Summary: Mr and Mrs W complained the Council failed to treat them appropriately as specialist carers rather than as foster carers. They said the Council failed to address their concerns. The contract they signed with the Council allowed flexibility of interpretation and the investigation has found no evidence of fault.

The complaint

1. The complainants, whom I shall call Mr and Mrs W, say the Council failed to treat them appropriately as Special Educational Needs and Disability (SEND) Specialist Carers.
2. When Mr and Mrs W made complaints about this, they felt the Council failed to address them properly.

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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. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended) We consider the Council as a corporate body rather than looking at the actions of individual officers.
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I considered the information submitted with Mr and Mrs W’s complaint and spoke to Mrs W on the telephone. I made enquiries of the Council and assessed its response and made contact with other SEND Specialist Carers to seek their views of the service they received from the Council. I sent the Council and Mr and Mrs W a copy of this draft decision and took the comments they made into account before issuing a decision.

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What I found

8. Mr and Mrs W had been foster carers with the Council for some time; offering respite care for disabled children. An opportunity arose for them to become SEND Specialist Carers in April 2015. This put them on a slightly different footing as they would be independent of the Council in terms of their employment, as they had to set up their own business, even though they would be covered by the Council’s liability insurance. Mr and Mrs W would continue offering respite care, through this service, and they would be available to the Council to accommodate children year-round.
9. Mr and Mrs W signed a contract committing them to providing care for 218 ‘sessions’ each year (a child needing ‘additional support’ would be counted as having two ‘sessions’ each time they visited).
10. In return for this commitment, Mr and Mrs W were paid an allowance and a fee when children were placed. In terms of training, SEND Specialist Carers needed to:

a) attend the training agreed as mandatory for SEND Specialist Carers (paragraph 1.5.1.15).

b) identify their own training needs (paragraph 6.1);

c) attend monthly supervision meetings where ‘advice and training (would be) offered to assist the SEND Specialist Carers in acquiring suitable skills’ (paragraph 8.3);

11. The Service Schedule attached to the contract says the Council will follow “the requirements and timescales of the Foster Carers Regulations 2011 and the Fostering National Minimum Standards for recruiting, approving, training, supporting and reviewing Foster Carers’. It would also provide Specialist Carers ‘with the supervision, support, training and written guidance they need to develop their skills’.
12. There is no reference to leave entitlements and no mention as to how training would be managed within, or be separate to, the 218 sessions.
13. The key message is that ‘The SEND Specialist Carer shall comply in all respects with the statutory requirements relating to the Service’ (paragraph 18.1).
14. In terms of inspection and monitoring; the SEND Specialist Carer ‘will be reviewed annually by the Council, by means of a SEND Specialist Carer Review, in accordance with the Fostering Services Regulations 2002 (paragraph 11.1).
15. Mr and Mrs W told me they signed the contract even though it was accepted it was incorrect and needed to be changed. Mr and Mrs W said to the Council; ‘The department needs to look into how they have worded the contract to make it more exact and less open to interpretation. To acknowledge the fact that it was their idea to make everyone self-employed’. They could equally have asked an appropriately qualified solicitor to look at the contract before they signed it or, because they knew it needed changing, not sign until the wording was addressed.

Foster care handbook 2016

16. This explains that carers under the SEND Specialist Carer Scheme are expected to offer 218 sessions to children with a disability.

SEND Specialist Carer Specification 2017

17. This document provides more detail about terms and conditions of SEND Specialist Carers although there is nothing about the fees that will be paid.
18. As opposed to 218 sessions, this says ‘SEND Specialist Carers will provide 200 sessions per year (usually overnight), subject to referrals and matching…Each session will be classed as up to 24 hours. Carers will have 5 weeks of leave a year and an additional 8 nights in lieu of bank holidays’. Leave is not part of the 200 sessions.
19. As well as the 200 sessions, ‘SEND Specialist Carers will make themselves available for; supervision visits by their named Family Placement social worker, their annual foster carers’ review, training, support groups, meetings concerning the young person (such as the child’s social worker visits and reviews), and any other necessary appointments/meetings’.

What happened

20. Mr and Mrs W were concerned their contract had been misinterpreted and this put them to time and trouble and caused them distress. They made a number of complaints to the Council and were unhappy with the response they received. They asked the Ombudsman to investigate. I will list the complaints they made and consider the Council’s responses.

We pointed out to our Link Worker and her Manager our contract stated that we are Specialist Carers. Nowhere does it specify we are Foster Carers

21. There is nothing in law to differentiate ‘Specialist Carers’ from ‘Foster Carers’. Their contract (at 5.1.5) says Mr and Mrs W are to ‘provide care and support to SEND Specialist Carers Children in accordance with the Fostering Services Regulations National Minimum Standards’. Having to follow fostering regulations means they are foster carers.
22. Although their role is a specialist one, this does not mean the Council is incorrect to state Mr and Mrs W must follow the general fostering requirements. We would be critical if the Council did otherwise. There is no evidence of Council fault.

Some of the training the Council asked us to do was not relevant to the children we were looking after

23. As the Council confirmed Mr and Mrs W were foster carers, it would have expected them to engage with all the training that foster carers would need to do. This fits under the terms of their contract i.e. that they needed to ‘attend the training agreed as mandatory for SEND Specialist Carers’ (1.5.1.15). This ‘mandatory training’ would cover all the training necessary for foster carers, which is unavoidable, as well as for their specialism.
24. Mr and Mrs W pointed out to me that ‘if (the Council is) insisting on as much training as they do then it has to be during their time, when they are paying their contract carers. Otherwise the carers are doing a vast amount of their work unpaid’. Nevertheless, they signed a contract where the amount of time to be spent on training was not quantified and neither were fees.
25. The Council should have been clear with Mr and Mrs W that its practices were changing (if, as Mr and Mrs W suggest, they had not been required [initially] to do the training required of foster carers). As their contract allows for the Council to decide certain training is ‘mandatory’ there is no evidence of fault.

We stated that we couldn’t see why the Council had to inspect the upstairs of our house when the children had no access upstairs.

26. Mr and Mrs W say they were told, when they became SEND Specialist Carers, that as ‘we would be working from entirely the ground floor of our property, upstairs would no longer need to be inspected annually and the Health and Safety Check would only need to cover the areas used for the purpose of contract care’. This seems to have been the Council’s practice in 2016 and 2017.
27. Foster carers (and childminders) generally have their whole house, and gardens, inspected. I cannot see Mr and Mrs W would be caused injustice by having the upstairs of their house inspected too. I note, too, their 2013 review said; ‘There is an adapted bedroom and wetroom downstairs and a bedroom upstairs that are both used for Family Link’ so they previously had both upstairs and downstairs inspected. It is not fault the Council wanted to know that there were no hazards upstairs that it should be aware of.
28. The Council could have told Mr and Mrs W its practice was changing and everyone was now to have their houses fully inspected, as if they were foster carers. However, because there is no injustice to them; I am not making any finding on fault.

We pointed out that…we were running our own business offering a service to the Department. This was confirmed by the service specification supplied with the agreement that we signed.

29. There is no evidence the Council disagrees that Mr and Mrs W were ‘running our own business’. The Council suggested this complaint was raised because of the amount of training Mr and Mrs W were expected to attend. I have already considered that above. There is no evidence of Council fault.

We had disputed that all training and meetings/reviews should be done within the allocated period of the 218 sessions we were contracted for. However, this was not what the department thought and they felt that we were deliberately being disruptive.

30. Their social worker commented the family ‘currently support children for 189 sessions (per year). They are contracted to provide 200 sessions per year and the other sessions are used for attendance at meetings, training and room preparation. Senior management is aware of this’.
31. Therefore, the Council expected Mr and Mrs W to support children for 189 sessions per year, rather than 218 sessions, and for any additional training or meetings to be conducted outside of that. This shows the Council’s flexibility, which is good practice. There is no evidence of fault.

A meeting with a named officer was unhelpful as he ‘was just trying to bully us into doing as we were told’

32. This complaint arose because of Mr and Mrs W’s concerns they were expected to train as foster carers not just as SEND Specialist Carers. From my understanding, the officer, in the meeting, was trying to explain the generic training still had to be undertaken. Understandably, Mr and Mrs W would have been upset by this. Because there is no fault in the substantive matter, because the Council was not wrong to insist on the training, I am not going to investigate this aspect of their complaint further.

When the Link Worker’s new manager considered our points ‘he came back saying basically we were wrong and the department was right and we had to put up with it’.

33. Again, as I have found no fault in the Council’s interpretation of the contract and, thus, the requirements for training, I am not investigating this point further.

‘We were still unhappy and asked to move on to the second stage of the complaints procedure. However, our Link Worker had decided by then that she couldn’t work with us and was going to panel to ask for us to be deregistered. She claimed that she couldn’t guarantee the safety of the Foster Children now’.

34. From the Stage Two response, it is clear the Council tried to give the message that the generic foster carer training had to be undertaken. Mr and Mrs W say this was given more like an ‘order’ with no previous discussion with them. On the balance of probabilities, this was because the Council had identified them as foster carers and expected them to do the generic training, and to make themselves available for it, as a matter of course. It was also the case that 189 sessions of care had to be offered (which was already a departure from the contract specifying 218 sessions) although Mr and Mrs W say they were offering more than 218 sessions anyway. If they were offering more than 218 sessions, they were not paid to do this so, arguably, should not have been doing it. Without making themselves available for training, the Council considered Mr and Mrs W were not able to provide a service. The way forward would have been for the approvals panel to consider this further. There is no evidence of Council fault.

We have had issues with professionals within the department when we have asked for advice on how to keep a child safe and the professionals have not been around to speak to us or see how we can improve the child’s safety.

35. I have not been given specific evidence about this from Mr and Mrs W. However, where a named social worker is not available, for whatever reason, carers are advised to call the duty team. The duty team is then able to forward matters on or deal with issues itself. If there was an urgent matter requiring social work attention, this would be the way to report it even in the absence of the social worker or the social worker manager. Mr and Mrs W say they did call the duty team but as they did not know the individual children they were looking after, Mr and Mrs W often had to wait for the social worker to get back to them. Nevertheless, urgent safeguarding matters could be responded to by the duty team. There is no evidence of Council fault.

The Link Worker’s new manager said the panel (to decide on approvals for foster carers) could deal with the issues we had raised so refused to move on to the next stage (of the complaints process). We have issues with some of the things our Link Worker has said about us, which were either false or misinterpreted.

36. The Council felt the panel could consider some of the points of contention between Mr and Mrs W and the Council. Mr and Mrs W say they were told by an officer that the panel could look at Stage Two of their complaint even though this was outside the panel’s remit. I cannot investigate matters where it is one person’s word against another’s. Slander, which is what is alleged here, is a matter for the court.

In January 2019 we received emails from the Link Worker, which showed some emails we had sent to her had been deleted unread

37. I have seen some of these emails from 2018 that were deleted unread and unanswered. Mr and Mrs W say; ‘some of the problems we have had could well have been due to the lack of competence from within the department’. On the balance of probabilities, I consider this was due to a specific officer failing to open and answer emails. I consider this is not so significant to suggest Council fault. Mr and Mrs W had access to the duty team and could have telephoned the Council expressing concern that questions were not being answered. They also had access to the individual children’s social workers.

Complaints handling

38. I am not considering the Council’s complaints handling, which Mr and Mrs W have criticised, because I have not found fault with their substantive complaints.

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Final decision

39. There is no evidence of Council fault and I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman