North Yorkshire County Council (18 011 377)

Category : Children's care services > Fostering

Decision : Upheld

Decision date : 17 Mar 2019

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.

The complaint

  1. 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.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. 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.
  2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

  1. The Council has written guidance on how it pays foster carers.
  2. The Council splits foster carers into different categories and pays them different rates:
    • Pre-accredited. New foster carers who become accredited by completing training.
    • Accredited.
    • 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.
  3. Foster carers can also claim a holiday allowance for a maximum of two weeks a year to take the child on holiday or to pay for holiday activities such as day trips.

What happened

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. The Council said it would not reply to her complaint yet as the team was gathering the information to update the placement request.
  9. 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.
  10. The Forum considered the application for advanced status on 28 August 2018 and said C was not advanced status.
  11. Ms B gave notice of the placement and C moved to another foster placement on 17 September 2019.
  12. 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.
  13. 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.
  14. 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.
  15. It calculated what the total would be if Ms B had received payment at advanced rate which was £10,364. It paid Ms B the difference of £632 and a payment of £100 to reflect the time and trouble she went through to pursue her complaint.
  16. Ms B did not agree with the calculation. Her complaints were:
    • 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.
  17. The Council said it did not pay day care fees to advanced carers so therefore it deducted the day care fee. It acknowledged that it sometimes supported advanced foster carers during the week by providing an alternative foster carer to look after the child. However, it only did this occasionally, to allow the foster carer to attend training or to attend an appointment such as a dentist appointment. It would never be a regular arrangement. The advanced rate was high as it recognised that income from other employment may be lower and because there was an expectation that foster carers provided intense care and support, including during the day when the child should be at school. There was not the same expectation from accredited foster carers which is why the Council paid Ms B the day care fee.
  18. In its response to the Ombudsman the Council said that the day care payments and the top-up fee were made to supplement Ms B’s income and to ensure she was not out of pocket. It said there was no evidence that Ms B was told she had to use the top-up money for trips and holiday activities. The Council paid the top-up fee during the summer holidays because it could not pay her the day care fee.
  19. The Council said it gave Ms B two weeks’ holiday allowance and would have expected her to use this to pay for holidays, trips and treats. It pointed out this amount was not included in the calculation of the £9,732. It said it never told Ms B that she had to use the top-up money only on trips and treats.
  20. The Council responded to the issue of the day care fees. It said the foster carers after Ms B received similar day care support that Ms B received for the first month of the placement as the placement was only ‘accredited level’. After the Council approved the advanced status, the Council reduced the day care support. It only offered alternative foster carers for C when the foster carer attended advanced training or attended an appointment, but these were exceptional one-off agreements. There was no provision to constantly pay or provide day care when C was not in school.
  21. I asked the Council some further questions as part of my investigation.
  22. I said I could not find the policy which said the Council would pay day care fees to accredited foster carers when a child was at home, when he or she should have been at school. Nor could I find the policy which said the Council would not pay these payments to advanced rate foster carers.
  23. The Council said this was not in its policy. These payments were exceptional and discretionary. The Council did not pay them often, but would do so to support the foster carer and the child and to ensure the foster carer did not suffer financially because of the placement.

Analysis

  1. 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.
  2. 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.
  3. Unfortunately, there is no record of what the Council said to Ms B in terms of the payment of the top-up fee. It appears the Council was trying to support the placement without having Forum approval for advanced status. I note the fact that the Council made two holiday allowance payments and the purpose of these was to pay for holidays and trips. It may well be that Ms B used some or all of the top-up fee to entertain C during the summer holiday, but in the absence of any other evidence, I cannot say that the Council told her to do this.
  4. I have also considered the day care payments. I note the Council’s position that it does not pay out day care payments to foster carers paid at the advanced rate so it would be paying Ms B twice if it paid day care payments and advanced payments.
  5. But I note Ms B’s claim that, if she had been paid the advanced rate, she would still have been given alternative foster care support for the days when C was not at school when she should have been.
  6. I have looked at the Council’s policy and this says that advanced foster carers would be expected to provide day care when young people are not in school when they should be. This suggests therefore that Ms B would not have received the level of day care support she received as an accredited foster carer if she had been at the advanced level.
  7. I have also looked at the alternative day care support the foster carers who cared for C after Ms B received once C was at advanced status. Most times the Council gave alternative foster carer support because the foster carer had to attend training and occasionally a few hours were given for other reasons. There was no constant provision of alternative day care foster carer support to compensate for C not attending school, as far as I can see.
  8. Therefore, I am of the view that the Council’s approach of including the payments for the top-up fee and the day care fee as equivalent to what Ms B would have received if she had been paid at advanced level is a fair approach in terms of the remedy.
  9. I have also considered the additional £100 which the Council has paid for ‘time and trouble’ that Ms B incurred in raising the complaint and pursuing the complaint. That amount is in line with what the Ombudsman would be for ‘time and trouble.’
  10. However, Ms B is also seeking a payment to acknowledge the distress that she and C have suffered by the fault. She says that, if the Council had properly considered and approved C as advanced status earlier, the placement would not have ended prematurely. She says this caused her and C emotional distress.
  11. The Ombudsman says distress remedies are largely symbolic. They are normally between £100 and £300, but can be as high as £1000 in exceptional circumstances.
  12. Unfortunately, as C is no longer living with Ms B, I cannot consider her distress as part of Ms B’s remedy. I can only consider the distress Ms B has suffered.
  13. I have considered the fact that the Council provided Ms B additional financial support which meant she almost had the equivalent of advanced status. The Council also gave Ms B additional practical support. However, I appreciate that the payments were on an ad hoc basis and Ms B wanted the recognition and permanence of the advanced status to be able to maintain the placement. Therefore, I am of the view that a payment of £200 would be appropriate to recognise the distress caused by the Council’s failure to approve C’s status as advanced earlier.

Agreed action

  1. 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.
  2. 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.

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Final decision

  1. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman

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