If you fostered the child before the order: the two-year rule

Written and reviewed by Patricia Hughes · Last updated 29 August 2026 · last reviewed 29 August 2026 · rates for 2026/27

If you were the child's foster carer before the special guardianship order was made, there is a rule that applies to you and not to other special guardians. The end of it is not automatic and it is not final. Nobody told me that, and I could not find it put plainly in the guidance either.

What regulation 7 does

For two years from the date of the order, your council can carry on paying the reward or fee element of the fostering allowance you were receiving for that child, and for longer where it considers that appropriate.

Read that carefully: it says can, not must. Regulation 7 gives your council a power rather than giving you an entitlement. Your position is still a strong one, but the argument comes from the statutory guidance and from the Court of Appeal holding that family foster carers should not be worse off than unrelated ones, not from regulation 7 creating a right.

My calculator applies this automatically. If you tell me what you were paid as a foster carer and the order was made less than two years ago, I hold your figure at that amount rather than showing you a lower one, even where the national minimum for your area is lower.

Why it exists

The Court of Appeal held that paying family foster carers less than unrelated foster carers was unlawful, and that a carer should not be made worse off by taking on a special guardianship order for a child they were already looking after.

The mistake to watch for

Councils sometimes step the whole allowance down across the two years, when the rule reaches only one part of it.

In 2020 the Ombudsman looked at a council that reduced carers' entire allowances to 75% and then 50% over the two years, treating regulation 7 as authority to do so. The Ombudsman found that misapplied the rule.

If your payments are being stepped down, ask your council in writing which element it is reducing and on what basis. That single question often resolves it.

First, a question that comes before all of this

Regulation 7 only applies at all where your council decided to include a reward element in your financial support before the special guardianship order was made. If it never took that decision, regulation 7 is not the rule for your situation, and an argument built on it will not land.

So the first thing to ask is simply whether that decision was taken, and when. If it was not, your position rests on the statutory guidance and on the Tower Hamlets case instead, which say a council should not pay family carers less than unrelated foster carers without cogent reasons.

Before the two years are up

The end of the two years is not automatic and it is not final. But the test for continuing is higher than it sounds. A council may carry on paying the reward element only where it considers that necessary because of the exceptional needs of the child, or other exceptional circumstances.

That wording matters. "My child's needs have not reduced" does not engage the test, and a request put that way can be refused without the council ever having to weigh anything. Set out what is exceptional about your child's needs or your circumstances, and say so in those terms.

Ask in good time, several months before the anniversary.

What you can check, and what you have to ask for

Regulation 7 itself is published, and what it covers is narrow: the reward element of your fostering allowance, and nothing else.

Whether your council decided to include a reward element before the order was made is the part you cannot look up. Without that decision, regulation 7 does nothing at all.

I went through my own fostering paperwork looking for it and could not find a clear answer. If it is not in yours either, ask for it in writing.