Summary: Mr B complained about the Council’s failure to recognise him and his partner as foster carers when a young person, C, stayed with them on a long-term basis. We find fault with the Council’s decision-making process: it decided C lived with them as a private family arrangement, without any substantiating evidence of this agreement. It also delayed in formally considering the legal status of the arrangement. The Council has agreed to pay Mr B £750.

The complaint

1. Mr B complained that Wiltshire Council (the Council) failed to recognise him and his wife as foster carers for C. C was placed with them on an emergency basis but the Council insisted it is a private fostering arrangement between them and C’s father. They have struggled to look after C with inadequate financial support and the ongoing situation is very stressful.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mr B and the Council with my draft decision and considered their comments.
5. 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

6. Sometimes parents cannot look after their children. It may be because the parents cannot provide suitable care, may be hospitalised, may have abandoned the children or may be dead. These children may need the council to accommodate them; making them looked after children. This may be through a care order granted by the Court, or by agreement under section 20 of the Children Act 1989.

Private fostering arrangement

7. Other children may not live with their parents because of an arrangement known as a private fostering. This is when the child lives with someone not closely related to them. The parent and the carer will have arranged this between them privately. In such cases the child’s parents remain responsible for any financial support the child might need and the council will not be liable to pay for any form of fostering allowance. However, the child could still be a child-in-need (a child who is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority) and the Council may need to provide support services to the child, including financial support under section17 of the Children Act.

Family and friends foster carers

8. When a council decides it needs to a accommodate a child, the law says councils should first consider placing a child with family or friends. This will depend on those family and friends being ‘suitable’ and able to provide suitable care. If the council is considering the carer as a family and friends foster carer, the carer will be subject to the same checks as professional foster carers. The Council can approve a person as a local authority foster parent for a temporary period of no more than 16 weeks. It must then make immediate arrangements for the person to be assessed as a local authority foster parent.
9. If the carer becomes a family and friends foster carer, the carer is entitled to receive a fostering allowance and other practical support for them and the child from the council. The fostering allowance is provided to cover the costs of caring for the child.
10. The practical support a council gives to a family and friends foster carer would include regular visits by a social worker (both the child and the foster carer have their own social worker), a placement plan, looked after child reviews overseen by an Independent Reviewing Officer, supervised contact, perhaps respite etc.

Special Guardianship

11. Some family and friends carers decide to go to court (sometimes with the help of the council) to gain a Special Guardianship Order or Child Arrangement Order (previously called a Residence Order) for a child. This would mean the child is no longer a looked after child. It would give the person with the order some, but not all, parental responsibility for the child. The carer would then be free of the controls placed on looked after children and their carers. It would allow them to decide such things as the child’s health matters and schooling. Overall, a Special Guardianship Order is more secure and leads to more support, including financial, from councils than a Child Arrangement Order.

What happened

12. C is the son of Mr B’s ex-wife and partner (Mr D). Mr B and his wife, Mrs B, have maintained regular contact with C and offered some support due to difficulties with C’s family life. In 2018 C had spent time living with his mum and then his dad (Mr D) but the relationships were difficult, and C was frequently getting into trouble.
13. After an incident where C was arrested in April 2018, he returned to live with Mr D. During the next month Mr D requested respite care due to difficulties managing C’s behaviour. The Council worked with Mr D offering services to stabilise the situation. But Mr D felt the only reasonable option was to identify a foster placement for C.
14. The Council said it suggested Mr D considered alternative family care but he refused. The Council was clear at this point that it did not want to pursue the fostering option. In May 2018 C’s social worker contacted Mr B and asked if he and Mrs B could provide respite for C, over the bank holiday weekend. Mr B said the social worker was desperate for Mr B to agree to this and rang him several times. Mr B agreed to have C until Monday
15. The case records say that the social worker agreed to inform Mr D and for Mr B to make arrangements with him. There is a note of the social worker calling Mr D, but no further mention of arrangements on that day.
16. Mr B says C arrived on the train with no return ticket. Mr B had no conversations with Mr D at this point. Mr D texted Mr B on the Monday to request he drop C back at his house which was out of Mr B’s way. Mr B asked by text for Mr D to collect him but Mr D made several excuses and did not collect him.
17. Mr B said he had previously arranged to have C the following weekend and because C was upset at his dad’s behaviour, Mr B suggested to C that he stayed until then.
18. The Council says Mr B and Mr D arranged between themselves for C to remain with Mr B. It says it was not involved in this discussion or decision. Mr B disputes this: he says he had no conversation with Mr D. Mr D refused to pick up C after the weekend and C has remained with him ever since. Mr B lives in a neighbouring borough.
19. On 29 May 2018 Mr B said to the Council that he wished to formalise the placement with C.
20. Mr B says another meeting took place on 1 June 2018 including the social worker, Mr B and C’s father. Mr B says the meeting agreed it was best for C to be fostered by Mr and Mrs B.
21. On 7 June 2018 at a home visit, the Council provided information about private fostering arrangements and advised Mr B to contact the neighbouring Council. The case notes show that the Council considered a private fostering arrangement was going ahead and all parties were in agreement.
22. During a further home visit on 20 June 2018 Mr B said his Council had advised him that C was not staying with him under a private arrangement, but it was a temporary foster care placement. The Council disagreed saying it had not placed C with them and repeating its view that this was a private fostering arrangement. It discussed a special guardianship order as a way of gaining parental responsibility. Mr B declined this and requested a fostering allowance.
23. At a supervision on 25 June 2018 the Council recorded the following about the situation:

There is a friend of the family (Mr B) who has supported with providing respite for C when a bolt hole is required. Mr B is currently stating that he will be willing to care for C in the longer term if a foster placement is required…assessment of Mr B to be progressed.

24. Mr B complained to the Council on 25 June 2018 saying that he was not being paid the correct fostering allowance. At a visit in July 2018 Mr B repeated his view that he should be assessed as a foster carer and receive the appropriate allowance. The Council disagreed saying Mr B had never been assessed as a foster carer and as such it was a private fostering arrangement.
25. The notes of a supervision session on 16 July 2018 say that the Council considered it was a private arrangement as it did not place C. But it recognised that Mr B wanted it to be a regulated placement.
26. The chair of the child protection conference in July 2018 stated that she felt C should be a looked after child. However, she later changed her view after the social work team informed her Mr B and Mr D came to the arrangement on the Sunday of the weekend respite. The notes of the conference state that if the arrangement is private then a private fostering assessment is needed. But if C is looked after then a full fostering assessment would be necessary.
27. Since August 2018 Mr and Mrs B have been receiving child benefit for C. C has been thriving in the care of Mr and Mrs B and he is back in education. The Council made one section 17 payment of £200 for work clothes for C.
28. Mr B has continued to argue that he wants to be assessed as a council foster carer and he is not looking after C as a private foster carer. He does not wish to apply for a SGO as the support is means-tested. The Council maintains its view that Mr B and Mr D agreed at the end of the weekend that C would continue to stay with Mr B and so it is a private fostering arrangement.

Complaint

29. Mr B complained to the Council on 25 June 2018 about its decision not to treat C as a looked after child and him as a foster carer, entitled to a fostering allowance. He complained again in July 2018. The Council replied on 27 August 2018. Mr C remained dissatisfied, so escalated his complaint.
30. The Council replied in November 2018. It said its records supported its view that it was involved in the arrangements for weekend respite with Mr B but as far as it was aware C, was returning to the care of Mr D after the weekend. It was not involved in the agreement to prolong the stay with Mr B. It repeated its view that there was an agreement between Mr B and Mr D for C to stay for longer.
31. It said Mr B had not applied through the proper process to become a Council foster carer. It also said C was not a looked after child and it had never been the Council’s intention to make C a looked after child. In order to place C with Mr B as an urgent case (temporary foster carer approval), the Council would have required the agreement and signature of the head of service, which did not take place and no steps were taken to assess Mr B as a foster carer.
32. It said on the basis of all the information it considered the C was being looked after under a private fostering arrangement. The Council accepted it had been involved in the weekend respite arrangement but not with the longer-term plans.
33. But the Council considered the situation had not been clearly explained to Mr and Mrs B at the time and nothing had been put in writing. It apologised for any confusion this had caused. It also apologised for the delays in dealing with his complaint. It said that, in respect of a private fostering arrangement, the responsibility for financial support lay with the parents
34. Mr B then complained to the Ombudsman. Mr B and C also refused any further visits or support from the Council
35. The child protection conference in January 2019 recommended that C no longer needed to be subject to a child protection plan, but he should be treated as a child-in-need until the legal status of the placement was resolved. However, after discussion it was agreed he would remain under a child protection plan for a further three months.
36. In February 2019 the Council referred the case to its Edge of Care Panel to consider C’s status. The referral form included the Team Manager’s view that Mr B and Mr D had a conversation in May 2018 where they agreed that C could stay with Mr B for longer. The Panel was satisfied that C went to live with Mr and Mrs B under a family arrangement and he was not a looked after child. It noted C was thriving in the care of Mr and Mrs B and there was no need for him to be looked after. It gave Mr B four options:
• To contact his council to request a private fostering assessment which would provide them with private foster care status until C is 16 years old (in April 2019). The assessment could include additional recommendations for post-16 arrangements including financial support.
• To apply to his council for a special guardianship order. That council would assess him, the court would grant an order giving parental responsibility to Mr and Mrs B and the Council would provide a support package until C reaches 18.
• For C to live with Mr and Mrs B under section 17 of the Children’s Act 1989. This would provide them with support and financial assistance from Wiltshire Council until C reaches 18.
• For C to continue to live with Mr and Mrs B with no involvement from either Council.
37. Mr B says he will not pursue the private fostering option or the SGO. The section 17 option is ad hoc and the financial side cannot be formalised. He does not consider the fourth option is viable as C will still be a child-in-need and the Council would still have a duty to support him under section 17.
38. As C is now 16 the Council says an SGO is the only appropriate way of formalising the placement. It is proposing to close the case as C is well-cared for and does not require any further support. The Council has no concerns about the arrangement remaining on this basis. Mr B remains unhappy that no formal arrangement is in place.

Analysis

39. The main issue of dispute in this case is whether C, in May 2018, was a looked after child in need of accommodating by the Council with Mr B or accommodated with Mr B in agreement with Mr D as a private fostering arrangement.
40. The Council has consistently maintained since June 2018 that Mr B and Mr D agreed on the Sunday of the bank holiday weekend that C would stay with Mr B for a longer period. However, there is no evidence in the Council’s records or from Mr B that this conversation ever took place.
41. Mr B has consistently maintained that he had no conversation with Mr D during that weekend and Mr D failed to collect C from Mr B’s house. He agreed with C that he could stay with him until the following weekend, but he had no communication with Mr D about this decision. He contacted the Council the day after to ask for the arrangement to be formalised.
42. The Council rightly stated that its only involvement was in the initial weekend placement which was a temporary respite arrangement and it was not involved in the decision for C to stay with Mr B on a long-term basis. But it then reached the view that it was a private fostering arrangement on the assumption that Mr B agreed this with Mr D. There is no evidence to support this conclusion.
43. It is not for me to conclude whether or not C should have been treated as a looked after child in May 2018. That is a decision for the Council to make on the basis of all the available evidence. However, I consider its decision-making process was flawed as it quickly reached the conclusion it was a private fostering arrangement on the basis of an assumption rather than evidence. This was fault.
44. There is some evidence that Mr D had in effect abandoned C as he failed to collect him from Mr B’s house after the weekend and there is no evidence of any alternative arrangement. At this point the Council should have considered:
• the lack of any formally evidenced arrangement by those with parental rights agreeing to someone else looking after C on a long term or permanent basis;
• the lack of any evidence of the exercise of care and control by those with parental rights to ensure C’s wellbeing, welfare and safeguarding are protected; and
• the lack of any evidence that Mr B agreed to long term care, was fully informed of the consequences of such a decision and was an appropriate person to provide that care.
45. The assumption that Mr B had made a private arrangement with Mr D, also influenced the view of the Child Protection Chair who initially considered C should be a looked after child. She changed her view on hearing the social work team’s view that Mr B and Mr D had made a private arrangement on the Sunday, although no evidence of this agreement was provided.
46. The Council then left the matter in the hands of the complaints department from June 2018 until November 2018. This was too long, particularly as the final response still relied on the assumption that Mr B and Mr D had made a private arrangement without providing any evidence of this exchange.
47. The Council accepted it had taken too long to get to this point and it had not properly or clearly explained the situation to Mr B or communicated it to him in writing. I note it has apologised for this failure. I do not consider this is sufficient remedy for the fault.
48. I also consider the Council took too long to seek legal advice and formally consider C’s status. Mr B disputed the Council’s view in June 2018 but the Council’s Edge of Care Panel did not consider the matter until February 2019. I also note the referral contains the unsubstantiated view that Mr B privately agreed with Mr D for C to stay with him on a longer-term basis.

Injustice

49. It is difficult to conclude what the outcome would have been had the Council properly considered the evidence in accordance with the legislation at an earlier point. C was well looked after by Mr and Mrs B, thrived in their care and was content with the arrangement. The Council provided money on one occasion for work clothes and Mr and Mrs B received child benefit for him. By the time the Council properly considered the issue in February 2019 it did not consider that C needed to be a looked after child and did not require any further support.
50. I cannot conclude Mr and Mrs B would have been entitled to a fostering allowance, but I do consider they have been caused uncertainty and frustration along with the time and trouble of pursuing the complaint.

Agreed action

51. In recognition of the injustice caused to Mr and Mrs B, I asked the Council to:
• pay Mr B £750; and
• remind its staff of the need to act more quickly to clarify the legal status of placements and ensure that its decisions are based on evidence not assumption.
52. The Council has agreed to my recommendation. I would ask it to complete these actions within one month of the decision.

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Final decision

53. I consider this is a reasonable and fair way of resolving the complaint and I intend to complete my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman