The Ombudsman's final decision:
Summary: Ms B is a foster carer. She complains about the Council’s failure to provide child C with advanced status earlier. The Council has largely remedied the fault by agreeing to pay Ms B the fees which she would have been paid, but it should apologise to Ms B and pay her £200 to acknowledge the distress she suffered.
- Ms B was child C’s foster carer. She complained that the Council had not allocated the correct advanced status to child C which led to the breakdown of the placement. The Council gave child C advanced status a month after she left the placement. It offered to repay Ms B the difference between what she was paid and what she would have been paid as an advanced carer. Ms B then complained that the way the Council calculated the repayments was not fair.
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)
- 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)
How I considered this complaint
- I have discussed the complaint with Ms B and I have considered the documents she and the Council have sent and the relevant guidance and policies.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
What I found
- The Council has written guidance on how it pays foster carers.
- The Council splits foster carers into different categories and pays them different rates:
- Pre-accredited. New foster carers who become accredited by completing training.
- Advanced. They care for children over 10 who have complex needs such as challenging behaviour, disabilities or medical conditions. The Council says advanced foster carers must be available, accessible and meet unexpected situations. If advanced carers are in employment this needs to be on the basis that it provides flexibility to meet the demands of fostering. It says the foster carer must be ‘sufficiently flexible and available to provide day care for periods in the event of young people being excluded from school.’ Advanced carers must also receive additional training and attend training events.
- Specialist. They care for the most challenging children and are expected to be at home full-time.
- Ms B became child C’s foster carer on 29 March 2018. Ms B became an advanced level foster carer while C was placed with her, but the Council said that C only needed an accredited foster carer so it paid Ms B the accredited rate.
- Ms B said C had challenging behaviour and was frequently excluded from school. Ms B made an application for C to be recognised as requiring advanced status in April 2018. C was permanently excluded from her school in May and the Council made alternative provision available. The meant C would finish at 1 pm every day. The Council agreed to pay Ms B day care fees for the hours C was at home when she should have been at school.
- The Council paid Ms B a week’s holiday allowance on 5 June 2018 so that C could join her on a holiday for a week.
- The Council has a Placement Permanence and Complex Decision Making Forum which considers the foster placements and the rates of pay. The social worker said the Forum would consider the application for advanced status for C on 11 July 2018, but the date was postponed.
- In June 2018, the Council agreed to pay Ms B a top-up fee which was the difference between what she would have received at advanced status and what she was receiving. This payment covered the summer holidays and an extra two weeks. The Council’s reasoning was that it could not pay the day care fee during the school holidays as C was not meant to be in school, but it wanted to ensure that Ms B was not out of pocket by caring for C.
- Ms B complained to the Council on 3 July 2018 as she said she had cared for C for three months at the accredited level when C needed care at the advanced level. The Council responded on 20 July 2018 and said C had been assessed as requiring an accredited foster carer. It said C and Ms B received a package of support and based on the information the Council currently held, it would not recommend a change in that status. However, it urged Ms B to provide more information so it could update the Forum as this was not a static situation.
- Ms B raised her complaint to stage 2 on 25 July 2018. She explained why she felt C should have advanced status referring to her school and home life. She said she was giving notice of the placement from 3 August 2018.
- The Council said it would not reply to her complaint yet as the team was gathering the information to update the placement request.
- The Council paid Ms B a week’s holiday allowance on 2 August 2018 to take C on a trip to London for a few days.
- The Forum considered the application for advanced status on 28 August 2018 and said C was not advanced status.
- Ms B gave notice of the placement and C moved to another foster placement on 17 September 2019.
- The placement with the new foster carers was in crisis and the new foster carers threatened to give notice if C did not have advanced status. The Forum considered C’s status on 16 October 2018 and granted C advanced status for four months.
- Ms B complained to the Ombudsman on 23 October 2018. The Council wrote to Ms B on 14 and 23 November 2018. The Council said that, as C received advanced status so soon after leaving Ms B’s care, it agreed that not to pay back Ms B the advanced fee would ‘be an inequitable position that you could rightly feel aggrieved about’. It therefore agreed to pay Ms B the difference in what she was paid and what she would have been paid if C had advanced status for the duration of the placement.
- The Council added up the payments Ms B received (without the holiday payments) which came to £9,732. This consisted of:
- Basic allowance.
- Accredited premium.
- Day-care fees.
- Top-up fees.
- She disagreed with the deduction of the day care payments. She said the current foster carers received the advanced fee but also daytime support for 2 or 3 days weeks, which she did not receive.
- She said the Council did not inform her that the top-up fee was to make up the difference between the accredited and the advanced fee. The Council did not say that this would make up part of her fee should C later become advanced. The Council told her this money was to help with additional costs and expenses of entertaining C during the summer holidays, recognising that C needed extra support.
- She said the £100 did not reflect the emotional distress she and C suffered. The placement ended early because of the Council’s failure to grant the advanced status and the emotional distress this caused could have been avoided. She says she put in a lot of extra work and suffered emotional stress pursuing the advanced status.
- I have focussed my investigation on the remedy the Council has given to Ms B. By agreeing that Ms B would have a right to be aggrieved and would be left in an unequitable position if it did not pay back the advanced fee, I am of the view the Council has accepted fault in not approving C’s status as advanced earlier.
- The Ombudsman looks at remedy in three stages:
- Was there fault?
- Did the fault cause an injustice to the complainant?
- If so, what is the remedy? The main aim of the remedy is to put the complainant in the position they would have been in if the fault had not happened.
- The Council’s offer to pay Ms B the difference in payments of £632 and £100 for time and trouble is an appropriate remedy for the fault. The Council has agreed to make the payments within one month of the final decision.
- The Council has agreed to apologise to Ms B for the fault and to pay Ms B a further £200 to acknowledge the distress she has suffered by the fault within one month of the final decision.
- I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.
Investigator's decision on behalf of the Ombudsman