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Royal Borough of Kensington & Chelsea (20 002 666)

Category : Children's care services > Fostering

Decision : Upheld

Decision date : 09 Aug 2021

The Ombudsman's final decision:

Summary: Mrs X complained that the Council failed in its statutory duty to provide her with support as a foster carer. She also says the Council failed to pay her in line with the relevant guidance and failed to properly deal with her complaint. She says these faults caused her an injustice because she felt unsupported throughout her time as a foster carer and was paid significantly less than she should have been. We have found the Council was at fault. We have made recommendations to improve its complaints procedure and to backpay Mrs X what she should have been paid, as a long-term foster carer. We have also asked the Council to contact others who might have been in a similar position to Mrs X.

The complaint

  1. Mrs X complained that the Council failed:

a) in its statutory duty to support her when she was a foster carer,

b) to pay her in line with the relevant guidelines, and

c) to follow proper procedure when addressing her complaint.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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.
  4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  5. 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 spoke with the complainant and made enquiries with the Council.
  2. I researched relevant law and guidance.
  3. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Foster care allowances and fee schemes

  1. Local authorities must pay fostering allowances to all foster carers, including family and friends, carers, and other connected persons, that are sufficient to meet the true cost of caring for the child.
  2. The National Minimum Standards (“the Standards”) 2011, are a set of standards that are underpinned by regulations governing fostering. One of the standards is that the criteria for calculating fees and allowances should be applied equally to all foster carers, whether the foster carer is related to the child or unrelated, or the placement is short or long term. (Fostering Standard 28.7)
  3. The courts have found that it is not obligatory to pay fees to foster carers, but if a local authority makes such payments, it must treat all carers fairly. In R (on the application of X) v Tower Hamlets LBC, the Court of Appeal says that local authorities do not have to follow the Standards in terms of payment of fees. It says, “…the authority is free to depart from it, even ‘substantially’. But a departure from the guidance would be unlawful unless there is cogent reason for it, and the greater the departure, the more compelling must that reason be.”

What happened

Background

  1. Mrs X has cared for P since 2006, when she was a prospective adopter. In 2009, it was understood that she was going to adopt P. However, P asked not to be adopted but to continue to stay with Mrs X. The Council agreed that Mrs X could be his long-term carer, caring only for P.

Original agreement

  1. In the chronology provided by the Council it says that Mrs X was approved as a long-term foster carer for P in October 2009.
  2. In December 2009, the Council sent a letter to Mrs X confirming that the Council would only pay Mrs X a foster care allowance. It said she could not receive a foster care fee because she was not a ‘mainstream foster carer’ at the time of the match. It described mainstream foster carers as those that were part of a pool of carers available to have children placed with them on a short-term basis.
  3. The letter went on to say that the only exception to this policy were those carers who:

a) were on the fee paid scheme; and

b) were matched long-term with a child placed with them.

  1. The Council said that Mrs X and P had not been matched in that way, but instead, as a prospective adopter.
  2. This letter described Mrs X as a “long-term foster carer”. Mrs X was invited to discuss payment further if she had any queries. The Council says she did not raise any objections to that arrangement. Mrs X appears to have understood and accepted that in 2009 she was a long-term foster carer and that under the Council’s policy at that time, her role did not attract a fee because she had come to the role through being a prospective adopter rather than through the route of being in a pool of readily available foster carers.
  3. In its initial response to our enquiries, the Council said Mrs X was not a long-term foster carer, but instead, a long-term carer. It said it was regrettable that in some documents she was referred to as a long-term foster carer, which it says would indicate she was a mainstream carer, which it said was incorrect.
  4. The Council’s annual review documentation for Mrs X refers to her as a foster carer, stating that she was approved in 2009. In her 2017 review she was described as being a child specific long-term foster carer, where her supervisor said she “…exceeded the requirements of the Fostering Services: National Minimum Standards 2012.” The review also recommended that she was “…re-approved to provide long-term foster care to [P].”
  5. The Council said that although Mrs X was referred to as a long-term foster carer, she instead had a “bespoke arrangement” with the Council.
  6. As Mrs X lived outside the Council’s area, an agency, Agency P, was instructed to supervise P’s placement with Mrs X. In September 2011, the Council’s fostering manager wrote to Agency P setting out the terms of the arrangement. It said that the agreement would be reviewed on an annual basis until the placement ended, or when P turned 18.
  7. It set out what Agency P would do in terms of supervision, referencing its adherence to the Standards for foster carers. It also said the Council would update Mrs X about any change in policies. I have seen a copy of the letter, which has a space for the signatures of the Council, the agency and Mrs X.

Councils join together

  1. In April 2012, the Council merged with two other councils. When this happened, the Council said it recognised that varied financial arrangements were in place under the different authorities. It acknowledged that the service needed to streamline the support offered to carers under the shared service. It decided to adopt the Standards for foster carers.
  2. However, the Council said that in cases (like Mrs X’s) where agreements had been made prior to the joining of the councils, it was decided that those agreements should continue as they were unless a new placement was made. It said for this reason, Mrs X’s financial agreement would not have been renewed annually.
  3. The Council does not have a record of this policy decision. It says this approach was not known to council staff at the time of Mrs X’s later complaint because it had been archived. However, it said Mrs X was aware of it.
  4. In 2017, Mrs X was allocated a new supervising social worker, (SW1). SW1 viewed that Mrs X should have been paid like other foster carers for holiday allowances etc. He authorised a payment of over £12,000 to Mrs X. He also noted that Mrs X had not been paid a fee like other foster carers.
  5. The holiday allowance payment has been a matter of some contention since. When Mrs X later complained to the Council, she was initially told that the payment should have been made to her sooner.
  6. She was then told it should not have been paid at all as she was still tied into the 2009 ‘agreement’. In response to our enquiries, the Council repeated this view.
  7. However, in a more recent response the Council said that Mrs X should have been paid the holiday allowance but only from 2012, when the three councils joined and policy changed. In any event this does not matter because the Council has said it will not be seeking repayment from Mrs X.
  8. SW1 made enquiries about the possible underpayment to Mrs X in relation to a fostering fee. He was told that Mrs X’s situation was different to that of other carers because her agreement pre-dated the joining of the boroughs in 2012.
  9. Mrs X made enquiries and was told the same. She said that not only had the Council failed to pay her like other foster care workers, pursuant to Standard 28.7, it had also failed to abide by other fostering standards in her case.
  10. I made enquiries about the Council’s approach to a number of other fostering standards. From the Council’s response I note that it:
  • did not provide Mrs X with a statement of payment at the end of each year (Standard 28.2).
  • did not provide Mrs X with a written policy on its approach to payments annually. (Standards 28.5 and 28.6).
  1. It did not consider it had to annually review any fee paid to Mrs X (in line with Standard 28.3) because of her ineligibility for a fee. In its view Mrs X was tied into the agreement reached in 2009, as set out in the letter sent to her at that time, which she did not dispute.
  2. Following our draft decision on this complaint, the Council accepted all our findings and recommendations.

Analysis

  1. I will address each of the agreed complaint points in the order I set them out in my paragraph 1 above. I have combined a description of what should have happened with the Council’s complaint response with my analysis of it.

a) Council failed in its statutory duty to support Mrs X when she was employed as a foster carer.

  1. I have addressed this aspect of Mrs X’s complaint in the section “What I have Not Investigated.”

b) Council’s failure to pay Mrs X in line with the relevant guidelines

  1. The Council has changed its view now but it had previously said that it did not have to pay Mrs X a fostering fee because she was a party to an agreement entered into before it changed its policy for foster carers to be in line with the Standards. It said that instead Mrs X had a “bespoke” arrangement with the Council.
  2. In some documents Mrs X is referred to as a long-term foster carer, in others a foster carer, in others a short-term foster carer. Mrs X was annually reviewed as a foster carer. A supervising social worker conducted visits and wrote reports about her commendable foster caring work. She received a foster care allowance. She has recently been de-registered as a foster carer, (because her house is not big enough for another foster child). The 2009 letter the Council relies on also referred to her as a long-term foster carer.
  3. In response to our enquiries, the Council said it is regrettable that documentation refers to Mrs X as a long-term foster carer. It said that because Mrs X had a bespoke arrangement, she was not a long-term foster carer or mainstream carer. Instead, it said she was a long-term carer.
  4. However, as the Council now accepts, the documentation shows it was accepted by everyone she dealt with in association with fostering P, including the Council, that she was P’s long-term foster carer. There does not appear to be anything particularly bespoke about her arrangement. The only thing that set Mrs X’s arrangement apart from other foster carers was that she was not paid like others, in line with the Standards.
  5. The Council did not annually review Mrs X’s 2009 and/or 2011 arrangement to bring Mrs X’s payment in line with the Standards. The Council said this was because it had decided not to bring foster carers in line with the Standards if they had pre-existing arrangements, until and if a placement ended.
  6. Regardless of the fact that the letter sent to Mrs X in 2011 said the agreement should be reviewed annually, this should have happened annually anyway, as set out in the Standards. If the Council had, as it should have done, reviewed its agreement with Mrs X annually, it could have made her aware of its amended policy on payment for long term foster carers. She would then have had the option to consider her position. In my view it is likely she would have asked to have been paid like others in her position.
  7. In any event, I do not consider that the Council had a cogent reason to have operated a policy (which it has no record of) which meant that Mrs X was paid less than other foster carers while carrying out the same role.
  8. The Council provided a table purporting to show that Mrs X has been overpaid while in her “bespoke arrangement”. This would mean that at least financially, the Council’s apparent fault, would not have caused her an injustice. I did not accept that was the case. The evidence showed that Mrs X, in both name and action, was a mainstream long-term foster carer for P. In that role, she would have attracted a fee. The table the Council provided did not reflect this.
  9. The Council also said that over £12,000 paid to Mrs X was at her manager’s discretion. From the way the figures have been presented, the Council seemed to be saying that the payments made, along with the figure paid for holiday allowances, represented the overpayment the Council refers to. I did not accept that was the case.
  10. It is not obligatory to pay fees to foster carers but if a local authority makes such payments, as this local authority does, it must treat all carers equally. I made a recommendation, which the Council has now accepted, to remedy this long-standing failure to pay Mrs X in line with other foster carers who performed similar duties.

c) failure to follow proper procedure when addressing Mrs X’s complaint

  1. Both looked after children and foster carers are entitled to complain under the children’s statutory complaints procedure. It is not always appropriate to use the children’s statutory complaints procedure for foster carers but the Council’s policy says that that is the approach it usually takes. It confirmed that it had done so in response to my enquiries, although it appears to accept there were issues with stage two.
  2. The procedure to be used is set out in the Children Act 1989 Representations (England) Regulation 2006 and the statutory guidance issued in 2006: ‘Getting the best out of complaints’, (“the Guidance”). The Guidance was drawn up with input from the Ombudsman.
  3. There are three stages to the complaint’s procedure. Below I will set out what is expected and what the Council did:
  4. Stage one – local resolution. The maximum amount of time that Stage 1 should take is 20 working days. The Council’s complaints policy says a complaint is initially handed to a service manager to respond to the complainant.
  5. Mrs X first made a formal complaint to her fostering team manager on 23 August 2019. The Council responded on 24 September 2019, 22 working days after the complaint was lodged.
  6. Stage two - Investigation stage. The Council should appoint an investigating officer to carry out a detailed investigation with an independent person to oversee the investigation – the investigation should be completed within 25 working days.
  7. However, the Guidance says it may sometimes be impractical to address a particularly complicated complaint. In those cases, the time limit can be extended to a maximum of 65 days. All extensions should be agreed by the Complaints Manager.
  8. Mrs X asked for her complaint to be escalated to stage two on 13 October 2019. The Council did not appoint an investigating officer.
  9. The Council held a meeting between Mrs X and a senior member of the Fostering and Adoption Team, Officer D on 9 March 2020. Mrs X says she was told the officer would investigate and respond. However, at the time Mrs X took her complaint to the Ombudsman, on 2 November 2020, she had not received a response.
  10. Officer D, who was not an independent person, did not take any notes of the meeting. The Council says it did not write to Mrs X because it considered it could not change the facts as were presented in the original response. It was also considered that Mrs X would not hear or did not want to hear an explanation and that a further response would only upset Mrs X further.
  11. When the Ombudsman made enquires, we were told the Council had no response from Mrs X after the meeting. However, it then offered to go to Stage three.
  12. Stage three - Review stage. A complainant can request independent complaints review panel to consider the complaint. The panel must consist of three independent people. Independent means a person who is neither a member nor an officer of the council.
  13. This process was not followed by the Council. The Council wrote Mrs X a stage three letter. It said Mrs X should have been sent a stage two letter by the relevant officer. It signposted Mrs X to the Ombudsman if she was not satisfied with its findings.

Analysis of complaint response

  1. There is sometimes room for councils to decide whether to use the statutory complaints procedure or not. However, if it proceeds with the statutory complaints route, which this Council did, it should approach it in line with the Guidance.
  2. The Council’s response at stage one was 2 days late. However, that slight delay would not have caused Mrs X an injustice.
  3. The Council’s explanation of its failure to complete stage two of the process is more concerning. I accept that it was impacted by COVID-19 around this time but it did not need to convene a meeting with Mrs X. It was supposed to appoint an independent investigating officer and instead, it arranged for a senior officer from the department Mrs X was complaining about to visit her. This meeting was conducted four months after Mrs X had escalated her complaint. If it had responded as it should have, it would have completed its investigation within 25 or with an agreed extension, 65 days. It failed to do this. I am concerned by the Council’s response that this was because it felt Mrs X would not accept its position. That is not a valid reason to fail to provide Mrs X with a response to her complaint. Even if Mrs X had presented as being unreasonable (and I have seen no evidence that she was), the Council still had a duty to respond to her complaint. The Council accepts it should have written to Mrs X. This is fault and it caused Mrs X an injustice.
  4. Clearly, having failed to follow the statutory complaint’s procedure so far, it did not complete stage three. I am concerned that the Council’s response to my enquiries says that its final letter to Mrs X constituted stage three. I am also concerned that the Council gave the Ombudsman the impression that the reason it had not completed stage three was because Mrs X had not responded to it after the meeting held in March 2020. In fact, Mrs X was waiting for the Council’s findings following the meeting, which she never received and which it accepts should have been provided.
  5. The Council’s approach in general to Mrs X’s complaint was poor. It caused her an injustice because of the lengthy delay and because she felt aggrieved that her concerns were met without the due attention they deserved.
  6. Following our draft decision the Council has confirmed that it has reviewed its complaints process for handling complaints from foster carers.

Agreed action

  1. Within a month of our final decision, the Council has said it will:
  • Apologise to Mrs X for the faults identified in this decision.
  • Calculate how much Mrs X would have been paid in terms of a fostering fee since April 2012 to the end of her fostering registration if she had been treated as a long-term foster carer under the Standards. The Council should clearly show how it has reached its calculation, providing a copy of its calculations to Mrs X and the Ombudsman. It should provide a breakdown of payments for each year Mrs X was a foster carer for the Council.
  • Pay Mrs X the further sum of £500 to acknowledge the time and trouble she underwent pursuing payment and the frustration caused by the delay and poor approach to her complaint by the Council.
  1. Within two months of our decision, the Council has said it will:
  • Revise its policy for handling complaints from foster carers. It should ensure it is clear from the outset of a complaint which process it intends to follow and why. It should ensure that it adheres to the relevant guidance and policy on complaints handling. It should consider providing training to its complaints team to achieve this aim.
  • Inform any other foster carers who were kept on pre-existing foster care agreements prior to the joining of the councils of our final decision on this complaint. If the Council considers it should re-visit the payments they received until their payment structure was brought in line with the Standards, it should do so. If it does not consider this is necessary it should explain why, giving any carers affected the option to approach the Ombudsman if they choose.
  1. The Council should provide evidence it has completed all of the above to the Ombudsman.

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Final decision

  1. I have found the Council at fault and this caused Mrs X an injustice. Following our draft decision, the Council has accepted all our findings and agreed to implement the above recommendations. I have now therefore concluded my investigation.

What I have not investigated

  1. Mrs X says she regularly raised issues with the lack of support she had from the Council with both her agency and the Council. She says the Council failed to respond either effectively or at all. The restriction set out in paragraph 2 applies to this aspect of the complaint because these events took place too long ago. Because Mrs X could have brought her complaint to the Ombudsman at the time, I have not exercised my discretion to investigate this element of Mrs X’s complaint.

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Investigator's decision on behalf of the Ombudsman

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