Summary: Ms Y complains the Council failed to provide advice about her potential eligibility to receive benefit payments whilst providing long-term foster care for two children. The Council upheld some elements of the complaint, implemented some service improvements, apologised and offered to pay £900 for the distress caused. This is an appropriate remedy and we do not recommend anything further.

The complaint

1. Ms Y complains the Council failed to advise her of access to benefits while providing long-term foster care for two disabled children. As a result, Ms Y says she has not received carer’s allowance or Disability Living Allowance (DLA) for either child until more recently.
2. Consequently, Ms Y says she has experienced avoidable financial hardship and has struggled more than necessary to care for the children.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. During my investigation I discussed the complaint with Ms Y and considered any information she provided. I also considered the response to Ms Y’s complaint.
6. Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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.

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What I found

What should happen

Foster care

8. Children who are looked after by a council may be placed in foster care. The care arrangements may be short or long term. 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. The rate is determined every April with the government setting a national minimum payment level. Foster carers can also receive one-off payments to meet other costs, for example, holidays and children’s birthdays.    

Complaints under the statutory procedure

9. Section 26(3) of the Children Act (1989) says all functions of the Council under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure. Investigations under the statutory procedure consist of three stages:
• Stage 1: Staff within the service area complained about try to resolve the complaint.
• Stage 2: An Investigating Officer (IO) and an Independent Person (IP) investigate the complaint. The IO writes a report which includes details of findings, conclusions and outcomes against each point of complaint (i.e. “upheld” or “not upheld”) and any recommendations to remedy injustice to the complainant.
• Once the IO has finished the report, a senior manager should act as adjudicating officer. They will consider the complaints, the IO’s findings, conclusions, and recommendations, as well as any report from the IP, and the complainant’s desired outcomes. The adjudicating officer should write to the complainant with their decision on each complaint (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
• Stage 3: A review panel considers the complaint. The panel must consist of three independent people. Following the panel, the members write a report containing a brief summary of the representations and their recommendations for resolution of the issues (The Children Act 1989 Representations Procedure (England) Regulations 2006 19(2)).
• The council must send its response to the panel’s recommendations to the complainant within 15 days of receiving the panel’s report. The response should set out how the council will respond to the recommendations and what action it will take. If the council deviates from the panel’s recommendations it should explain its reasoning in the response (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
10. The regulations specify the IO should be independent. They may be an employee of the Council but should have not been involved with the subject matter of the complaint. To ensure impartiality, the process is also overseen by an IP, who is neither an elected member nor an employee.
11. Unless there is evidence of fault in the investigation process, we will not usually re-investigate a complaint which has been through the full procedure. This is because a properly conducted investigation is independent and robust.

Key background information

12. Since 2016 Ms Y has provided long-term foster care for two children, whom I will refer to in this statement as D and E. Both children have additional needs and sometimes present with challenging behaviour. Ms Y says this is what prompted her to apply to the Department for Work and Pensions (DWP) in 2020 to receive financial help in the form of Disability Living Allowance (DLA).
13. After assessing her claim, the DWP awarded the care component of DLA for both children. Ms Y says D receives the middle rate of £467.40 every four weeks and E receives the lower rate of £345.20. In addition, Ms Y receives a weekly carer’s allowance of £69.70.
14. Ms Y says the Council did not signpost her to the DWP when she asked for financial help in 2016. Consequently, Ms Y says she missed an opportunity to make a successful claim four years prior and she estimates an approximate loss of £45,000 in potential DLA payments.

Stage one complaint response

15. Ms Y complained to the Council in April 2021 using the statutory children’s complaints process. In summary, the Council responded as follows:
• Between 2016 and 2019 D and E received support from the Children and Adolescent Mental Health Service (CAMHS) to help build their self-esteem and trust. In addition, the children have received ‘Theraplay’, and developmental therapy referred to as ‘DDP’ which the Council funded at a cost of £3400.
• Ms Y was not eligible to receive ‘Special Allowance Payments’
• General information about DLA is contained in the ‘Foster Carer’s Handbook’
• The Council did not anticipate that either D or E would be eligible for DLA payments because the Council has not heard of any previous awards made for children experiencing the effects of developmental trauma.
• The Council apologises for not advising Ms Y specifically about a DLA claim but does not consider her potential missed claim was due to Council fault.

Independent statutory complaint investigation

16. Dissatisfied with the response provided by the Council, Ms Y escalated her complaint to the second stage of the statutory complaints process. The Council allocated an IO and an IP to investigate the complaint. At the first stage of the process, the IO agreed ten heads of complaint with Ms Y. I will deal with each in turn below, along with a summary of the findings made by the IO, the adjudicating officer and the stage three panel.

Complaint 1: The Council did not advise Ms Y that she could apply for DLA, and she has missed £30,000 over a four and a half year period

17. The IO upheld this complaint because their investigation identified a lack of knowledge amongst Council officers about disabilities and DWP assessment. Although the stage one response referred to some general guidance in the handbook, the guidance is clear that foster carers should approach the Council as the first point of contact before applying for DLA. Furthermore, the DLA form seeks input from a social worker when applying for children in foster care. There was a missed opportunity by the Council to support a struggling foster carer.
18. It therefore follows that, in the IO’s view, officers are expected to be a source of knowledge about DWP benefits. However, when Ms Y contacted the Council to express her financial difficulties in December 2017, she did not receive any guidance about making a DLA claim. The IO found the Council did not have systems in place to support professionals in maintaining knowledge about DWP benefits and entitlement.
19. The adjudicator amended the finding to partially upheld because of the general information in the handbook, however they agreed the Council did not draw Ms Y’s attention to this information at the time.
20. The stage three panel felt complaint one comprised of two aspects:
1. Did the Council fail to advise Ms Y that she could apply for DLA?
2. Was Ms Y financially disadvantaged as a result of not applying in 2017?
21. The panel upheld the first element because, despite Ms Y asking for financial support, the social worker did not respond. Furthermore, the IO’s interviews of the officers revealed a consistent lack of knowledge.
22. In respect of the second element, the panel decided it was not possible to say if a DLA application made in 2017 would have been successful. The panel were not presented with any evidence to show that DWP’s criteria is the same as in previous years. The panel did not uphold the second element.

Complaint 1.1: This was despite Ms Y highlighting the needs of the family, their financial needs and the childrens’ issues

23. The IO upheld this complaint because the files showed Ms Y contacted the Council many times for additional funding, such as a loan for a family vehicle and grants for the children’s music lessons. Although an officer told Ms Y they would consider if any financial support was available, there is no evidence of any follow-up discussions.
24. The adjudication letter makes no reference to complaint 1.1.
25. The stage three panel made no finding because they said complaint 1.1 was a statement, rather than a complaint, and could not be investigated.

Complaint 1.2: Ms Y contacted the Council about enhanced payments due to the children’s needs. She was assessed but found not to be eligible. The Council did not give details of the assessment or any criteria to Ms Y.

26. The IO upheld this complaint because there was no evidence in the files to show the Council properly explained why Ms Y’s family were not eligible for enhanced fostering payments. There is ambiguity around enhanced payments, and no evidence to show the Council explained the eligibility criteria to Ms Y.
27. The adjudication letter makes no reference to complaint 1.2.
28. The stage three panel upheld the complaint because they agreed there was no evidence to show that officers explained the assessment process to Ms Y or provided details of the eligibility criteria.

Complaint 1.3: The Council wrongly declined Ms Y’s application for a loan

29. The IO did not uphold this complaint. The records show Ms Y contacted the Council in November 2017 to secure a loan for a new car. The Council wanted more information about Ms Y’s expenditure and the reasons for her financial difficulties to establish how she was managing her money. The records show the Council emailed Ms Y in January 2018 to advise that she had not provided all the necessary information and so her application for the loan would not proceed.
30. The IO found Ms Y would not have been eligible for a loan in any event, but it was unhelpful for the Council not to have told her at the beginning of the application process. As no such financial assistance was in place, the IO did not uphold the complaint.
31. Both the adjudicator and stage three panel agreed with the not upheld finding because they also found the Council did not provide financial assistance for cars.

Complaint 1.4: Ms Y says the Council should have been aware of the financial support available and failed to advise her

32. Like complaint one, the IO upheld this complaint because the files revealed gaps in the knowledge of officers about DWP applications and the eligibility criteria.
33. The stage two adjudication letter makes no reference to complaint 1.4.
34. The stage three panel agreed with the IO’s analysis because it said there were several examples of officers not having sufficient knowledge and providing wrong advice. The panel expressed concern about the Council’s handbook signposting carers to officers who do not have the necessary knowledge to advise and support.

Complaint 1.5: The children suffered detrimentally as a result of not receiving benefits

35. The IO reached a partially upheld finding for this complaint because they considered Ms Y and her children missed out on access to support. Despite this, the IO found Ms Y always ensures D and E have everything they need, even if this has created financial difficulties for herself.
36. Both the adjudication and stage three panel disagreed with the IO’s findings and made a finding of not upheld. This is because they felt there was no evidence to support the view that any delay in the DLA payments created financial disadvantage as we cannot know if Ms Y was eligible when she first started caring for D and E. Furthermore, Ms Y receives a fostering allowance which is subject to annual reviews. Any financial difficulties would have been highlighted during the review process.

Complaint 2: The Council did not advise Ms Y that she could apply for carer’s allowance which meant that her family missed £15,000 of benefit

37. As with complaint one, the IO found the records did not show the Council advised Ms Y about potential benefits such as carer’s allowance. Again, the IO found a lack of knowledge amongst officers and confusion about the DWP criteria when compared with criteria used by the Disabled Children team. The fostering handbook refers carers to their social worker and therefore carers should not suffer due to the Council’s lack of knowledge.
38. The adjudicator amended the finding to partially upheld because there is evidence of general information in the handbook, however they agreed the Council did not draw Ms Y’s attention to this information at the time.
39. The stage three panel felt this complaint was the same as complaint one but with the focus on carer’s allowance rather than DLA. The panel decided that staff did not advise Ms Y in an appropriate way but could not conclude that DWP would have made an earlier award of DLA and carer’s allowance.

Complaint 2.1: This was despite Ms Y informing the Council in October 2020 that she was awarded DLA for the children and their developmental trauma

40. The IO upheld this complaint for the same reasons as stated for complaint two. The adjudication letter did not make any reference to complaint 2.1. The stage three panel said it was not possible to make a finding because this was a statement, rather than a complaint, and therefore cannot be investigated.

Complaint 2.2: The Council should be aware of the financial support available and should have advised Ms Y that she was entitled to carer’s allowance

41. The IO upheld this complaint for the same reasons as stated for complaint two. The adjudication letter did not make any reference to complaint 2.2. The stage three panel agreed with the IO’s findings because the officers involved in Ms Y’s case should have a better understanding of benefit entitlement.

Complaint 2.3: The children suffered as a result of not receiving these benefits because Ms Y has not been able to fund the support they needed

42. The IO partially upheld this complaint for the same reasons as stated in response to complaint 1.5. The adjudication letter also said this was the same as complaint 1.5 and decided not to uphold the complaint for the reasons previously stated. The stage three panel agreed with the adjudication findings and said there was no evidence to show D and E experienced any financial disadvantage.

Complaint outcomes

43. The stage three panel made several recommendations for the Council:
• to ensure an up-to-date version of the Foster Carer Handbook is always available and accessible for foster carers online.
• to obtain information from Ms Y about the details to include in a DLA application. This information is to be shared with all carers in the area.
• to provide a practice note to social workers and their supervisors about possible benefit entitlement for looked after children and their carers.
44. At the final stage of the complaint investigation, a senior officer of the Council provided a response with the Council’s proposed actions. The letter explained the Council’s view that there was fault in the way officers supported Ms Y, but that:

“… there is no way of determining if, had you made a claim at an earlier date, DLA would have been awarded. Similarly, in the absence of knowing if DLA would have been awarded, it follows that there is no guarantee that Carers Allowance would have been awarded. This is because an award of Carers Allowance is dependent on whether other benefits such as DLA have been awarded”

45. The Council apologised and acknowledged the time and trouble Ms Y has experienced from the fault identified and proposed the following financial remedy:
• £300 in recognition of the time and trouble in the pursuit of Ms Y’s complaint
• £300 in recognition of the contribution this will have made to Ms Y’s anxieties
• £300 in recognition of the faults identified

Our findings

46. We do not reinvestigate matters which have already been subject to a properly conducted and independent investigation. To do so would not be a good use of public resources. Instead, our role is to consider the following:
1. Was the investigation properly conducted and are the conclusions evidence based. If not, would the Ombudsman reach a different view based on the information available to us?
2. Did the Council offer a proportionate remedy for the injustice caused by fault? If not, would the Ombudsman recommend any further remedial action?
47. In the complaint to the LGSCO Ms Y expressed her view that the remedy proposed by the Council was not sufficient. She says £900 does not go anywhere near far enough in remedying the impact of missed benefit payments between 2016 and 2020.
48. I have reviewed the complaint correspondence to decide whether, in my view, Ms Y’s substantive complaint needs further investigation by the LGSCO. Having read the complaint documents, it is my view there is no significant fault in the Council’s investigation: it was thorough and robust, involving a file review and interviews of the relevant officers. As the adjudication letter sets out, there is some criticism around the presentation of Ms Y’s complaint because there is unnecessary repetition and overlap. Furthermore, some of the headings are statements rather than complaints. With that said, I do not consider this had any impact on the conclusions made as each substantive point was properly considered.
49. It therefore falls to me to decide whether the remedy is proportionate. Firstly, the Council proposed several service improvements. Having reviewed these, I consider they are appropriate and will hopefully help foster carers in the future to receive a better level of support and advice from the Council about any financial assistance which they may be entitled to.
50. I have also considered whether the £900 proposed for Ms Y is appropriate and in line with what the LGSCO would recommend. Having discussed the complaint with Ms Y, it is clear she does not expect the Council to pay £45,000 which she considers to be equivalent to four and a half years of missed DLA claim. However, Ms Y thinks the Council should do more to acknowledge the impact of its poor advice, particularly because D and E both presented with challenging behaviour which Ms Y needed support with.
51. I agree that it is not possible to say, using the available evidence and on the balance of probabilities, whether an earlier DLA claim made by Ms Y would have been successful. We do not know with certainty whether the DWP criteria has changed in recent years and how the needs of D and E have fluctuated in this time. Therefore, in my view, what is left for the Council to remedy is the avoidable distress caused by uncertainty. This should be a symbolic payment rather than a reimbursement of any quantifiable losses.
52. In such cases the LGSCO’s ‘Guidance on Remedies’ suggests the following approach, “A remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1,000 may be justified. Exceptionally, we may recommend more than this”
53. It is my view that the £900 proposed by the Council is an appropriate symbolic payment for the distress caused by its fault. It is towards the top end of the LGSCO’s suggested scale and I do not consider Ms Y’s case is an exceptional one for which we should recommend more.

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Final decision

54. I have completed my investigation with a finding of fault and injustice. In our view, the Council has already provided a proportionate remedy for the injustice and there is nothing further we have recommended in this case.

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Investigator's decision on behalf of the Ombudsman