Exemptions to the Usual Fostering Limit
The usual fostering limit
Schedule 7 of the Children Act 1989 limits the number of children who may be fostered by a foster carer. The “usual fostering limit” is set at 3. This means that no one may foster more than 3 children unless:
- The foster children are all siblings in relation to each other
- Exemptions can only be granted by the local authority within whose area the foster carer lives and only in relation to specific placements (in which case they must set out the terms as detailed below), and
- The foster carer’s terms of approval allow it (any terms of approval must be compatible with the number of children the foster carer is caring for even if an exemption to the usual fostering limit has been granted, unless the placement is an emergency and for less than 6 days)
- A local authority cannot grant an exemption to the usual fostering limit to a foster carer living outside of its area.
In considering whether to grant an exemption to the usual fostering limit, a local authority must have regard to:
- The number of children the person proposes to foster
- The arrangements which the person proposes for the care and accommodation of the fostered children
- The intended and likely relationship between the person and the fostered children, and
- Whether the welfare of the fostered children (and of any other children who are, or will be living, in the accommodation) will be safeguarded or promoted.
Where a local authority exempts a person from the usual fostering limit, it must notify the foster carer in writing:
- That s/he is exempted;
- Of the children, described by name, whom s/he may foster; and
- Of any condition(s) to which the exemption is subject to.
Cancelling or varying an exemption
A local authority may at any time, by giving notice in writing, vary or cancel an exemption, or impose, cancel or vary a condition to which the exemption is subject. In considering whether to do so, it must have regard, in particular, to the considerations in relation to granting an exemption as set out above. It should also consider how it will review any exemption to the usual fostering limit.
Local Authorities are required to have a representations and complaints procedure in place in respect of these functions.
Procedure for granting an Exemption
The local authority should nominate an officer with delegated powers to grant exemptions from the usual fostering limit, and ensure that fostering services and independent fostering agencies operating within the area are aware of the procedures to be followed in requesting such exemptions.
Since decisions in relation to exemptions from the usual fostering limit may be for children who are looked after by other local authorities and foster carers who are approved by independent fostering agencies, it is particularly important that decision-making should be both transparent and consistent. Local authorities may find it helpful to develop decision-making protocols between themselves and independent fostering agencies.
A person who either exceeds the usual fostering limit, or if exempted fosters a child who is not named in that exemption, is regarded as carrying on a children’s home for the purposes of the 1989 Act and the Care Standards Act 2000, and so needs to be registered as such with Ofsted.
A child who is not looked after does not count towards the usual fostering limited (e.g. a birth child, an adopted child, a child on a Special Guardianship Order (SGO) nevertheless, the needs of ALL children in the household must be taken into account in deciding whether to grant an exemption from the usual fostering limit.
Frequently asked Questions:
Q1: I foster for an Independent Fostering Agency. Who would need to grant any exemption?
A; The local authority in whose area the foster carer lives is responsible for granting any exemption, regardless of the fact that another Local Authority may be making the placement with the foster carer through the Independent Fostering Agency.
Q2: I have a sibling group of 2 children and have been asked to take another sibling group of 2. I have been told that I do not need an exemption as “a sibling group counts as one placement” Is this correct?
A: An exemption is always required when more than 3 unrelated children are being placed in one household. All children whether part of a sibling group or not, count as individual children and therefore individual placements. Therefore, two sibling groups of 2 children will require an exemption to the usual fostering limit as the children are not all related to each other. A sibling group of 4 children who are not placed alongside any other foster children would not require an exemption, as they are all related to each other.
Q3: A foster carer is approved for up to 3 children, and has one child in placement. The LA is being asked to grant an exemption to allow them to care for the child they currently foster PLUS a sibling group of 3 = total 4 children. Does the agency have to take them back to panel to increase their approval number?
A: Registration as a foster carer usually limits the number of children who can be cared for at any one time to 3. However, it is possible to approve a foster carer for more than three children provided that the fostering panel and agency decision maker are satisfied that the foster carer can meet the needs of more than three unrelated children, although the placement of more than 3 unrelated children will require an exemption. If a placement is made outside of the foster carer’s current terms of approval, then it must be terminated after 6 days, or the foster carer’s terms of approval must be changed by review.
Terms of approval can only be amended following a review as outlined in Fostering Services Regulations (2011 – as amended 2013) and the Agency Decision Maker’s approval of the amended terms. In July 2013, Reg. 28 of FSR 2011 was amended to allow this decision to be made without the need to issue a qualifying determination first. The need for a qualifying determination previously delayed any changes for 28 days, even when the foster carer was in agreement with the change of approval. Where it is proposed to change only the terms of approval, a decision can now be made to change them with immediate effect provided that:
- The FSP sets out whether the foster carer or member of their household (including any children placed) may have additional support needs aas a result of the proposed changes, and if so how these will be met, and
- The foster carer agrees in writing to the proposed changes.
Q4: How long does an exemption last for?
A: An exemption is not time limited unless a time limit is set as a condition of the exemption being granted. However, a local authority may vary, cancel or amend an exemption by giving notice in writing. The local authority will also want to consider how it will review any exemption to the usual fostering limited and will need to have specific arrangements with the fostering service regarding this.
For further guidance please click for pdf – or telephone FosterTalk for advice.