Reviews and terminations of approval of foster carers
A foster carer may, at any point give written notice that they wish to resign from the role. As such, their approval is automatically terminated 28 days after receipt of the notice by the fostering service (regulation 28(13)).
The decision maker, alongside the fostering service, does not have the power to decline a resignation. Instead, they can only offer advice; informing the carer that their resignation will automatically take effect after 28 days – regardless of whether the notice is then withdrawn.
Approval of all foster carers must be reviewed, and a decision about suitability made, within a year of approval, and thereafter whenever it is felt necessary, but at intervals of no more than twelve months. The review must consider whether the foster carer and their household continue to be suitable.
The fostering service must make whatever enquiries it considers necessary to inform this judgement; which may include checks in relation to any new members of the household.
A written report must be prepared, and in the case of the first review this must be presented to the fostering panel for a recommendation. If it is decided, taking account of any recommendation from the fostering panel if applicable, that the foster carer and their household continue to be suitable, then the foster carer must be notified in writing.
The Role of the Panel and Agency Decision Maker
There is no requirement in the Regulations to refer changes or terminations of approval to panel for a recommendation. However, the fostering service provider is required to take account of any recommendation made by the fostering panel if the matter is referred to them. This decision will be made by the Agency Decision Maker.
The fostering service must identify a senior member of staff (usually referred to as the decision maker) who will receive the panel’s recommendations, and make decisions as required.
More than one decision maker may be appointed, but they may not delegate their authority to another person. Standard 23 sets out the qualifications, knowledge and experience required of the decision maker.
Regulation 27 requires that the decision maker must take account of the fostering panel’s recommendation before deciding whether or not to approve a person as a foster carer, and on what terms. Their decision must be made within seven working days of receipt of the panel’s recommendation via the minutes (standard 14).
The decision maker is also responsible for deciding whether a person and their household remain suitable to foster, and whether the terms of approval remain suitable, following each review of the foster carer’s approval.
The decision should be based on the written report of the review; taking account of any recommendation by the fostering panel (which must be provided on the occasion of the first review and may be provided for subsequent reviews) and any recommendation of the IRM.
In reaching a decision or making a qualifying determination, the decision maker should consider Hofstetter v LB Barnet and IRM  EWCA 328 (Admin), in which the court set out guidance for the way in which an adoption agency decision maker should approach a case.
The court said that it would be good discipline and appropriate for the decision maker to:
- list the material taken into account in reaching the decision;
- identify key arguments;
- consider whether they agree with the process and approach of the relevant panel(s) and are satisfied as to its fairness and that the panel(s) has properly addressed the arguments;
- consider whether any additional information now available to them that was not before the panel has an impact on its reasons or recommendation;
- identify the reasons given for the relevant recommendation that they do or do not wish to adopt;
- state (a) the adopted reasons by cross reference or otherwise and (b) any further
reasons for their decision.
Once a foster carer is approved, they must be notified in writing of this fact and of any terms of the approval. Terms may specify, for instance, that they may foster only a specific named child or children, or may identify a maximum number of placements which may be made at any one time.
Terms may also include factors such as short term or long term placements, short break care, or inclusion in a particular fostering scheme. Foster carers must also enter into a foster care agreement, covering the matters set out in Schedule 5 to the Regulations (regulation 2 and standard 14).
National Minimum Standard 14.5 requires that “foster carers and prospective foster carers are given the opportunity to attend and be heard at all Panel meetings at which their approval is being discussed and to bring a supporter to panel if they wish”.
They should have access to all reports that are being presented to Panel and to have made a written response to those reports if they wish.
If a carer takes a supporter to Panel, it will be the Chair who decides whether or not the supporter is allowed to speak on behalf of the foster carer. It would need to be made clear that if a solicitor is acting as a supporter, they are not there as a legal representative.
The Independent Review Mechanism
If the foster carer disagrees with the decision of the Agency Decision Maker, they have the right to make representations within 28 days, either to the original fostering panel or to the Independent Review Mechanism (the IRM).
Once the foster carer has decided which route they wish to take, they should inform the Agency Decision Maker – in writing and within 28 calendar days of the date of the letter from the Agency Decision Maker. – of their decision.
If, within 28 days, no representations are received and no application is made to the IRM, the decision maker is free to decide whether or not to approve the applicant as a foster carer (following a full assessment), continue the assessment (following a brief report) or amend their terms of approval.
If representations are received, the matter must be referred back to the fostering panel and a decision then made taking account of the panel’s further recommendations.
If the application is referred to the IRM, the fostering service must, within 10 working days of notification of this, supply the IRM with the documentation submitted to the fostering panel and any relevant information received subsequently, along with copies of the notices of determination (regulation 29). The decision maker must take account of the recommendation of the IRM, as well as that of the original fostering panel, in reaching a decision about approval.
A determination to change a foster carer’s terms of approval is not a qualifying determination if, following a review of the carer’s approval under regulation 28:
- The fostering service provides the foster carer with a written statement setting out whether they consider the foster carer’s household, including any children placed there, to have additional support needs as a result of the change, if so what these support needs are and how they will be met, and
- the foster carer provides their written agreement to the change.
Foster carers must not be pressured to accept changes to their terms of approval.
For more information on the Independent Review Mechanism see http://www.independentreviewmechanism.org.uk/?q=fostering or visit our useful links page.