The Ombudsman's final decision:
Summary: Mr and Mrs P complained the Council had failed to put in place what had been agreed by the independent investigating officer and a senior Council officer at adjudication. This had caused them time and trouble and distress trying to get clarity. Agreements that were meant to be agreed in 2019 were still outstanding. There is evidence of fault and the Council has agreed to complete the outstanding actions and to make appropriate payments.
- The complainants, whom I shall call Mr and Mrs P, complain that the Council failed to put in place recommendations agreed by the Stage Two investigation into their complaint. That investigation also failed to acknowledge information in the Council’s possession, which supported their claims.
- I am dealing with the latter point first, as this relates to the complaints that were not upheld or for which there was no finding.
The Ombudsman’s role and powers
- 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) I have exercised discretion to consider these complaints from 2013 due to the ongoing injustice.
- 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)
- We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we could add to any previous investigation by the Council, or
- it is unlikely further investigation will lead to a different outcome.
(Local Government Act 1974, section 24A(6), as amended)
- 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.
- 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 considered the information provided to me by Mr and Mrs P and I spoke to them on the telephone. I made enquiries of the Council and assessed its response. I sent Mr and Mrs P and the Council a copy of my draft decision to take any comments they made into account before issuing a decision.
What I found
- Mr and Mrs P fostered a sibling group of children in 2013. In order for them to do that, the Council agreed to adjoin their house with another (so the space was big enough) and to pay some additional allowances to compensate for Mr P having to give up work.
- Mr and Mrs P remained unhappy as they did not feel the Council had provided them with the support it had verbally agreed. They tried to make a complaint at Stage One of the statutory complaints procedure but because this involved more than one part of the Council, it was not answered. The Council agreed to go straight to Stage Two where an independent investigator and an independent person are appointed.
- Mr and Mrs P submitted thirteen complaints to the Stage Two investigation. Eight of their complaints were upheld, three (complaints 6,9 and 10) were not upheld and there was no finding on two (complaints 4 and 5). I am satisfied the Stage Two investigation is robust enough to rely upon. Under those circumstances we would generally look at the complaints that were not upheld and also the findings from the investigation to see whether the identified remedies were put in place.
- I shall look at the complaints that were not upheld, or where no finding was made first and then at the recommendations.
Complaints that were not upheld or where no finding was reached
Complaint Four - That either the commitment by Swindon Borough Council that Mr P would be compensated financially for not working, or that Mr and Mrs P would receive enhanced foster care allowances, has not been honoured.
- I have a set of handwritten figures, which I believe, on the balance of probabilities, to be from Mr and Mrs P. These highlight that Mr P’s wages were £2,070 per month, which totals an income of £24,840 per annum (nett). Broken down, this is a sum of £478 per week. I shared the amount to be made up on the telephone with Mr and Mrs P. They did not provide any information to suggest the amount is incorrect.
- The Stage Two investigation report says that in 2017, Mr and Mrs P signed a 'Placement Plan' which confirmed the boarding out payments, holiday, birthday and Christmas payments, laundry and carers fees. The compensation for loss of earnings are made up of £35 x 6 children per week = £210 (advanced carers budget), £300 from the Additional Allowance Budget. There is also an additional payment of £80 per week carers fee.
- In 2019, the Council wrote to Mr and Mrs P to say the compensation for lost wages would be simplified and would now consist of £500 per week plus a ‘level 3 allowance’.
- On the balance of probabilities, I consider that the sum given compensates Mr P for his loss in wages. This complaint should not be upheld.
- In May 2013, Mr P was paid £1,300 in transport costs. At one point, this was also said to make up his loss of income. I do not know whether the family receives transport costs or should receive transport costs. This lack of clarity is fault. The Council is asked to consider this.
- Mr and Mrs P did not know whether the £210 that Mr P received through the ‘advanced carer budget’, and/or the £80 ‘carers fee’, and/or, now, the ‘level 3 allowance’ relates to money they should be getting for the children anyway because of their skill levels. The lack of clarity, because the money is coming from different ‘pots’, is fault. The Stage Two investigator highlighted that the Council should provide a breakdown per child of the money Mr and Mrs P should receive, as advanced carers (starting with the basic fostering allowance), and also include a breakdown of the way Mr P’s wages are made up. The delay in this being done is fault and has led to time and trouble for Mr and Mrs P.
- Mr and Mrs P told me the Council had acknowledged they were advanced carers but had only agreed to backdate their allowance from 2019. As it was agreed on 10 March 2014 that their skills levels were ‘advanced’ they would have expected to get an increased allowance from that date. The failure to backpay them the amount from then is fault. The Council should backdate their allowance appropriately.
Complaint Five - That the service costs associated with the adjoining property including gas, electric, water rates and house insurance have not been paid consistently by the Council as agreed.
- There is no evidence in the agreement signed in 2017 that the Council would pay any service costs associated with the adjoining property. However, given it was considered a ‘separate property’ and could have had separate bills for sewerage/water, for example, on the balance of probabilities the Council might have expected to pay for these. This is because Mr and Mrs P would expect to pay a single fixed charge on one property for specific services but not two fixed charges.
- Other utility bills are based on usage. It is not Council fault to expect Mr and Mrs P to pay those. If the Council expected Mr and Mrs P to pay fixed fees on both properties, I would find it at fault. I would ask it to repay Mr and Mrs P upon production of suitable evidence.
- Once the property was considered as ‘one property’ rather than two, there would be no expectation on the part of the Council that it would be liable for any service costs or house insurance. This is because there would only be one set of utility bills and one house to insure.
- Because I have no evidence that the Council has or has not paid fixed fee utility costs for the adjoining property, I cannot reach a finding on this complaint.
- One of the longstanding concerns Mr and Mrs P have had was with Council tax. An officer wrote to them on 13 March 2017 to say this was ‘paid at source and as such you do not have to worry about it’. The view has changed, after the Council took advice, to suggest Mr and Mrs P are liable for this. Nevertheless, the Council tells me it has been reimbursing them for the cost of the Council tax so there is no change to previous arrangements in practice even if, legally, the Council has not accepted liability for payment. The Council’s failure to explain this properly caused Mr and Mrs P time and trouble trying to establish what this meant in practical terms.
Complaint Six - That previous agreements that the Council would provide financial support for additional practical support to Mr and Mrs P has not been fully honoured. Whilst minimum payments towards laundry have been received, it was the more practical support such as cooking and cleaning that was wanted so that Mr and Mrs P had more free time to spend with the children.
- The only agreement that I have access to suggests the family would be given £50 per week in laundry allowances. Arguably, this could be used to ask people to fulfil other household chores too.
- I have no evidence that ‘practical support’ was agreed beyond this although I can see that a number of ideas for support were discussed at the outset.
- Because there was no evidence to show this had been agreed, the complaint was not upheld and I agree.
Complaint Nine - That the Council has not regularly updated/replaced laptops for the children which was originally agreed in the very first assessment. The Council has subsequently stated that the relevant paperwork was lost.
- Although I am sympathetic to Mr and Mrs P, there is nothing in writing to suggest this was agreed by the Council. On the basis of there being no agreement, it is not possible to find the Council at fault.
- This complaint was not upheld and I agree.
Complaint Ten - That Mr and Mrs P have not been provided with ongoing specialist foster care training as promised.
- This was not upheld as the Investigating Officer at Stage Two felt that Mr and Mrs P had been given training opportunities but had chosen not to attend. I cannot achieve more for Mr and Mrs P by investigating this point further. I agree with the finding.
- If Mr and Mrs P found specialist training (for example, fostering large sibling groups) with another council, and wished to participate, the Council might consider funding this.
Recommendations from Stage Two
- The Stage Two investigator made a number of recommendations, beyond what I have already mentioned, which were subsequently agreed by a senior officer at adjudication.
- The first was that the Council should meet with Mr and Mrs P and confirm all-encompassing agreements.
- One agreement would include issues that crossed over the areas of responsibility that are administered by social care and the housing department, It should cover; agreement on the weekly amount that Mr P will be compensated for (his wage at 2013 with evidence), how long this payment will be made and for how it would be made and an agreement on additional allowances e.g. laundry (what additional allowances will be paid to cover this payment), so that the payment schedule is understood by both parties.
- This was meant to be completed by January 2019 and has not been. This delay is fault and has caused Mr and Mrs P time and trouble to get clarity and some distress because they feel things are still not agreed. The Council has accepted it needs to ensure information is in place, and details have been properly set out, to enable such agreement to be reached.
- The second agreement was that a Tenancy Agreement was signed to cover any rent, reducing service charge, when the adjoining property returned to the Council and any financial implications.
- This was meant to be completed by January 2019 and has not been. This delay is fault and has caused Mr and Mrs P distress and time and trouble. I note the Council says it has prepared a Tenancy Agreement.
- The Council accepts it needs to ensure information is in place and to properly set out the details to enable these agreements to be reached.
- For the Council to consider whether the family should be paid for transport costs within two months of the date of my decision.
- For the Council to provide a breakdown per child of the money Mr and Mrs P should receive, as advanced carers (starting with the basic fostering allowance), and also include a breakdown of the way Mr P’s wages are made up within two months of the date of my decision.
- For the Council to backpay Mr and Mrs P’s allowance as ‘advanced carers’ from the date this was agreed within three months of the date of my decision.
- For the Council to repay Mr and Mrs P for any fixed fee utility bills for the adjoining property upon receipt of appropriate evidence (this includes sewerage and/or any other fixed-cost water bills). This should take place once Mr and Mrs P provide evidence with the aim of the action being completed within six months from the date of my decision.
- For the Council to ensure information is in place, and details have been properly set out, to enable agreements on tenancy and support to be reached. The Council says it has already taken steps to achieve this. I would expect it to have all of the information in place within six months of the date of my decision, which will allow the remedies identified here to inform its actions.
- For the Council to make additional payments of £200 for time and trouble and £200 for distress to Mr and Mrs P. These are token payments, in line with our guidance, to reflect the amount of time they have been waiting for a settlement to their concerns and so they can understand exactly what they are entitled to. The Council should make this payment within two months of the date of my decision.
- The investigation has found evidence of fault leading to injustice and a remedy has been agreed.
Investigator's decision on behalf of the Ombudsman