship. They are not part of your council.
- Kinship: advice and peer support for kinship carers. kinship.org.uk
- Family Rights Group: free advice line for families dealing with children's services. frg.org.uk
- Citizens Advice: benefits, debt and general advice. citizensadvice.org.uk
- Local Government and Social Care Ombudsman (England), if you have complained to your council and are not satisfied. lgo.org.uk