Summary: Mrs X complained the Council reduced its payments to her when her care of Y changed from being foster care to a “staying put” arrangement. The Council failed to provide adequate information about the staying put arrangement so Mrs X could make an informed choice about caring for Y on this basis before he turned 18. There were also faults with the assessment of Y’s needs as a young adult. The Council should pay Mrs X £1,000 to remedy the injustice caused and make changes to its processes.

The complaint

1. Mrs X complained the Council reduced her payments when Y reached age 18 and the care changed from being foster care to a “staying put” arrangement. She also complained the Council had not fully involved her in the planning process.
2. Mrs X says she has suffered a considerable financial loss as a result.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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, section 34(3), 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)

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How I considered this complaint

5. I spoke to Mrs X and considered the information she provided.
6. I considered the Council’s replies to my enquiries.
7. I considered relevant law and guidance, and relevant Council’s policies, as set out below, and our guidance on remedies.
8. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education Health and Care (EHC) plans

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them. An EHC plan may continue until the young person is aged 25 years.

Looked after children

10. A looked after child (LAC) is any child who is subject to a care order and is in the council’s care. The council must safeguard and promote the child’s welfare and provide whatever services it considers are reasonable. To achieve this it should ensure the child has a care plan, which it must keep under regular review.
11. The council should appoint an independent reviewing officer (IRO), whose role is to oversee the council’s role as a corporate parent and ensure it is meeting the child’s needs.
12. The child may be placed with council-approved foster carers. The council should ensure the foster carers have sufficient training and support to meet the child needs and it should carry out regular reviews of the care provided.
13. The council will pay the foster carer an allowance to cover the cost of caring for the child. Government guidance sets out the minimum allowance the council can pay, depending on where the child lives and how old they are. The minimum rates are updated each year. Additional payments can be made if the child has specific needs or the foster carer has certain skills.
14. This Council paid a fostering allowance in line with guidelines. It also paid a mileage allowance for taking young people to school or college or to enable them to access the community. In addition, it paid allowances for birthdays, Christmas and holidays.
15. It also has a foster care plus scheme that pays an enhanced fee for foster carers with additional training who are caring for children with complex needs or who need a higher level of care.

Transition from children’s services to adult social care

16. When a child reaches age 18 they are legally an adult and responsibility for meeting their needs moves from the council’s children services to its adult services. The legal basis for assessing their needs changes from the Children Act 1989 to the Care Act 2014. However, councils can decide to treat a children’s assessment as an adult assessment and can also carry out joint assessments.
17. Statutory guidance says transition assessments should begin when the council can be reasonably confident about what the young person’s needs for care and support will look like when they turn 18. However, for a young person with an EHC plan, the process should begin in year 9. The purpose of the assessment is to provide the young person and their family with information so they know what to expect in future and can prepare for adulthood.
18. The council must involve the young person in the assessment and should consider whether they need an advocate to fully participate. It should also involve anyone else the young person wants to involve, such as their carer. Care leavers will also have a personal adviser to provide support, who should also be involved in the transition planning.
19. The assessment must identify all the young person’s needs for care and support, and identify the outcomes the young person wishes to achieve. The assessment should also consider whether the carer is able to continue in their caring role after the young person turns 18.
20. The guidance says professionals should work together to share information and build new relationships in advance of transition from children’s to adult services. It also says councils should have a clear understanding of their responsibilities, including funding arrangements. “Disputes between different departments within a [council] about who is responsible can be time consuming and can sometimes result in disruption to the young person or carer”.
21. After completing the transition assessment, the council must give an indication of which of their needs are likely to be “eligible needs” under the Care Act 2014, and which are not. This is so they and their carers can understand the care and support they are likely to receive and can plan accordingly. For those needs that are not eligible the council must provide information and advice on how those needs can be met.
22. If transition assessment and planning is carried out as it should be there should be no gaps in the provision of care and support. However, if adult care and support is not in place when the young person turns 18, the council must continue providing the services under children’s legislation until it is in place or until it decides the young person does not have “eligible needs”.

Staying put arrangements

23. Staying put guidance says councils may choose to extend foster placements beyond the age of 18. All councils must have a policy in place to ensure transition from care to independence and adulthood is based on their needs and not on age alone. For some young people with complex special educational needs (SEN) or care needs the council may decide the best way to meet those needs, even after they have turned 18, is through its children’s services and the legislation allows for this to happen. However, children and adults’ services must still work together and agree that children’s services should continue after age 18.
24. Staying put guidance says policies on staying put should set out “whether additional allowances provided when the child was a foster child to ensure they were embedded in the family will continue, for example holiday allowances, birthday and Christmas/festival allowances”.
25. This council’s staying put policy (March 2015) says a young person can stay in their foster placement after age 18 if this best meets their needs and the foster carers agree. Staying put should be identified within the young person’s pathway planning process no less than 12 months before they turn 18. The Council should consider whether the young person’s needs would be better met via the shared lives scheme if their level of need requires support from adult social care. The Council should give the young person and their carer information about the staying put agreement and how it differs from a foster placement so both parties can make an informed decision. The staying put arrangement will usually end when the young person is 21 but may end sooner.
26. The government does not set minimum payments for carers when the young person they are caring for is over 18. This Council sets the fee for staying put carers at £321.44 per week, which is reviewed annually in line with fostering allowances. It also makes a payment to the young person on their birthday and at Christmas.

What happened

27. Mrs X cared for Y as a foster carer for several years. In October 2017 the Council started thinking about transition arrangements. Its records show its preferred option was for Y to remain with Mrs X. If this was not possible, it considered Y needed specialist supported accommodation.
28. In November 2017 the Council asked Y what he wanted to do when he turned 18 and he said he wanted to stay with Mrs X because he felt he was too young to live on his own.
29. The records show there was a discussion with Y and with Mrs X in January 2018 about staying put but it is not clear what information was shared with them at that point.
30. In February 2018 the Council completed a pathway plan and in March it began work on a joint children’s and adult social care assessment.
31. In early April 2018 Mrs X told the Council she wanted Y to stay with her but with the same financial arrangements as she had as a foster carer. The record showed Y’s social worker and personal assistant were worried he would not manage a semi-independent placement due to his needs and vulnerability. They felt he needed a lot of support and struggled to implement things without prompts.
32. In late April a manager authorised a joint assessment. This recommended that Y stayed with Mrs X for a further 12 to 18 months.
33. The records noted the staying put allowance was £321.44 per week, which was considerably less than Mrs X was paid as a foster carer. In late May 2018 the Council decided it would not continue to pay Mrs X at the level she was paid as a foster carer if she continued to care for Y after age 18. Its records show it was worried this would set a precedent for other carers.
34. Mrs X told the Council she was disappointed with its decision, which she did not feel reflected Y’s complex needs or her own experience and training. She said it was not fair to expect her to continue doing the same work for less money.
35. In view of Mrs X’s concern about the financial arrangement, the Council began exploring the possibility of a shared lives placement in July 2018. It did not identify a suitable placement.
36. In August 2018 Mrs X agreed to continue to care for Y and a staying put agreement was sent to her. Mrs X felt it was in Y’s best interests to stay with her and she wanted to provide security for him as he was very anxious about what was going to happen. Despite agreeing to continue to care for Y, she was not happy with the financial package or the level of consultation with her and made a formal complaint.
37. The Council responded that it had carried out a joint assessment of Y’s needs and agreed he should remain with Mrs X on a staying put arrangement. It said Mrs X had attended various meetings where this was discussed and apologised if she felt she was not listened to. Although it said she could ask it to consider the complaint further at stage 2 of its complaints process, it later refused to do so because it said the complaint was about its policy.
38. Mrs X met with Council officers in November 2018. She says the officers agreed the staying put policy was not suitable in Y’s case. The Council wrote to Mrs X after the meeting. It said:
• it was reviewing its Fostering Plus and staying put policies in light of the “disconnect” between them that Mrs X had identified;
• there was a difference between children’s and adults’ legislation, and it needed to be accountable for public expenditure;
• it was prepared to offer a staying put allowance of £500 per week pending a further adult assessment of Y’s needs that it expected would be concluded within three months, at which point the allowance would be reviewed.
39. In a further email the following day the Council said if Mrs X did not accept the financial position offered it would consider alternative options for Y. Mrs X accepted the offer whilst the Council carried out its reassessment. The £500 per week payment was considerably less than the Council had paid Mrs X as a foster carer. She also lost out on other allowances, including those paid on Y’s birthday, at Christmas, and his holiday allowance, and she was no longer paid a mileage allowance for taking him to places in her car.
40. The Council’s head of children’s services wrote to Mrs X in July 2019 after the completion of the reassessment. He said it was clear from the reassessment that Y wanted to remain living with Mrs X and that she met all of his needs. He was “somewhat surprised however by the outcome of the assessment”, which was that as Y’s needs were being met the adult social care case would be closed. His view was that Y’s “needs are only being met because of the commitment [Mrs X and her husband] have both made to him and due to the work you have undertaken with him and on his behalf. If you were not there for him, I have little doubt that [Y] would enter into some level of crisis”. He went to say that when he met Mrs X in November 2018 he had expected “considering the level of need” Y had that he would be eligible for support from adult social care and that part of his support package would be provided by them but “this will not be the case at this point”. He said he shared Mrs X’s concerns that “if we do not continue to support [Y] that he will enter Adult Services under crisis, which is clearly not in his best interests, is avoidable and not what any of us want for him”. He proposed to continue to pay £500 per week, which “would sit outside of our usual “staying put” agreement, which we all acknowledged was not suitable in this circumstance due to [Y’s] complex needs”.

Allowances and expenses

41. In addition to the fostering payments, the Council paid Mrs X mileage expenses for assisting Y to access the community, for example, to attend swimming lessons and galas. It also paid her an allowance for his birthday, Christmas and holidays. This enabled Mrs X to treat Y as part of the family and include him in family holidays, outings and celebrations.
42. As a staying put carer the Council paid Mrs X a mileage allowance for taking Y to a work experience placement but does not pay a general mileage allowance for her to take him to activities, such as swimming. The Council says Y has now passed his driving test and has his own car so no longer needs Mrs X to assist him to access the community.
43. Now Y is 18 the Council pays the birthday and Christmas allowance directly to him. Mrs X says Y still expects her to buy presents for him as a member of the family but now she has to fund this herself.
44. The Council does not pay an allowance for holidays. It says now Y is an adult he can make his own choice about holidays and can fund these himself if he chooses to do so. Nor does the Council fund respite for Mrs X now she is a staying put carer. It says in its view Y can meet his own needs, which would include managing on his own if Mrs X went on holiday without him. However, it says if Y needed additional support when on his own it could provide this either by providing temporary accommodation or by allocating a personal budget that Y could use to arrange his own care.

Findings

Consultation with Mrs X

45. Mrs X complained the Council had not fully consulted her when planning for Y’s transition. The records show Mrs X was invited to all key meetings and her views are recorded. However, as Y was approaching age 18 the Council was treating him as an adult and that meant using an advocate to assist him to participate in the process rather than relying on Mrs X’s views as his carer. It was appropriate for the Council to do this and to seek Y’s consent before sharing documents, such as the needs assessment, with Mrs X. The Council was not at fault.

Information about staying put

46. The staying put guidance says councils should give carers sufficient information about the staying put agreement and how it differs from a foster placement so they can make an informed decision about whether to continue to care for the young person on that basis.
47. Although the Council consulted Mrs X and provided general information about staying put arrangements, it did not tell Mrs X its initial decision about funding until early June. By August 2018 when Y turned 18 the Council had not identified an alternative placement in case Mrs X decided not to continue caring for him. There was a period of further negotiation which resulted in an agreement about fees in November 2018, pending a further adult needs assessment.
48. The Council’s failure to resolve the financial package by August 2018 was fault. This fault caused Mrs X distress and uncertainty because she was committed to Y and did not want to disrupt his progress but was also uncertain about the financial implications for her.

Needs assessment

49. The Council carried out a joint needs’ assessment in May 2018 and a further adult needs’ assessment in July 2019. There was some disagreement between the children’s and adults’ teams about Y’s level of need, which was acknowledged by the Council in its letter to Mrs X in July 2019.
50. The adult assessment did not reflect all the needs Mrs X says Y had and which the children’s team had previously assessed. For example, it said Y was fully independent in the areas of managing nutrition and being appropriately clothed, although Mrs X says Y is not able to go into a shop on his own. It also does not reflect his high anxiety and developmental delays due to early childhood trauma that had led to the increased fostering payments before he turned 18. As a result, his needs were not fully reflected in the assessment.
51. Having identified some modest eligible needs, the assessment effectively said these needs were met by Mrs X as a staying put carer and therefore did not need funding by the Council. The needs assessment should have considered what needs Y would have if Mrs X was not caring for him and an alternative placement was needed. This would provide a more accurate record of his eligible needs that the Council had to ensure were met.
52. There was fault with the needs assessment because it did fully reflect Y’s needs nor the fact that, at the time of the assessment, it was not certain those needs would continue to be met by Mrs X.
53. This fault did not cause an injustice to Y as his needs have continued to be met by Mrs X. It caused an injustice to Mrs X as it may have affected the financial package offered to her. It also caused her uncertainty because it did not make clear what support Y would need if Mrs X was not available to care for him, for example, if she went on holiday without him.
54. It was open to the Council to continue to pay Mrs X the same financial package after Y turned 18 that it had paid before, particularly given it said it would be detrimental to Y to move. The Council does not appear to have considered this option and that was further fault.
55. It is not my role to say how much the Council should pay Mrs X to care for Y. The Council should assess Y’s needs and allocate a sufficient budget to ensure his needs are met. In this case the Council’s children’s team identified a high level of need, which included the need to feel part of a family. On this basis Mrs X was encouraged to treat Y as a member of the family and include him in holidays and family celebrations and so on. If the Council did not consider Y needed this level of care as a young adult it should have clearly explained this to Mrs X and to Y. I have not seen evidence to show it did so. This lack of clarity about Mrs X’s ongoing role as a staying put carer has contributed to the difficulty in resolving concerns about what it should pay her to care for him.

Allowances and expenses

56. The Council should be clear about what it will and won’t pay to staying put carers. It should set this out in its staying put policy. Where there are cases that do not fit the usual policy, the Council should explain to the carer what it will and won’t pay for.
57. The Council pays birthday and Christmas allowances to Y now he is an adult and this is set out in its staying put policy. This was not fault.
58. The Council says it does not make a payment for holidays. However, the staying put policy is silent on this and this is fault.
59. The Council does not arrange respite care for young adults but says it will consider whether Y needs additional support when he is left on his own. This is appropriate.
60. It does not pay a mileage allowance unless the young adult needs support accessing the community. This is appropriate. It does not consider Y needs such support because he can now drive and has access to a car. However, that was not the case when he was first assessed and the failure to address this need then was fault.
61. I am not satisfied on the basis of the information seen that the Council clearly explained to Mrs X the different basis on which she was caring for Y once he turned 18 and what it would and would not pay for under that new arrangement. This was fault.

Complaints handling

62. There was some confusion about whether Mrs X could have her complaint considered at stage 2 of the Council’s complaints process. Although the complaint does involve concerns about a Council policy I consider the Council could have considered the complaint at stage 2 in this case because Mrs X was asking it to exercise discretion to depart from the policy and the Council should always be willing to consider doing so in exceptional circumstances. The failure to consider her complaint at stage 2 was fault but this has not caused Mrs X as injustice as she was signposted to us and we have carried out an investigation.

Agreed action

63. The Council will, within one month of the date of the final decision:
• Apologise to Mrs X for failing to provide adequate information about the financial package for the staying put arrangement so she could make an informed choice before Y turned 18, failings in the needs assessment that may have impacted on the financial package offered, and failing to clearly explain the changes to her role when she became a staying put carer for Y;
• It should pay her £1,000 for the distress and uncertainty caused by these faults and the long delay in resolving the matter;
• Reimburse her for any mileage costs not paid prior to Y having a car to drive himself to activities, such as swimming.
64. The Council will, within three months of the date of the final decision:
• Carry out a fresh needs assessment for Y to clarify his current eligible needs. These may have changed since the earlier assessments as a result of Mrs X’s support in developing his independence skills. It should consult with Mrs X as part of that assessment;
• Meet with Mrs X to explain its expectations regarding Y’s future care in light of the updated needs assessment and to clarify what it will pay her;
• If the basis on which it expects Mrs X to care for Y changes as a result of the needs assessment and discussions with Mrs X, the Council should explain this to Y so he understands what is changing and the reasons for the changes;
• Review its staying put policy to ensure it clearly sets out what it will and will not pay staying put carers and how this differs from arrangements for foster carers;
• Remind relevant staff of the need to start planning for transition to adulthood at least 12 months before the looked-after child turns 18 and ensure that carers are given sufficient information to make an informed choice about whether to continue to provide care on a staying put basis;
• Review its complaints process to ensure it does not exclude complaints where a person is asking the Council to exercise its discretion over how to apply a policy or when to depart from it.

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Final decision

65. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy the injustice and prevent recurrence of the fault.
66. 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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Investigator's decision on behalf of the Ombudsman