Summary: Mrs X complained about the Council’s refusal to pay her and her husband, Mr X, as kinship carers for Mr X’s grandchildren. The Council was at fault as it did not recognise them as kinship carers, causing them a financial detriment. The Council acknowledged this through its complaints procedures, however it wrongly decided Mr and Mrs X were not entitled to payment for part of the period. The Council has agreed to pay Mr and Mrs X for the whole period it placed their grandchildren in their care. It has agreed to apologise and pay them £500 to recognise the time and trouble they have gone to and the frustration its faults have caused them.

The complaint

1. Mrs X complained the Council refused to pay her and her husband, Mr X, to recognise the full period for which they were kinship carers for Mr X’s grandchildren. The complaints panel recommended the Council pay them from August 2017 to May 2018, however the Council decided it would only pay to January 2018. This was because the court granted an interim supervision order in January 2018. However, Mr and Mrs X say they were not part of the court proceedings, had not agreed to the order and only became aware of it after it was granted.
2. This caused Mr and Mrs X to be paid less by the Council than they believed they should have been.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. Mrs X complained to the Ombudsman in February 2019, which was 18 months after their grandchildren came into their care. However, they began the complaints process immediately when the children left their care. There were also some delays by the Council during the complaints process which caused some of this delay in complaining to the Ombudsman. For these reasons, I have used my discretion to investigate this complaint from August 2017.
6. 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.
7. 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

8. I considered the information Mrs X provided;
9. I made enquiries of the Council and considered the comments and documents it provided;
10. I looked at the relevant law and guidance, including the Children Act 1989;
11. I looked at the Ombudsman’s focus report, “Family Values: Council services to family and friends who care for others’ children” (2013);
12. I considered the Ombudsman's guidance on remedies; and
13. I wrote to Mrs X and the Council with my draft decision and considered their comments before issuing this final decision.
14. 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

15. Councils have a duty to provide accommodation to any child in need in their area who requires it as a result of:
• there being no person who has parental responsibility for the child;
• the child being lost or abandoned; or
• the person who has been caring for the child being prevented (whether or not permanently, and for whatever reason) from providing the child with suitable accommodation or care.
16. Councils decide if they have a duty to provide accommodation by considering factors such as:
• whether the child is a child in need;
• whether the child appears to require accommodation; and
• whether anyone with parental responsibility objects to council intervention.

Family and friends foster carers

17. Where a child’s parents make a private arrangement with family or friends who agree to look after the child, the parents remain responsible for financial support for the child. However, sometimes 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.
18. Where there is a family and friends foster carer (also known as a kinship carer), they are 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. Fostering payments are disregarded when calculating welfare benefits. If a family and friends foster carer receives child benefit or child tax credit, the council will take this into account when calculating the payments they are entitled to.
19. Sometimes there is disagreement between councils and family members about whether the council has placed a child with the family (and so is in law a ‘looked after child’) or whether it was a private family arrangement.
20. The judgement in London Borough of Southwark v D [2007] provided clarification on whether an arrangement for children with family and friends should be considered a foster placement. The judge said that:
• If a council plays a major role in making arrangements for the child, the most likely conclusion is that it is exercising its powers and duties to accommodate the child.
• Informal family care arrangements are usually made direct between individuals.
• If a council intends to merely assist in arranging informal family care rather than accommodating a child itself, the council must be explicit with those involved, including giving clear information about who will be financially responsible for the child. If this is not made clear, the courts and others are likely to conclude that the council is making the placement itself. Only on receipt of such information can a potential foster carer give informed consent to accept the child on an informal family care arrangement.

Court orders

21. If a court grants a care order, kinship fostering payments continue. However, a court may alternatively grant another kind of order, for example a supervision order. A supervision order gives the council the legal power to monitor a child's needs and progress while they live at home or somewhere else. A supervision order does not give the council parental responsibility of the child, but a care order would.

What happened

Background

22. Mr and Mrs X are the grandparents of two children who lived with their mother. Mr and Mrs X agreed with the children’s parents they would provide some care for the children over the summer holidays in 2017. The Council placed the children on child protection plans following an incident with their mother. The children stayed with Mr and Mrs X after the summer holidays, after the original period agreed with the children’s parents ended.
23. Mr and Mrs X say they allowed the children to stay with them to avoid them being placed in foster care. However, they told the Council they were not best placed to provide the support the children needed, and they would need financial support. At the end of August 2017, they told the Council the agreement with the children’s mother had been for six weeks of summer only and the Council needed to find alternative arrangements for the children. The Council told them it would work towards beginning care proceedings.
24. In January 2018, the Council applied to the court for supervision orders and care orders. The court granted interim supervision orders while it arranged for more information for the application for a care order, and the Council told Mr and Mrs X this after the hearing. Mrs X had hoped the Court would grant interim care orders so the Council would have shared parental responsibility with the children’s parents.
25. The Council continued with its application for full care orders and the court instructed an independent social worker who completed a report in May 2018.
26. Mr and Mrs X asked the Council to move the children out of their care at the end of May. The children moved into foster care.

The complaints procedure

27. A week after the children left their care, Mr and Mrs X sent a formal complaint to the Council. Part of the complaint was about their view the Council should have started care proceedings sooner. I have not investigated that. They expressed concern about the cost to them of caring for their grandchildren for eight months.
28. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage two of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
29. The Council responded to their complaint in June. It said it had paid Mr and Mrs X £501 and it did not believe they were due any other financial help from it.
30. Mr and Mrs X sent a further complaint in July 2018. They argued the Council placed the children with them from July 2017. They explained £501 was not sufficient to care for their grandchildren for eight months. Mr and Mrs X claimed benefits, and they told the Council it was not their responsibility to care for the children and pay for everything.
31. At the end of October 2018, the Council sent Mr and Mrs X its Independent Investigator’s stage two complaint investigation and its adjudication letter. The investigator recommended the Council review the status of the time in question and consider paying Mr and Mrs X in line with the care they provided. The Council said it did not agree as the placement was arranged by the family. It said it had provided the £501 on a discretionary basis and it would not provide more financial support.
32. Mr and Mrs X asked the Council to escalate their complaint. The stage three review panel was held in January 2019. The Council told the panel its view was Mr and Mrs X had continued to care for their grandchildren after the summer holidays had ended, which made the period in question a continuation of the family agreement, so it was not a placement by the Council. It told the panel Mr and Mrs X had never said they were unwilling to continue caring for the children.
33. However, the Independent Investigator highlighted Mr and Mrs X told the Council in August 2017 it needed to find alternative arrangements. The panel decided the family arrangement covered the summer holiday period only and Mr and Mrs X had not agreed with the children’s parents to care for them after the summer. The panel decided the Council’s communication with Mr and Mrs X about the nature of the arrangement was unclear.
34. It is clear the Council had significant concerns about the parents’ ability to provide suitable care for their children. It was also aware at the end of August 2017:
• Mr and Mrs X said they were not best placed to provide the support the children needed, and they would need financial support;
• the agreement with the children’s parents had been for six weeks of summer only; and
• Mr and Mrs X had said the Council needed to find alternative arrangements for the children and the Council told all parties it intended to seek care proceedings.
35. The panel noted that concerns about the children’s mother had increased after the children had gone to live with Mr and Mrs X. It concluded it was likely if the mother had asked for the children to be returned to her that the Council would have taken action to maintain their safety. The panel concluded the Council had effectively placed the children with Mr and Mrs X in August 2017 because:
• the nature of the arrangement was unclear by August 2017 as there was no longer a private arrangement with the children’s mother;
• Mr and Mrs X had asked the Council for financial support; and
• The Council had placed restrictions on the children’s contact with their father.
36. The panel concluded Mr and Mrs X should have been assessed by the Council as kinship foster carers and supported financially from August 2017. The panel agreed with the Independent Investigator, and recommended the Council consider making Mr and Mrs X a payment commensurate with the care they provided to the children between the end of August 2017 and May 2018 when the children went into foster care.
37. At the end of January 2019, the Council wrote to Mr and Mrs X. It apologised for the lack of clarity in communications. It agreed with the panel’s findings that it should pay Mr and Mrs X the fostering rate for kinship carers, however it said this would only be to January 2018 when the court granted an interim supervision order. It says this order meant the children were not looked after children, and therefore such allowances would not have been made after that date.
38. The Council explained it would therefore offer Mr and Mrs X £5,640, which included a deduction of the discretionary £501.
39. Mr and Mrs X did not accept the Council’s offer. They had spent a lot more money on caring for the children, and it was a significant burden on their time. They had cared for the children to avoid them going into foster care, but it had not been their responsibility to do so. They calculated the payment should be around £10,859.

Analysis

40. Based on the information we have seen we agree with the panel’s findings.
41. When the summer holidays ended, the children stayed with Mr and Mrs X. The Council did not provide Mr and Mrs X with sufficient information to make an informed decision about continuing a private family arrangement. For the arrangement to remain private, the Council would have needed to explain:
• It was only facilitating a private family arrangement;
• Mr and Mrs X would have to rely on the children’s parents for financial support;
• They had other options, including applying to be friends and family foster carers or refusing to care for the children any longer; and
• There were significant financial, and other support, implications for them of these actions and choices.
42. Because the Council did not make the arrangements clear, it could not sidestep its duty to accommodate the children.
43. The Council recognised after Mr and Mrs X’s complaint had been considered through its complaints procedures, that it had been at fault for not assessing them as kinship carers and making payments after the summer holidays in 2017. It acknowledged the panel’s recommendations but decided to pay Mr and Mrs X up to January 2018 only, when the court had granted interim supervision orders.
44. Supervision orders in themselves do not make a child ‘looked after’ in the same way a care order would. However, a supervision order would not stop a child being looked after who was previously looked after under a section 20 arrangement with family members. The Council’s correspondence with Mr and Mrs X indicated this was its view. However, it told me as the children were not looked after to begin with, the effect of a supervision order on looked after status is not relevant. As the children were not accommodated under a private family arrangement from August 2017 onwards, they were looked after children, albeit without the proper processes having been followed. Therefore, the impact of a supervision order on looked after status remains relevant, and the Council was wrong to refuse to pay Mr and Mrs X the appropriate financial support for two children from January to May 2018.
45. Mr and Mrs X have gone to considerable time and trouble in pursuing this complaint. Had the Council accepted the findings and recommendations at stages two and three of its complaints procedures, the issues would have been resolved much earlier. Mr and Mrs X have also experienced significant frustration during the process.

Agreed action

46. Within one month of my final decision, the Council has agreed to:
• Apologise to Mr and Mrs X; and
• Recalculate its offer of payment to Mr and Mrs X to recognise the entire period they cared for their grandchildren, between August 2017 and May 2018. It will calculate the payments Mr and Mrs X would have been entitled to as family and friends foster carers for the two children, based on the children’s ages and the Council’s payment rates effective at that time. It is entitled to deduct the payment of £501 from this, as it would not have paid this had it already been paying them as kinship carers. It is also entitled to adjust the figure for any benefits they received. The Council will provide a breakdown of its calculations to Mr and Mrs X and the Ombudsman.

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Final decision

47. I found fault causing injustice. The Council provided a part remedy for this before Mr and Mrs X came to the Ombudsman. However, I recommended further action to recognise the full extent of its fault and the injustice this caused, which the Council accepted. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman