The Ombudsman's final decision:
Summary: The Council’s decision to end A’s placement with Mr C and Ms T was not fault. However, there was some fault with how it managed a difficult situation when she refused to return home. The Council agreed to pay Mr C and Ms T a maintenance allowance for the extra time A was with them, which was suitable remedy
- Mr C and Ms T are foster carers and their complaint concerns Kent County Council’s actions when they cared for a child (who I will call A) between 15 December 2015 and 13 January 2016. They believe the Council was unreasonable when it told them they should call the police to take A home, after she refused to go. They are also unhappy about the Council’s decision not to pay them a fostering allowance from this point.
- Mr C and Ms T felt the Council had not explained what they did wrong in this case, and how they should act if a similar situation arises in future. They were seeking clarification on this, improvements in the Council’s procedures and practice, and payment of the fostering allowance for the period in question.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended
- The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The Council must use this procedure for complaints made by children and young people. In some case, this procedure can also be used by parents, foster carers and others specified adults, for complaints relating to a child. However, if the complaint is not about services to a child, councils can respond through their corporate complaints process. The Ombudsman usually expects councils to complete the complaints procedure before complainants come to us. However, complainants can approach the Ombudsman at any time in the procedure and we will consider the individual circumstances when deciding whether to accept a complaint earlier.
How I considered this complaint
- I discussed the complaint with Mr C and considered the information he provided.
- I reviewed the documents the Council sent for my investigation, including the Children’s Service and Fostering Team records and the correspondence on Mr C and Ms T’s complaint.
- I took account of relevant legislation and guidance.
- I sent a draft decision to the Council and Mr C for comments.
What I found
- The Children Act 1989 (“the Act”) sets out the duties of councils towards children. Section 17(1) states that councils have a duty to safeguard and promote the welfare of children who are in need and, so far as is consistent with that duty, to promote the upbringing of such children by their families. If a council has reason to believe a child is at risk of significant harm, it must complete an investigation under section 47 of the Act. It must then decide whether the concerns are substantiated and what action is required to safeguard the child.
- Section 20 covers the provision of accommodation for children in need. This includes when the person who has been caring for them cannot, or will not, provide suitable accommodation or care (whether or not this is permanent) and when the council considers that accommodating a child is necessary to safeguard or promote their welfare. In these cases, the child will become ‘looked after’ under the Act. Section 20 does not give the council parental responsibility for a child.
- Councils cannot accommodate a child under Section 20 if a person with parental responsibility objects to this and is able to provide accommodation. (Children Act 1989, s 20 (7)) However, they can do so if the child has reached the age of 16 and agrees to be accommodated. In these cases, the council must be satisfied that the welfare of the child will be seriously prejudiced if it does not provide accommodation. (Children Act 1989, Section 20 (3))
- When a child becomes looked after, councils can arrange accommodation with a foster carer. The child must have a care plan, which is created by their social worker and overseen by an Independent Reviewing Officer. The care plan must take account of the child’s wishes and feelings. Foster carers play an important role in supporting the child and sharing information about their welfare for the plan. However, it is for the child’s social worker and Children’s Services managers to make decisions on how to work with the child, in consultation with their parents.
- Foster carers are supported in their role by a supervising social worker. They receive a fostering allowance, which is intended to cover the expenses of caring for a child. They can also receive other financial support, including a fostering fee, to reflect their skills and professional role. The Council pays a standard maintenance allowance of £224 per week to foster carers for children aged sixteen and over. It also pays an additional fee (the ‘Reward Element’), which is £206.29 per week.
- The Council approved Mr C and Ms T as foster carers in October 2014.
- In early November 2015, the Council placed A with them under a Section 20 agreement. A was 16 years old at the time and had made allegations of abuse against her mother and step-father. The Council decided she should go into foster care for a short period (around two weeks) while the social worker investigated the allegations and looked into supported housing options for her. A’s mother had given consent on this basis.
- Following a Section 47 investigation, the social worker concluded the allegations were not substantiated and A was not at risk of significant harm. It also emerged that, due to A’s immigration status, she had no recourse to public funds. This meant she was not entitled to housing benefit to cover the cost of supported accommodation. A’s Independent Reviewing Officer suggested she should get legal advice about her immigration status and options.
- On 30 November A’s mother said she wanted her to come home. The social worker explained that A was not currently willing to consider this. Her mother agreed she could stay with foster carers for two more weeks while the social worker arranged a meeting and mediation between them.
- On1December senior Children’s Services managers decided the Council could fund A’s foster placement for two more weeks but no longer. This was on the grounds that, having established there were no safeguarding issues, it would be unlawful to keep A in foster care without her mother’s consent,. The Council’s plan was to support A to move back home and then continue to work with her and her family.
- The social worker visited A the next day to explain the plan. A was distressed and said she was scared to go home. Ms T told the social worker she did not think it would be good for her to go home, as she could be at risk. She said she would support A to get legal advice.
- Mr C and Ms T discussed the situation during their supervision with their social worker. She explained the Council’s responsibilities and the constraints of Section 20. However, she said she would ask A’s social worker about what family work would take place before she went home.
- A was not willing to meet her mother for a mediation session. Her mother was also not prepared to take time off work for this. By 15 December, when A was due to go home, no mediation work had taken place. Meanwhile, A visited a solicitor, who advised her she could agree to stay in foster care without her mother’s consent and the Council could not make her go home.
- On 15 December, A’s social worker told Mr C and Ms T that her mother had withdrawn consent for the Section 20 placement so she would need to leave. He went to collect her from their property. The Independent Reviewing Officer was present and aware of the situation but left when the social worker arrived. A became very upset and refused to leave. Mr C and Ms T declined to become involved in persuading her because they felt they needed to stay neutral.
- The social worker contacted a manager for advice. He then told Mr C and Ms T that the Council had to end the placement that day and, if they were not prepared to make A leave, it would become a private arrangement and they would no longer receive any fostering allowance. Mr C and Ms T said A could stay with them, though they did not concede it was a private arrangement.
- The social worker told A’s mother, who was very upset and said she would call the police if A did not come home within 24 hours.
- The Council sought legal advice and maintained its position that it could not continue the Section 20 placement for A if there was no safeguarding risk to prevent her returning home. From 16 December, A was no longer a looked after child and the Council stopped Mr C and Ms T’s fostering allowance.
- A new social worker took over from this point and visited A over the following days to introduce herself explain why she must go home. However, the Council did not take any action to force A to return and arranged contact with her siblings on 31 December. Mr C and Ms T continued to care for A as before. They did not have any contact with her mother and she did not take any further action to bring her daughter home. However, she told the social worker she wanted her to come back as soon as possible.
- On 30 December the social worker spoke to Ms T and re-stated the Council’s position. Ms T said she did not agree with the plan for A to go home without mediation work first. The social worker raised the option of calling the police to take A home and said she and her manager could come to support Ms T and Mr C with this. However, they were not comfortable with calling the police, which they felt went against the values of their role as foster carers for A. The social worker and her manager visited A with Mr C and Ms T on 6 January to explain why she needed to go home and to persuade her to agree to a meeting with her mother.
- Mr C and Ms T contacted their supervising social worker to express their concerns about how the Council was managing the situation. Following their supervision in January, she recorded that they understood they needed to work with the department and they supported the idea of A going home, but felt there should be more work with her and the family first. The supervising social worker agreed with this and said they should be paid while A was with them. She raised these matters with A’s social worker and managers. She also gave her view that it was not their role to call the police and that, had they done so, she would have been concerned and would have referred the matter to the Council’s fostering panel for review. The Fostering Team Manager asked senior managers to reconsider the payment of fees, but they did not change their position.
- The social worker started the mediation work with A and her family, including a meeting between A and her parents at home, which the supervising social worker also attended. A reluctantly agreed to go home on 13 January. The social worker collected her from school rather than Mr C and Ms T’s home. She was able to leave A with her family but continued to monitor the situation and work with them through a child in need plan. Mr C and Ms T feel that, if the Council had arranged the family work as planned, before trying to make A go home, it could have avoided placing them in such a difficult position.
- Mr C and Ms T complained about what had happened through their supervising social worker, who passed this on to managers in January. After receiving no response, she followed this up in May. In July, Mr C and Ms T made a formal complaint and the Fostering Team Manager invited them to a meeting. They discussed their concerns and the manager explained why the Council had taken its position. However, she agreed to speak to the Assistant Director about the payments. After doing so, she sent a formal response in September. This stated that the placement ended when A’s mother withdrew consent and the concerns did not meet the threshold to make her a looked after child against her parents’ wishes. The Council accepted it should have put the mediation in place sooner and apologised for the poor support and direction they had received at the time. However, it did not agree to pay Mr C and Ms T any fostering allowance.
- Mr C and Ms T said they wanted to take their complaint further. The Council said that, as it had mainly upheld their complaint, it did not see what could be achieved by escalating the complaint to the next stage of the process. It suggested an early referral to the Ombudsman, which Mr C and Ms T accepted.
- Mr C and Ms T are still foster carers for the Council. However, they say the circumstances surrounding the end of A’s placement had an emotional and financial impact. They want to understand the Council’s procedures for such cases, what they did wrong and how the Council will ensure nothing similar happens again.
- Following the Ombudsman’s enquiries, the Council agreed to pay Mr C and Ms T the maintenance allowance for the four extra weeks A was with them, which is £896 in total. However, it is not willing to pay them the fostering fee for this period. This is on the grounds that it told them it could not legally continue the placement and made it clear they would not be paid if A stayed with them. The Council is also concerned that Mr C and Ms T did not support the social worker to facilitate A’s return home so, in this regard, it says they were not fulfilling their professional role. The Assistant Director has offered to meet Mr C and Ms T if they would like to discuss how to deal with a similar situation in future.
- After A’s mother withdrew consent for Section 20 accommodation, the Council could only legally maintain her foster placement if it had reason to believe there would be a safeguarding risk if she returned home. As the safeguarding investigation had not established this, the Council’s decision to end her placement was not fault.
- However, when A refused to go home, the Council and Mr C and Ms T were in a very difficult situation. The Council could not lawfully maintain the placement but A was also a vulnerable young person, showing signs of distress. The problems were exacerbated by the delay in the mediation work. While this was due to A and her mother’s unwillingness to engage, the Council has accepted it could have done more to put work in place before telling A to go home.
- The evidence indicates that Mr C and Ms T made it known to the social worker and A that they did not agree with the plan for her to go home without this work. While they were considering A’s welfare and best interests, this was a decision for the social worker and managers to make. Their role as foster carers was to support the care plan and there was a clear instruction from senior management that A needed to go home. The Council was not at fault for expecting them to support its position.
- However, calling the police was an extreme measure and I can understand why Mr C and Ms T were uncomfortable with this. If the Council felt this was required, it was the role of the social worker, not the foster carers. While the social worker and manager offered to support Mr C and Ms T if they called the police, it is not clear why they did not take responsibility for this directly or suggest collecting A from school instead. This could have reduced the pressure on Mr C and Ms T.
- The difference of opinion between professionals was not helpful to Mr C and Ms T, as they received mixed messages. A’s social worker suggested they call the police but their supervising social worker said she would have reported them to the fostering panel if they had done this. The Council should have given consistent advice to Mr C and Ms T and supported them to follow the care plan.
- Therefore, I have found some fault with how the Council managed this situation, which made it more difficult for Mr C and Ms T. While it was their choice to keep A, this was partly because the alternative was so distressing. The Council has accepted that it should have given them better support during this period. Given the emotional and financial consequences for Mr C and Ms T, I consider the fault caused them injustice.
- Having taken account of all the evidence, I agree the Council’s offer to pay Mr C and Ms T the maintenance allowance for the four weeks in question is a reasonable settlement. They were clearly doing what they felt was in A’s best interests in a situation not wholly of their making, and they provided for her from their own funds to avoid her experiencing the distress of being forced to go home. However, they were not fully complying with their professional role and responsibilities during this period, as their actions went against the care plan.
- There is no formal procedure for dealing with the situation Mr C and Ms T experienced. Legislation and statutory guidance set out the general principles which social workers and foster carers must follow to support children in care. (Children Act 1989, Fostering Services Regulations 2011, Fostering National Minimum Standards 2011, Care Act 1989 Guidance and Regulations, Volume 2 (2015) and 4 (2011)) I would expect Mr C and Ms T’s supervising social worker to offer them guidance about how to approach similar situations, which they can explore through supervision meetings and relevant training, as part of their ongoing development. However, given the decision in this case came from the Assistant Director, it may be helpful for them to meet with her.
- The Council was slow to respond to Mr C and Ms T’s complaint. This was fault but the Council apologised. It could have responded through the statutory complaints procedure, as the matters related to a child. However, as the key issue was about the direct impact of its actions on Mr C and Ms T, it was appropriate to use the corporate complaints procedure. While the Council did not complete the full process, it gave a detailed response at stage 1 and Mr C and Mr T agreed to the early referral to the Ombudsman, so I have not found fault here.
- The Council will pay Mr C and Mr T £896 to cover the maintenance allowance for the extra four weeks A was with them.
- The Assistant Director will meet Mr C and Ms T to discuss their outstanding questions, if they wish to take up this offer.
- I identified some fault in how the Council managed the end of A’s placement with Mr C and Ms T, which caused them injustice.
- The Council has offered a suitable remedy, so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman