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West Sussex County Council (20 008 710)

Category : Children's care services > Fostering

Decision : Not upheld

Decision date : 16 Sep 2021

The Ombudsman's final decision:

Summary: Mrs X complained about the Council’s failure to pay her the correct fostering allowance since 2015 and its decision to partially backdate an increase allowance. We are satisfied the Council acted without fault when it decided to backdate her increased allowance to March 2020 only.

The complaint

  1. Mrs X complains about the Council’s failure to pay her the correct fostering allowance since 2015. While the Council has agreed to make a backpayment to March 2020, Mrs X says the Council should pay her from the date she started fostering.
  2. She wants to be paid what she was entitled to, and to what other foster carers in a similar position were paid.

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What I have investigated

  1. The issue that led Mrs X to complain to the Council and the Ombudsman occurred in 2015.
  2. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are clear and compelling reasons to do so.
  3. Mrs X did not become aware of the problem until 2020 when she found out her foster child was treated as a “first child” for the purposes of a different policy decision. I have therefore decided it is appropriate for us to exercise discretion in this case.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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

  1. I spoke with Mrs X and reviewed the information provided.
  2. I made enquiries with the Council and reviewed the relevant law and policy.
  3. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and policy

  1. Children who are looked after by a council may be placed in foster care. Carers are paid a fostering allowance when looking after children and the amount they receive will depend on the number of children placed with them, the age of the child(ren) and where they live. 
  2. A Special Guardianship Order (“SGO”) is a court order that gives a carer parental responsibility for a child. Councils can provide financial support if they consider it is necessary to ensure a Special Guardian can look after a child. Financial support can be a one-off payment for initial expenses or regular payments.

The Council’s Foster Care Payment Policy

  1. Under the Council’s policy, there are two elements of payment that a foster carer receives:
  • All Inclusive Allowance – to meet all of the normal living expenses incurred in caring for a foster child.
  • Skills Fee (formerly called a household allowance) – a reward fee payable in recognition of skills and knowledge demonstrated by the foster carer. This payment is the subject of Mrs X’s complaint.
  1. Prior to April 2021, according to the Council’s 2020/21 policy, Mrs X received £247.73 for her first child (child A) and £46.20 for her second child (child B), a total of £293.93 per week skills fee. A similar payment structure was in place from 2015.
  2. From April 2021, the Council has introduced a new policy where all cared-for children within the family are paid at the same amount and there is no reduction for second and subsequent children. Under the new policy, Mrs X receives £247.73 for child A and £247.73 for child B, a total of £495.46 per week skills fee.

What happened

  1. Approximately nine years ago, Mrs X started caring for a child (Child A) under a SGO. She received a financial support package. This was a standalone agreement and would be unaffected by any income changes until the child was 18.
  2. In 2015, Mrs X fostered a child (Child B). Because there was already another child in the household, the Council treated Child B as a second child for the purposes of calculating the household/skills allowance. This reduced the amount payable to Mrs X compared to what she would have received if Child B was treated as a first child.
  3. Mrs X says she complained to the Council at the time over the phone but was told she was receiving the correct amount.
  4. In May 2020, a £100 one-off Covid payment was awarded by the Council to in-house foster carers with two or more children. Mrs X did not receive this payment because she only fostered one child. She complained to the Council about this because for fostering allowance purposes, Child B had been treated as a second child since 2015. In August 2020, the Council agreed to pay Mrs X (and others in the same position) the £100 Covid payment. The Council apologised for not paying her from the outset. This issue is not part of this investigation.
  5. However, the Council’s inconsistent approach raised Mrs X’s concerns that she had been paid the incorrect amount since 2015 and Child B should have been treated as a first and not second child. She made enquiries of a local advice network and she was told that other foster carers with a SGO child in the household were being paid the higher, first child allowance.
  6. In August 2020, Mrs X asked the Council to review her case under its complaints procedure.
  7. In response the Council agreed to make a “payment variation” backdated to March 2020 and would continue to pay a higher allowance from April 2021 in line with its new policy.
  8. The Council refused to backdate payments further. It said the 2015 allowance was based on an assessment of the individual circumstances rather than by reference to specific criteria. It explained it had concluded, “that the policy should be disapplied”.
  9. Mrs X was unhappy with this outcome and brought her complaint to the Ombudsman. She says the Council has failed to provide her with a copy of the policy, “that had been disapplied” under which it made the decision in 2015. It was her expectation that such a policy would have clearly set out that any foster child, in addition to a SGO child, would be treated as a “second child” for fostering allowance purposes.

The Council’s response to the Ombudsman’s enquiries

  1. The Council made the following points:
  • In 2015, it was the Council’s “working practice” to match SGO payments to fostering allowances. For this reason, any subsequent children were paid at the lower, second child rate.
  • This “working practice” was applied uniformly to all similar cases.
  • In 2019, the Council received a request to vary this practice from another family (the Council has provided details of this arrangement to the Ombudsman on a confidential basis).
  • When the request was made, the Council was aware it would cause an anomaly with other cases.
  • For this reason, in response to Mrs X’s complaint, the Council agreed to pay the higher “first child” rate to all other affected families, including to Mrs X, backdated to March 2020, the date the increases allowance was first made to the other family.

Analysis

  1. The Ombudsman is not an appeal body and does not retake decisions properly made by a Council. The Ombudsman’s role is limited to checking if there was any fault in the way a decision was made. If there was no fault or flaw, the Ombudsman may not, by law, intervene in the judgment reached by the Council. This is the case even where the Ombudsman may have given different weight to a piece of evidence or reached a different decision on the same facts.
  2. In reaching my decision in this case, I have carefully considered the relevant policies and correspondence with Mrs X.
  3. In 2021, the Council revised its policy of paying less for second and subsequent children. This was to address recruitment issues as the previous approach was different to neighbouring authorities and was acting as a barrier to potential foster carers. While Mrs X welcomes this change, she says the Council should have been paying the higher amount from the start.
  4. The Council’s decision to increase her payments from March 2020, does not necessarily mean she was receiving the incorrect amount before. This is an argument put forward by Mrs X.
  5. The Council has confirmed in its response to my enquiries that the decision to treat Child A as a second child from 2015 was not in compliance with a formal written policy. Instead, it was described as a “working practice” that sought to align fostering payments with SGO payments.
  6. While I do not criticise this overall approach, the absence of a written policy has led to both confusion and later concerns about lack of consistency from Mrs X. It is understandable why the Council’s reference to “disapplying the policy” in its letters to Mrs X has added to the confusion here.
  7. The correspondence I have seen confirms the Council applied this “working practice” to other families (with one exception where it was a mistake that the Council agreed to honour). While Mrs X is of the view that other families have been treated differently, the evidence I have seen does not support this view.
  8. The Council was entitled to change its approach to foster carer allowances. I have read the relevant committee report supporting the 2021 policy change and its rationale for the change is clearly explained. This was a change the Council was entitled to make and the correct process was followed in doing so.
  9. The Council has explained why it decided to backdate payments to Mrs X from March 2020 only. This was the date it agreed to make payments to another family in similar circumstances.
  10. While Mrs X may disagree with the Council’s decision on backpayments, it is one it was entitled to make. For this reason, I have not found fault with the Council’s decision to not backdate payments further.

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Final decision

  1. I have not found fault in the Council’s decision to backdate a fostering allowance to March 2020 only. On this basis, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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