Summary: We found fault on Ms M’s complaint about the Council’s actions when her niece came to stay with her following police involvement which caused her upset and financial loss. It failed to explain to her this was a private family arrangement and what this meant. The agreed action remedies the injustice caused.

The complaint

1. Mr L complains on behalf of Ms M about how, when she cared for her niece during 2023/2024, the Council:
1. provided her niece with unsatisfactory care and planning during the arrangement;
2. gave poor support while she was in her care; and
3. failed to provide financial support by arguing this was a private family arrangement.
2. As a result, she was upset by the way she was treated, her niece returned to her mother, and she suffered financially.

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The Ombudsman’s role and powers

3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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Key legal considerations

Section 17 of the Children Act 1989

7. This says councils must safeguard and promote the welfare of children within their area who are in need by providing a range and level of services appropriate to the children’s needs.
8. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

9. There is a general power under section 17 to provide assistance, which includes financial assistance, for children and their families and also a positive duty under section 20, to provide accommodation and financial support for some children who appear to be in need of accommodation.

Section 20 of the Children Act 1989 (the Act)

10. This says councils shall provide accommodation to any child in need within their area who needs it, because:

• there is nobody with parental responsibility to care for them;
• they have been lost or abandoned; or
• the person who has been caring for them is prevented from providing suitable accommodation or care.

11. Councils cannot accommodate a child under section 20 if a person holding parental responsibility objects and is willing and able to care for the child or arrange care for the child.

Case law

12. Councils need to distinguish between private arrangements made between parents/carers and arrangements in which the child becomes accommodated under the Children Act 1989 and so becomes a looked after child.
13. The courts considered when an arrangement for a child to live with a relative is truly a private arrangement. In a key case (London Borough of Southwark v D [2007] EWCA Civ 182), the Court said where a council has taken a ‘major role’ in arranging for the friend or relative to care for the child, it is likely to have been acting under its duties to provide the child with accommodation.
14. The Court considered a private fostering arrangement might allow a council (otherwise likely to have had to provide accommodation for a child), to ‘side-step’ that duty. For a council to side-step its duty, it must have given the carer enough information to allow them to give their ‘informed consent’ to accepting a child under a private fostering arrangement. To do this the carer must have known, because of what the council told them, the child’s parent would continue to be financially responsible. Without this informed consent, the council could not side-step its duty.
15. Friends and family (or kinship) foster carers can receive a fostering allowance and other practical support from the council.

Council Kinship Care Policy

16. To clarify which children might come within the definition of Children in Need, the Council has drawn up a ‘Threshold to Children’s Social Care Services’ document.
17. The Council may provide carers of children in need with support, including financial under section 17 of the Act. The status of the placement will determine the nature and amount of the financial support. There are different legislative provisions applying to financial support for children living with family or friends in looked after/adoption/special guardianship arrangements.
18. A family may make their own arrangements to care for a child within the family and friends network where the immediate family cannot care for the child.
19. The Council has no duty to assess any informal family and friends care arrangements unless it considers it necessary to do so to safeguard or promote the welfare of the child in need. This is a responsibility under section 17 of the Act, and it will assess the child’s needs and provide services to meet any assessed needs. After an assessment, a Child in Need plan is drawn up.

Special Guardianship Orders

20. Special Guardianship is an order made by the Family Court which places a child or young person to live with someone other than their parent(s) on a long-term basis. The person with whom a child lives will become their Special Guardian. They will have some, but not all, parental responsibility for the child. They will not have the same controls as looked after children, whose cases the council must keep under regular review.

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How I considered this complaint

21. I considered all the information Mr L sent on behalf of Ms M, the notes I made of my telephone conversation with him, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr L and the Council. I considered their responses. I have not shared all the information I received with Mr L and Ms M. This is because it contained details of third parties which needs to remain confidential.

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What I found

22. Ms M looked after her young niece, N, in April 2023 for three months (stay 1). While N lived with her, school attendance and behaviour improved. During this period, she claimed she sought financial help from the Council but was told N’s mother should provide it. The mother refused and N then returned to her care.
23. The Council found no social care records about stay 1. Children’s Services were not involved as N’s mother had called Ms M directly to ask her to care for her.
24. In November, the police contacted Ms M. She was asked to look after N. The notes of the police visit confirmed Ms M agreed to have her. The police drove N to Ms M’s house where she was left (stay 2).
25. The police made a ‘Children’s First Contact Service’ referral to the Council following the visit. There was agreement the case met the threshold for a Strategy Discussion. A Strategy Meeting (or discussion) decides whether the threshold has been met for a single or joint (with the police, for example) child protection investigation, and to plan that investigation. This type of meeting takes place when it is believed a child has, or is likely to suffer, serious harm.
26. N’s school also made a referral to the Council the same month. The Council held a Strategy Meeting which decided the threshold for Section 47 was met. It would be a single investigation. The records noted it would explore the family network with mother and who could provide respite for N. It would also explore if Ms M could give support.
27. The same month, the Council made a request for support from the Therapeutic Hub, a copy of which I have seen. This was because the plan was for N to return home. To achieve this, it gave support to N and her mother to help repair their relationship and build on her mother’s parenting skills. It made referrals for family therapy and a specialist support worker was assigned to support the mother with parenting. Drug and alcohol support was offered along with domestic abuse support, all of which were refused.
28. It was passed to the Assessment Service as a child protection threshold referral and a social worker was allocated to carry out a Child and Family Assessment.
29. In December, there was evidence of correspondence with a GP about a referral for family therapy and a call about a domestic violence course.
30. At the end of the month, there was a further referral to the Council as Ms M had called for advice. N was outside her house refusing to come in and said she wanted to return home to her mother. N wanted to go out, but Ms M refused to allow her as she was too young to celebrate New Years Eve due to her vulnerabilities. If N went out, the Council told Ms M to report her to the police as missing. If N was unhappy about the rules in Ms M’s home, she could talk to her social worker about it.
31. Ms M claimed N’s social worker told her to ‘hang on’ with N for the long term but Ms M was not told of any plans, despite asking. Nor was she told about meetings or given information. The Council explained this was complicated as it also had to be careful of sharing personal information.
32. An undated document recording a complaint discussion with a social worker noted, ‘Asked aunt to keep [N] in her care whilst restorative work was undertaken’. It also recorded, ‘Asked aunt to hang on whilst work undertaken’. The social worker no longer works for the Council.
33. Ms M believed N could not return home because of the incident to which the police were called. N stayed with Ms M until January 2024 when N and her mother wanted her to return home.
34. The Council confirmed N was a Child in Need who needed support services. It also confirmed, which is supported by the Strategy Meeting minutes, that its plan was for N to return to her mother’s care. It accepted it recognised N staying with Ms M for an interim period was a better way to support the restorative work needed to be completed by the family. It would not have started care proceedings, for example, had N wanted to return home at any point. There were no restrictions preventing her from going home.

My findings

35. I found the following:
1. There was no evidence, direct or indirect, of any Council involvement with the arrangement of stay 1. There was nothing to show the Council had a ‘major role’ in the arrangement or indeed any role. The was no evidence the Council placed N with Ms M under of its statutory duties. I am satisfied there was no fault by the Council on Ms M’s complaints about stay 1.
2. I considered what happened during stay 2. The police took N to Ms M’s home following a visit to N’s mother’s house and later told the Council. By the time the Council became aware of what had happened, N was already willingly accommodated by Ms M. I am satisfied, therefore, the Council had again played no ‘major role’, or any role, with the placement of N for stay 2.
3. I consider the Council had not been on the verge of providing accommodation for N at the start of stay 2 or at any point during it. This means I am not satisfied it had acted to ‘side-step’ that duty, by helping to make a private fostering arrangement. The courts stated that usually, ‘a private fostering arrangement will come about as a result of discussions between the proposed foster parent and either the child’s parent (s) or a person with parental responsibility’. On balance, I am satisfied the evidence shows the Council correctly decided this was a private fostering arrangement.
4. At some point during stay 2, the evidence showed the Council asking Ms M to hold on to N while restorative work was done. The undated complaint discussion record shows the Council asking Ms M to keep hold of N while this work was done. On balance, I am not satisfied this was evidence of the Council playing a major role in the stay 2 placement.
5. What I did find was the Council failing to make it clear to Ms M when she was asked to hold on to N that it decided this was a private family arrangement. Nor did it explain what that meant for her in terms of financial support, for example. I am satisfied this was fault and caused her some injustice. This was because it caused her uncertainty about her status which could have been avoided had the Council explained this to her promptly.
6. I found no fault on Ms M’s complaint about it failing to provide poor support while N was in her care. This is because the evidence shows the Council was, during the seven-week period of stay 2, trying to focus on restorative work with N and her mother. There was evidence of the Council sending a request to the Therapeutic Hub, for example.
7. I also found no fault on her complaint about the lack of care and planning. The evidence shows the Council had started a section 47 investigation and a Child and Family assessment.
8. I have also taken account of the difficulty for the Council caused by the need to not share all information with Ms M because of the need to keep some of it confidential to N and her mother.

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Agreed action

36. The Council agreed to carry out the following action within 4 weeks of the final decision on this complaint:
1. Send Ms M an apology for failing to explain as soon as it became aware that this was a private family arrangement and what the implications of that were for her.
2. Ensure officers are reminded of the need to promptly clarify, and set out to involved parties, when a private family arrangement is in place and to give information about its implications.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I found fault on the complaint made by Mr L on behalf of Ms M. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman