The Ombudsman's final decision:
Summary: Ms X complains the Council failed to provide the correct financial support to her as a foster carer. We have found no evidence of fault in the way the Council paid Ms X a foster carers allowance. But there was fault in its failure to provide clarity over Ms X’s status as a specialist foster carer during the complaint procedure. We have suggested a suitable remedy and so are completing our investigation.
- The complainant whom I shall refer to as Ms X complains about the foster carer allowance paid to her by the Council since she became a foster carer for her granddaughter Y in 2014. Ms X believes she should have been paid as a specialist foster carer at a higher rate due to Y’s complex needs and the training Ms X received to provide nursing care.
- Ms X says the Council eventually awarded her the specialist foster carer allowance but refused to backdate it to the date she first cared for Y. Ms X says it has caused her distress and financial loss.
- Ms X further complains the Council’s policy for specialist foster carers is unfair as it only applies to children with emotional and behavioural problems. Ms X says it does not apply to children with disabilities and health conditions such as Y.
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)
- 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).
- Although Ms X was aware of these matters more than 12 months ago, she has been unwell and receiving medical treatment. Therefore, I have decided there is a good reason to exercise discretion to consider Ms X’s complaint now due to her previous ill health preventing her from doing so any sooner.
- 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 read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
- Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
- 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.
What I found
Statutory children’s complaints procedure
- The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an investigating officer (IO) and an independent person (IP). The IP is responsible for overseeing the investigation. If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
The Council’s Financial policy
- The Council makes payments to foster carers made up of two parts, a weekly maintenance allowance and a weekly professional fee. The Council’s policy for payments to carers who are approved under Regulation 24 of the Care Planning Regulations 2010 (temporary approval of a relative, friend or other person) (Regulation 24) is that they are only entitled to the maintenance allowance element of the fostering payment until they have full approval status for a child. Once approved by the Adoption Fostering and Permanence Panel as a ‘connected person’ foster carer the professional element of the fostering payment is added to the allowance.
- The Council’s policy says the professional fee also increases according to the foster carers abilities to meet the needs of more challenging and complex children and young people. The Council has some specialist foster carers. The section on Specialist Foster Carers says it will use them to place children with very challenging behaviour and emotional needs who would ordinarily be in a residential placement. Specialist foster carers are paid a higher fee to reflect their increased level of experience and skills. And will need several years of previous experience of working with difficult young people.
- Ms X is the maternal grandmother of Y and Z. In December 2014, when Y was three and a half months old, Ms X became a kinship carer for Y following court proceedings and able to care for her under Regulation 24 on a temporary basis. Y has severe complex needs and uses specialist equipment. Ms X received training by hospital staff to use some equipment to care for Y. Z was born in 2015 and Ms X became a special guardian to this grandchild in 2015. Ms X has not raised any complaints about payments received for Z.
- The Council paid Ms X £146 a week from December 2014 as a temporary kinship allowance to care for Y. The Council says this was according to its Financial policy as Ms X was not an approved foster carer. Ms X asked to be a carer for Y and the Council carried out a fostering assessment between December 2014 to June 2015. The Council increased Ms X’s allowance to £217 a week from 11 March 2015.
- Ms X was approved as Family and Friends Foster carer (connected person) by the Adoption, Fostering and Permanence Panel in June 2015. On 22 June 2015, the Council increased Ms X’s allowance to £490 a week to recognise Y’s high needs. The payment was made up of two professional fees of £136.50 (£273) and one maintenance allowance of £217. The Council also agreed to pay Ms X a one-time adjustment of three weeks payment in recognition of Y’s additional needs.
- Council officers discussed Ms X’s situation further and decided to increase the amount paid to Ms X on 11 August 2015 to £700 which matched the maximum allowance paid to specialist foster carers. The Council said it was in recognition of the caring Ms X carried out due to an assessment of the complex nature of Y’s needs. The Council agreed to pay the increased amount from the date Y was discharged from hospital back into Ms X’s care. The Council says Ms X also received additional allowances for holidays and birthdays from this date.
- In response to my enquiries the Council has clarified why Ms X’s allowance was gradually increased to the equivalent of the specialist foster carer and why she was not awarded this from the date she was approved as a foster carer. This was because she was receiving £146 at first according to its policy as she was not an approved foster carer. Y was only three and a half months to six months old during the time it was assessing Mrs X as a foster carer. The Council says the long-term implications of Y’s medical needs were not clear and were still being assessed.
- Once the Council approved Ms X as a foster carer her allowance in June 2015 was increased to recognise Y’s additional needs. It was increased in July 2015 as Y’s needs were assessed to be greater again. So, the Council confirmed it increased Ms X’s allowance over time according to Y’s needs.
- It did not consider Y’s needs were clear at the start of the placement with Ms X and it was only over time that the full extent of her needs became clear following medical investigation and analysis. The Council advised Ms X qualified for a specialist fostering allowance from 30 July 2015 following her approval as a kinship carer and in recognition of Y’s needs. It says once it assessed Y’s needs and ‘the level of support she would need from her carer was known the specialist allowance/status was given to Ms X’.
Complaint to the Council
- In 2017 Ms X complained to the Council about the allowances she received for Y. Ms X considered the Council should have paid her at the specialist foster carer rate from December 2014 when she first cared for Y. Ms X says Y’s complex needs remained the same and worsened since Ms X first cared for her. Ms X says Y needs 24-hour care. Ms X also complained the Council failed to make back dated payments to ensure she received the appropriate fees for the time she looked after Y until she received the same as the specialist foster carer amount.
- The Council considered Ms X’s complaints at stage one of its complaint procedure. It did not uphold the complaints and advised Ms X she was not entitled to full fostering fees until approved as a foster carer. The Council also said it did not consider it should back date any money and noted Y had been in hospital for periods when Ms X while was receiving her allowance. Ms X remained unhappy with the outcome and requested to go to stage two for an independent investigation.
- The Council appointed an IO and IP to consider the complaint. The stage two investigation report considered five complaints made by Ms X. The first two complaints are relevant to this investigation. These are the complaints she was not paid the appropriate foster care payments until she was a designated foster carer, and the Council did not make backdated payments to cover the whole period she was caring for Y.
- The Stage 2 investigation did not uphold Ms X’s complaints. It found that according to relevant law and the Council’s policy Ms X only became eligible for full professional fees when she was approved as a foster carer in June 2015. The report noted the training Ms X received from health professionals did not meet the role of a specialist foster carer. It also found Y did not fit the profile of a child the specialist fostering scheme was designed for and neither did Ms X meet the required criteria. But the Council agreed to increase Ms X’s fees in August 2015 in line with those of a specialist foster carer.
- The report found Ms X received the fees and allowances she was entitled to according to national guidance and the Council’s policy. The IO and IP considered Ms X was not entitled to receive any back dated payments before she was approved. The IP and IO noted according to the Council’s policy it is not required to make any backdated payments and it treats all foster carers the same in this respect. So, there was no good reason for the Council to pay Ms X any more payments above those she was entitled to and had already received.
- The Council responded to the Stage 2 investigation and noted that although Y has complex needs, she did not meet the requirements to receive services from the specialist fostering scheme. So, Ms X did not meet the threshold to be considered as a specialist carer. However, Ms X had been awarded the maximum amount of £700 a week (equivalent to a specialist foster carer allowance).
- Ms X was unhappy at the outcome of the stage two investigation and asked to go to Stage 3 and have the complaints considered by the Complaints review panel. The panel documents confirmed that Ms X was not a specialist foster carer but had eventually been paid an amount equivalent to the specialist foster carer allowance. The panel reviewed Ms X’s complaints but did not uphold them.
- In July 2019 Ms X became a Special Guardian for Y so the foster carers allowance ended, and Ms X received a Special Guardianship allowance for Y.
- I have reviewed the documents provided and consider Ms X received the correct amount of £146 as a weekly allowance from the date she first cared for Y until she was approved by the panel as a foster carer. This is according to the regulations and the Council’s Financial policy. The Council then increased her allowance while it was continuing to assess Y’s needs as they became clearer. The amount of allowance awarded to Ms X was a decision for the Council, and it exercised its discretion in recognition of Y’s complex needs. The Council then paid Ms X the maximum weekly allowance from July 2015 starting from the date Y was discharged from hospital back to Ms X’s care. This supports the Council’s view it recognised Y’s needs were increasing. I have found no evidence of fault by the Council in the way it assessed and increased Ms X’s allowance. Ms X was receiving the maximum allowance from July 2015 equivalent to the amount a specialist foster carer receives.
- The Council explained why it decided not to backdate any payments to Ms X from the date she first began to care for Y. This was because Ms X was not entitled to full fostering fees until approved as a foster carer according to the regulations and Council policy. So, it was for the Council to decide whether to back date any payments. The Council decided not to and noted Y had been in hospital for periods when Ms X while was receiving her allowance. While Ms X may disagree with the Council’s decision, it is one it is entitled to make.
- These conclusions were upheld by the stage two investigation and the stage three panel hearing. I would agree with the complaint investigations on these points. However, the Council is now saying that Ms X qualified as a specialist foster carer from July 2015 which was not the view of the complaint investigations. I consider it calls into question the accuracy of the information provided to the Stage two and Stage three investigations on this point. The Council did not provide information to the investigations it regarded Ms X as a specialist foster carer from July 2015. Indeed, the Council’s letters to Ms X after the stage two and stage three all mention the point, she was not considered a specialist foster carer, So I consider the failure to provide correct information to the stage two and stage three investigations was fault by the Council.
- I need to consider whether there has been any injustice caused to Ms X by this fault and whether Ms X would have continued with her complaints if she was aware she was regarded as a specialist foster carer in July 2015. I consider Ms X would have continued with her complaints as she believed she should have been awarded a specialist foster carer allowance from the date she first cared for Y and the amount back dated to then. Ms X has been receiving the equivalent of the specialist foster carers allowance of £700 a week since July 2015. Because of this, I consider any injustice caused to Ms X is limited to her time and trouble in pursuing her complaints under a misapprehension she was not a specialist foster carer. So, I consider the Council should pay Ms X £200 in recognition of any confusion caused by failing to clarify her status as a specialist foster carer, and for her time and trouble in pursuing her complaints.
- I consider the Council should also review the specialist foster carers section in its Financial policy for carers to ensure it is clear who may qualify. The section on specialist foster carers does not specifically refer to children with disabilities and health conditions such as Y. I recognise the Council under its Financial policy for Foster carers may exercise discretion to consider such cases where necessary. However, the additional clarity about children who may need additional care in the specialist foster carers section should prevent any confusion in the future.
- Within one month of the date of my final decision the Council has agreed to
- Apologise to Ms X and pay her £200 in recognition of the confusion caused and her time and trouble in pursuing her complaint under a misapprehension she was not a specialist foster carer.
- Review its section on specialist foster carers in its Financial policy for carers to provide clarity on those who may qualify to include children who may need additional care such as those with disabilities and health conditions.
- I am completing my investigation. The Council was not at fault in the way it paid a foster carer allowance to Ms X. But there was fault in its failure to provide clarity over Ms X’s status as a specialist foster carer during the complaint procedure. I have recommended a suitable remedy.
Investigator's decision on behalf of the Ombudsman