Summary: Mr and Mrs X complained the Council paid them significantly less than other foster carers. There is no evidence of fault in the rate of pay Mr and Mrs X received as foster carers.

The complaint

1. The complainants, who I shall refer to as Mr and Mrs X, complain the Council has failed to recognise them as level 5 foster carers when they have the same or similar experience as other level 5 foster carers in the area.
2. They feel the Council should regard them as level 5 foster carers and backdate payments accordingly.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. If we are satisfied with an organisation’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

6. I considered Mr and Mrs X’s complaint and the information they provided.
7. I considered the information I received from the Council in response to my enquiries.
8. Mr and Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received from Mrs X before making this final decision.

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What I found

Relevant law and guidance

9. Local authorities must pay fostering allowances to all foster carers that are sufficient to meet the true cost of caring for the child.
10. 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).
11. 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

12. This is a list of key events relevant to the matters I have investigated. It is not an exhaustive list of every event that happened.
13. Mr and Mrs X were first approved as foster carers in May 2018. They were approved for one child until March 2022 when their approval was increased to two children.
14. The Council’s fostering allowance rates were based on an accreditation framework. It consisted of levels 1-5, with level 5 the highest level of accreditation. Each level had a corresponding rate of pay with the highest rate for level 5 foster carers. Mr and Mrs X were approved as level 4 foster carers in May 2018 and remained at this level.
15. Since being approved, Mr and Mrs X have had 5 placements with one of the children being placed twice with them. They have been paid at the relevant rate for level 4 foster carers since they were approved.
16. On 1 June 2021, the Council sent communication to all its foster carers to advise them that it had temporarily stopped the accreditation levels while it undertook work to review the fees and allowances.
17. Council records show that on 22 July 2021, Mrs X enquired with her Supervising Social Worker (SSW) about becoming accredited at a higher level.
18. In January 2022, Mr and Mrs X complained to the Council because they felt they had been treated unfairly and inconsistently to other foster carers. They said they had completed the relevant training and Mrs X had completed a degree. Mr and Mrs X were of the view that other foster carers with similar or less experience than them had either been approved as level 5 foster carers or had attained level 5 after encouragement from their SSW. They felt their SSW did not encourage them and that they had been paid significantly less than other foster carers over the previous three years. Mr and Mrs X felt they were ‘out of pocket by just over £21,000’.
19. The Council met with Mr and Mrs X on 25 March 2022 to discuss their complaint. The Council said it was unable to ‘address historical issues’ but offered support for the two children Mr and Mrs X were caring for at the time. Mrs X stated she did not need any support caring for the children.
20. From 6 April 2022, levels of accreditation and corresponding rates of pay were no longer in place and the Council implemented a new policy which provides differing rates of pay depending on the needs of the child. Existing carers with placements made prior to 6 April 2022 remain on the previous payment scheme and will move to the new scheme from 1 November 2023. This means that those on a lower payment have to wait for an increase in their fees and allowances.
21. The Council’s final response to Mr and Mrs X’s complaint, dated 14 July 2022, acknowledged the frustration the freeze on accreditation has caused and explained it was necessary to allow time for the implementation of the new policy and the transition period. It also explained that although it was unable to comment on other foster carer’s credentials and experience, it was of the view that accreditation to level 5 would not have been agreed in 2020 or 2021 because the relevant requirements had not been completed.
22. Mr and Mrs X remained unhappy with the Council’s response and brought their complaint to the Ombudsman.

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Analysis

23. 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 judgement reached by the Council.
24. Although we can only investigate matters that are no older than 12 months, I have exercised my discretion and investigated older matters because I feel they are pertinent to Mr and Mrs X’s complaint.
25. Mr and Mrs X’s approval as foster carers was considered by a Panel consisting of independent members, a County Councillor and an independent social worker. The minutes of the meeting from May 2018 show various factors were considered when approving Mr and Mrs X as foster carers and reasons were provided for the approval at level 4. I can see no evidence of fault in how the Council made its decision.
26. Mr and Mrs X are of the view they have been treated unfairly compared to other foster carers. At the time their application to become to foster carers was being processed, all applications were decided by a Panel and if the application was approved, the Panel would also consider the level of pay the foster carers would receive. These were decided on a case-by-case basis and approval was based on the individual circumstances of each case. I have found no evidence to suggest Mr and Mrs X’s application and accreditation was decided unfairly.
27. Mr and Mrs X say they advised their SSW about their desire to become level 5 foster carers before July 2021. I have found no evidence of this conversation in the supervision notes from September 2018 to June 2021. Nevertheless, the Council has said that accreditation to level 5 for Mr and Mrs X would not have been agreed in 2020 or 2021 because the relevant requirements had not been completed.
28. The Council is entitled to change its approach to foster carer allowances. I have read the relevant committee report supporting the 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.
29. The Council has explained its reasons for freezing the accreditations and the rate of pay for existing placements. This was to enable the transition from the old policy to the new model. I appreciate Mr and Mrs X may feel this is unfair, but this applies to all foster carers with placements made prior to 6 April 2022. For this reason, I do not find the Council has treated Mr and Mrs X unfairly.

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Final decision

30. I have found no evidence of fault by the Council. I have completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman