Summary: Mr X complains that the Council is acting unfairly in paying him and his wife a lower fee as family and friends foster carers than it would if they were non-connected foster carers. The Ombudsman finds that the Council is not paying them a lower fee because of their connection to the child, and so it is not at fault. The difference in fees is based on other criteria such as skills, training and the range of placements foster carers are available to take. There was fault in the way the Council described its policy before 2018 and in the information given to Mr X. The Council has agreed to apologise to him and clarify its position.

The complaint

1. Mr X complains that the Council is acting unfairly in paying him and his wife a lower fee as family and friends foster carers than it would if they were non-connected foster carers. He says the Council is failing to follow relevant law, caselaw and national guidance.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended)
3. 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)
4. If we are satisfied with a council’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)
5. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

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How I considered this complaint

6. I discussed the complaint with Mr X and considered the information he provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on payments for family and friends foster carers. I gave the Council and the complainant an opportunity to comment on my draft decision.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

8. The principle under the Children Act 1989 is that all children including Looked after Children should be cared for by their families or friends wherever possible. A council may fulfil its duty to accommodate a child by placing it with relatives or friends. That person is then considered as a ‘friends and family foster carer’. The council has to assess their suitability to care for the child and monitor the child’s welfare. The family member caring for the child is then entitled to receive a weekly fostering payment to help care for the child.
9. All foster carers receive a weekly fostering allowance aimed at covering the cost of caring for a fostered child. They may also receive a fee on top of the allowance to recognise their skills, training and experience.
10. The courts held in 2001 that all foster carers must receive the same allowances whether or not they are family and friends carers. (R v Manchester City Council 2001) (the ‘Munby judgment’). The judgment did not cover the fee element.
11. Statutory Guidance published in 2010, ‘Family and Friends Care’, says:

“Fostering services must deliver services in a way which ensures that family and friends foster carers…are not disadvantaged as a result of their prior relationship with the child…There should be equity of provision and entitlement. It is not acceptable to discriminate against foster carers on the basis that they have a pre-existing connection with the child they are fostering. Where a fee is paid it must be payable to those foster carers who meet the criteria set out for the scheme, including foster carers who are family or friends.”

12. This principle of non-discrimination against family and friends carers in financial support is also emphasised in the Fostering Services National Minimum Standards.
13. Since the Munby judgment, caselaw has established that it is unlawful to pay different fees to connected person foster carers because they are connected to the child, rather than on the basis of some other objective criteria. (R (on the application of X) v Tower Hamlets LBC 2013) (the ‘Tower Hamlets judgment’). The judgment said councils may need to adopt a different approach to assessing family and friends foster carers. But as long as the different criteria for payment “are genuine and reasonably related to the task of fostering children looked after by the local authority, and so long as family foster carers are not excluded from seeking to meet them, there is no reason why they should not be criteria which unrelated foster carers are much more like to satisfy.”
14. Following the Tower Hamlets judgment, the Council reviewed its policy on fostering fees and allowances with the aim of ensuring the level of fees paid was not dependent on whether the foster carer was connected to the child. The Council’s Fostering Procedures 2014, in place at the time Mr and Mrs X were approved as connected person foster carers, set out the fee structure for level 2 and level 3 carers as follows.
• Level 2 carers were ‘connected person foster carers’ who had been fully assessed and approved for fostering. They had to achieve the training, support and development standards for family and friends foster carers and should participate in the standard training for all foster carers.
• Level 3 foster carers had to have training in working with children and young people with particular needs, have certain qualifications, and demonstrate an ability to work with children with complex and challenging needs. The Council also expected them to write reports and be involved in legal processes.
15. The 2014 policy said a foster carer who wished to progress from level 2 to level 3 had to complete an assessment of skills. The assessment would consider whether the foster carer would be willing and able to foster other children.
16. All foster carers received the same allowance. Level 2 carers received £15 per week in fees. Level 3 fees were £138 per week.

What happened

17. Child B came into the Council’s care as a baby under an Interim Care Order in November 2017 as his parents were unable to care for him. Child B is the cousin of Mr X. Mr and Mrs X came forward as potential carers for Child B. The Council carried out a viability assessment and a connected person’s assessment. The Fostering Panel approved them as connected person carers for the child and placed him in their care in April 2018. The court granted a Full Care Order to the Council at the end of April 2018. The Care Plan was for Mr and Mrs X to seek a Special Guardianship Order in 12 months’ time.
18. The Council paid Mr and Mrs X a weekly allowance for the child and a fee of £15 per week as level 2 carers.
19. In April 2018 Mr X made a formal complaint to the Council about the level of fees it was paying. He said he and his wife should be receiving the same fee element as mainstream foster carers. He said he had received advice to support his case. He referred to caselaw and statutory guidance.
20. The Council’s response was that it was not penalising him for being a connected person care. It said the allowances it pays are the same as for mainstream foster carers.
21. Mr X was not happy with the response and took his complaint through the three stages of the children’s social care complaints procedure. He wanted the Council to increase his fostering fee to the same level as that paid to ‘mainstream’ foster carers, backdated to the date when Child B was placed with him.
22. In his stage 2 report, the Independent Investigating officer (IO) reviewed the law, caselaw and guidance referred to in paragraphs 10-13 above, as well as the Council’s fostering policies and procedures. He interviewed senior Council staff about the way the policy operates and the reasons for the difference in fees that apply to level 2 and level 3 carers.
23. The report made the following findings.
• The Council approves some foster carers for specific children. These are ‘connected person’ foster carers. They are paid a lower fee than ‘mainstream’ foster carers because they have not been approved to take any other placement. They can, however, go on to be assessed as mainstream foster carers and progress through the fee levels.
• Mainstream foster carers are approved at fee level 3 because they have demonstrated, through the assessment and approval process, that they are able to care for children with a range of ages and needs. This includes children with extra needs because of their disability or a history of abuse or neglect.
• Mr X was right to point out that if Child B had been placed with a ‘mainstream’ carer the carer would receive a higher fee than he did. But it was important to note that there is a difference between fostering allowance and fostering fees. Allowances relate to the child and are the same for both connected person and mainstream foster carers. Fees relate to the carer and reflect not just the fostering role they carry out, but the number and range of placements they can take because of their more intensive assessment and approval process.
• The reason the Council pays a lower fee to connected person foster carers is because in practice it is only connected persons who are assessed as carers for specific children only. If other carers were assessed for specific children only, they would also receive the level 2 fee. So Mr X receives the lower fee, not simply because he is connected to the child, but because he does not meet the criteria for a level 3 fee.
• The key question was whether the difference in fee levels can be justified on the basis of objective criteria, apart from whether the carer is a connected person, or whether it amounts to unfair discrimination.
24. The IO concluded:

“I take the view that the lower fee rate is paid to connected person foster carers not because they are connected to the child but because of the nature of their assessment and approval, which does not qualify them to care for other children on the Authority’s behalf as mainstream foster carers can.”

25. He did not uphold the complaint. However he found that the Council’s policy was “unclear and misleading” and “[did] little to dispel the impression that the [Council] discriminates against connected person foster carers”. He felt it was understandable that Mr X should question the different fee levels particularly when there was such a big difference in the fees.
26. The IO recommended that the Council should:
• revise its policy to make clear the reasons for the distinction between level 2 and level 3 fees; and
• discuss with Mr and Mrs X the possibility of assessing them as mainstream foster carers and progressing to level 3.
27. The Independent Person (IP) agreed with the IO’s conclusions.
28. The Council wrote to Mr X with its response to the complaint in mid-July 2018. It confirmed it agreed with the IO’s findings and recommendations. It said it would revise the wording of its fostering policy concerning fee levels and would ask Mr and Mrs X’s supervising social worker to contact them to discuss a possible assessment as mainstream foster carers.
29. Mr X felt the outcome of the complaint was not in line with the advice he had received and asked to go to stage 3 of the complaints process.
30. The stage 3 Review Panel hearing took place at the end of August 2018. Mr X attended, as well as the Council’s Head of Adoption and Fostering, the IO and the IP. After considering the complaint documents and hearing from those present, the Panel decided unanimously that the IO had carried out a “robust and detailed investigation based on the evidence available”. The Panel agreed that Mr X’s complaint should not be upheld. It said any further challenge to the distinction between the level 2 and 3 carers would need to be taken up through the courts. It agreed with the stage 2 recommendations and noted that Mr and Mrs X had expressed an interest in becoming mainstream foster carers.
31. The Panel’s report contained the following observations.
• The IO commented that if Child B was fostered by mainstream foster carers, these would be level 3 carers. The IO said this comment was based on the fact that there were no level 2 mainstream carers.
• The Council could assess connected person carers to be level 3 carers. But the Head of Adoption and Fostering pointed out that unlike level 3 carers, a connected person foster carer is only approved as a carer while the child remains in their care. So “if [Mr X] were to be successfully assessed as a level 3 carer, he would still be a connected person carer for [Child B] and therefore his fee for this would remain the same”.
• The IO stated that in practice connected person carers are only paid at level 2, whereas the starting level for mainstream carers is level 3.
32. In providing the final response to the complaint in late September 2018 the Council confirmed to Mr X that it agreed with the stage 3 findings and had now revised its fostering allowance policy and published it on the Council’s website.
33. Mr X complained to the Ombudsman because he still felt the fees were unfair. He said he provided the same care as a mainstream foster carer. Also he said the Council had told him that even if he and his wife became level 3 carers and had other children placed with them and received the level 3 fee for those children, the Council would still pay them only the level 2 for Child B because they were connected persons. He also questioned why there was such a large gap between the level 2 and level 3 fees.

Council’s response to enquiries

34. In responding to the Ombudsman’s enquiries, the Council explained why it considers its policy on level 2 and level 3 fees complies with the law, statutory guidance and the Tower Hamlets judgment. It said the Tower Hamlets judgment was based on the following facts:
• the council in that case paid fees only to mainstream foster carers,
• these payments were denied to connected carers because they were connected, and
• there was no provision for a connected person to qualify as a mainstream carer.
35. As the council in that case could not show the difference in fees was based on objective criteria, it did not allow for equal treatment between connected and non-connected carers.
36. The Council said its own policy and fee scheme is structured around the skills and availability of carers to meet the needs of a wide range of children of different ages and varying needs. It pays lower fees to connected person carers on the basis of objective criteria relating to the assessment process, qualifications, training, and the ages and range of children they could accept as placements. It was not simply because they were connected persons. So, if applying these criteria disadvantaged connected person carers, this did not make the policy unlawful or contrary to the guidance.
37. Regarding the large gap between the level 2 and level 3 fees the Council said it introduced the fees in 2013. It reviewed the fostering payment policy following the Tower Hamlets judgment. But it said it could not find any documents explaining the reasons for the large difference between the two levels of fees. Also there were no staff involved in the review who were still employed at the Council who could provide any further information.

Analysis

38. I agree with the stage 3 Review Panel that the stage 2 investigation was thorough and detailed. It reviewed relevant law, guidance and policy and interviewed relevant officers. It identified the key question at the heart of the complaint and explained the reasons for its conclusions. The Review Panel’s report shows that it gave Mr X a fair opportunity to put his case and it considered the submissions from both sides. It explained its decision not to uphold the complaint and made an appropriate recommendation for the Council to clarify its policy. The Council carried out the recommendation and placed the revised policy on its website. So I do not find fault in the way the Council dealt with Mr X’s complaint.
39. In my view the 2014 policy was flawed before the Council revised it following the Review Panel’s recommendations. This is because it defined a level 2 carer in terms of being a ‘connected person’ carer. So it appeared to be distinguishing between different types of foster carers, receiving different levels of fees, partly based on whether they had a prior connection to the child.
40. The 2018 policy, revised following Mr X’s complaint, says level 2 carers are those:
• “who have been fully assessed as having the skills and abilities to care for a specific child/ren” and have been approved for fostering.
41. The requirement for training and development is as set out in the previous policy. The requirements for level 3 carers are also similar to those set out previously.
42. So the Council has now removed the reference to ‘connected persons’ from the definition of a level 2 carer.
43. Also in response to the Ombudsman’s enquiries, the Council has now confirmed that, contrary to what it said before, it is not true to say that if Mr and Mrs X were to be successfully assessed as level 3 carers, and had other children placed with them, they would receive level 3 fees for the other children only. It is not the case that they would continue to receive a level 2 fee for Child B because he is connected to them. The Council has clarified that if it were to assess Mr and Mrs X as level 3 carers they would receive the level 3 fee for all children placed with them, including a connected child.
44. It is not for the Ombudsman to make definitive rulings on the law. That is a matter for the courts. But I am satisfied with the Council’s explanation that the different fee levels are based on factors other than whether the foster carer is connected to the child. It has now amended the wording of its policy so it reflects this principle. I do not find that the Council is at fault in failing to follow the law and guidance in the way it distinguishes between level 2 and level 3 carers. I agree with the Review Panel that any further challenge to the policy would need to be made through the courts.
45. However I find that the Council was at fault in the way it described level 2 carers in its policy before 2018 and in the information it provided to Mr and Mrs X. This has been confusing for them. But there is no evidence it has caused them any practical disadvantage as they have not been approved as level 3 carers and so have not been wrongly denied any financial support.
46. The difference in the level 2 and level 3 fees is intended to reflect the difference in the requirements and expectations for the carers at each level. Mr X is still concerned about the large gap between level 2 and level 3 fees. The documents the Council has provided show it introduced the £15 fee for level 2 carers as an interim measure in 2013. Following consultation it approved the £15 fee in 2014. The Council has not increased the fee since then. However there is no requirement for councils to pay fees at all. I am not aware of any guidance on how much they should pay if they decide to do so, other than the requirement not to discriminate on the basis of being a friends and family carer. My understanding is that the Council has not increased the fees for level 3 carers either. It is not for the Ombudsman to tell councils what fees to set. I do not consider there is any basis on which the Ombudsman could criticise the Council for the large difference in the amounts paid.

Agreed action

47. The Council has agreed to write to Mr and Mrs X within one month of the decision on this complaint to:
• apologise for any confusion caused by giving them incorrect information about the fees potentially available to them; and
• clarify that if they were successful in becoming level 3 carers and had other children placed in their care, they would receive the level 3 fee for all the children, including Child B.

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Final decision

48. I have found that the Council was not at fault in the fees it paid to Mr and Mrs X. Its policy before 2018 and the information it gave them about the fees was flawed. The Council has agreed to take suitable action to remedy any injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman