Summary: We will not investigate this complaint about the amount paid to Miss X as a foster carer for her grandchildren. This is because there is not enough evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Miss X, complained about the amount the Council paid her as a foster carer for her grandchildren. Miss X said the Council was paying her a lower amount because of her connection to the children.

Back to top

The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))

Back to top

How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

Back to top

What I found

Background

5. The principle under the Children Act 1989 is that all children, including Looked after Children, should be cared for by their families or friends wherever possible. A council may fulfil its duty to accommodate a child by placing it with a connected person, such as relatives or friends. That person is then considered as a ‘connected’ or ‘family and friends foster carer’. The Council has to assess their suitability to care for the child and monitor the child’s welfare. The foster carer is then entitled to receive a weekly fostering payment to help care for the child.
6. All foster carers receive a weekly fostering allowance aimed at covering the cost of caring for a fostered child. They may also receive a fee on top of the allowance to recognise their skills, training and experience.
7. The courts held in 2001 that all foster carers must receive the same allowances whether or not they are family and friends carers. (R v Manchester City Council 2001) (the ‘Munby judgment’). The judgment did not cover the fee element.
8. Since the Munby judgment, caselaw has established that it is unlawful to pay different fees to connected person foster carers because they are connected to the child, rather than on the basis of some other objective criteria. (R (on the application of X) v Tower Hamlets LBC 2013) (the ‘Tower Hamlets judgment’).
9. The judgment said councils may need to adopt a different approach to assessing such foster carers. But as long as the different criteria for payment “are genuine and reasonably related to the task of fostering children looked after by the local authority, and so long as family foster carers are not excluded from seeking to meet them, there is no reason why they should not be criteria which unrelated foster carers are much more like to satisfy.”

Complaint response

10. In response to Miss X’s complaint the Council said it was paying Miss X as a level 2 foster carer. It explained such foster carers are assessed “in relation to their ability to meet the needs only of the specific child or children to whom they are connected”. But level 3, or ‘mainstream’ carers have the “skills and abilities to care for a wide range of children, of different ages with varying needs.” Level 3 carers will have undergone extra training and therefore qualify for a higher fee.

Assessment

11. We will not start an investigation into Mrs X’s complaint.
12. In line with the information in paragraphs 5 to 7 the Council pays the same fostering allowance to connected / family and friends foster carers as it does to mainstream foster carers.
13. The Council is not, however, paying Miss X a lower fee because of the family connection to her foster children. The different fee levels it pays are based on factors other than whether the foster carer is connected to the child. For example, the needs of the foster child(ren) and the training the foster carer has completed.
14. The Council is therefore paying Miss X as a level 2 foster carer because this is what she has been assessed as. Miss X has been assessed as a carer for specific children. The Council is paying Miss X a lower fee because she has not been approved to care for other children as a mainstream foster carer. It is not because of her connection to the children she is caring for.
15. We have previously considered the Council’s policy under the complaint reference 18001117 and did not find fault. There is also no evidence of fault here and so we will not investigate.

Back to top

Final decision

16. We will not investigate Miss X’s complaint because there is not enough evidence of fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman