Summary: Mrs X complained the Council failed to pay the full fostering allowance after she agreed to provide car for her four grandchildren causing anxiety and financial hardship. The period in dispute is about one month. The Council failed to properly explain the financial situation in respect of a private family arrangement and gave the impression it might make payments, which is fault. A suitable remedy is proposed.

The complaint

1. Mrs X complains the Council failed to pay the full fostering allowance after she agreed to provide care for her four grandchildren.
2. She says that the lack of financial assistance caused anxiety and distress and she had to rely on foodbanks.

Back to top

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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

Back to top

What I found

7. Councils have a duty, under section 20 of the Children Act 1989, to provide accommodation to any child in need in their area who requires it, as a result of:
• There being no person who has parental responsibility for the child;
• The child being lost or having been abandoned;
• The person who has been caring for the child being prevented (whether or not permanently, and for whatever reason) from providing the child with suitable accommodation or care.
8. When a child in need requires to be accommodated by a council, the law says the council must first consider placing them with family or friends, the relatives must be suitable and able to provide appropriate care. If the career becomes a family and friends foster carer, (sometimes referred to as a kinship carer), they are entitled to receive a fostering allowance and other practical support for them and the child from the council.
9. A private or informal family arrangement happens when a close relation has agreed with the parent to take on the care of the child. Under this arrangement there is no right to any financial support from the council although councils have discretion to provide financial assistance if it is considered necessary.

Key facts

10. Mrs X lives with her partner and two children. At the August bank holiday weekend in 2022, her four grandchildren all aged under 10 years, came to live with her. The mother of the children has addiction and mental health issues. Mrs X says that the arrangement for the children to stay with her was initially a temporary arrangement between herself and her daughter, Ms Z, and that her daughter also stayed with her.
11. Mrs X contacted social care to explain the situation and it carried out a welfare visit on 2 September. Due to previous involvement between the family and social care, and the increased concerns about Ms Z’s mental health, substance misuse and abusive relationship, it was decided to refer the matter to a child protection conference.
12. Further visits took place on 14 September and 10 October. At the meeting on 10 October, which took place at Ms Z’s home, the social worker explained she was recommending the case be presented to a child protection case conference due to the concerns about the children’s welfare. The notes of the visit say that Mrs X had indicated she would look after the four children but would need financial support from the Council to do this.
13. A strategy meeting took place on 11 October. Minutes of this meeting indicate they considered the children to be at risk of significant harm. The minutes also note that the safety plan involves them staying with Mrs X.
14. A further visit took place on 25 October. This visit took place at Mrs X’s home. The notes of this meeting state that Ms Z had returned to her own home the previous weekend with her partner and had left the children to be cared for by Mrs X. They go on to say that she was now back with her mother and trying to sort things out. The social worker spoke with Mrs X who said that she was not able to care for the children full-time without support. Mrs X told the social worker she would have to give up work and so would need financial support from the Council the same as being paid as a foster carer. The notes say the social worker agreed to talk to her manager about this as soon as possible. I have not seen any evidence to show this discussion took place.
15. An initial child protection case conference was held on 1 November 2022. The minutes of that meeting indicate the children were all living with Mrs X and that her input and support were considered a positive in their lives. The child protection case conference reached the unanimous decision that the threshold was met for the children to be the subject of a child protection plan.
16. Further child welfare visits took place at Mrs X’s home on 7 and 14 November as this is where the children were living. The notes of the meeting, under the heading “safety plan” say Ms Z is staying at her home address and the children are staying with Mrs X under a private agreement. It also notes the children are being very well cared for by Mrs X. The notes say the legal paperwork is being prepared.
17. I have seen notes of the management oversight of this case. The notes dated 15 November say that action should be taken to consider a section 20 agreement for all the children as well as consideration given to converting the current private fostering arrangement.
18. At the next welfare visit on 28 November, the social worker told Mrs X the paperwork for the legal process had been completed and she was now waiting for a meeting with the Council’s solicitor. She explained that the section 20 option could be considered once advice had been received from the solicitor. The notes indicate that while Mrs X welcomed this, she needed financial support. Mrs X said that Ms Z was giving some money from the benefits she received for the children but that there was a considerable deficit in weekly funds. The notes indicate the social worker will discuss financial support with their line manager.
19. The legal care process for the children continued throughout November and December 2022. In January 2023, Ms Z signed a section 20 agreement and the Council then agreed to pay Mrs X as a kinship foster carer. Mrs X says that she received payments of £400 on 5 January and £2,500 on 20 January before the regular kinship payments started. However, Mrs X believed the private arrangement ended on 10 October and that payments should have been made from that date. Mrs X made a complaint to the Council.
20. In its response dated 6 April, the Council said it had reviewed its records and noted that these show a discussion on 15 November which could constitute brokerage of care for the children. The Council therefore agreed to begin paying Mrs X for the four children from that date. Mrs X was not satisfied with this response and so complained to the Ombudsman saying that as well as not paying from 10 October, the Council had failed to make birthday and Christmas payments for the children.

Analysis

21. This complaint is concerned with financial support provided to Mrs X when she took in her four grandchildren because their mother was unable to continue to care for them. The Council has now paid Mrs X the equivalent of the fostering allowance from 15 November 2022. It has also made a payment to cover the Christmas and birthday payments. It did this after receiving my enquiries on this case, saying the failure to pay had been an oversight. I welcome the Council’s actions to rectify this error.
22. So the issue for my consideration is whether the Council should make Mrs X the equivalent payment of the fostering allowance for the period 10 October to 14 November. The Council says it made the payment from 15 November because it was at this point it would be concerned if the children returned to their mother’s care. It says it wished to support the children to remain with Mrs X even though there was no section 20 agreement in place.
23. I note that a management oversight discussion took place on 15 November 2022. The notes of this discussion mention a section 20 agreement for all the children as well as Mrs X becoming a kinship carer. In its response to Mrs X’s complaint the Council cites this discussion as when it could first be considered it arranged the placement. While this does document the first acknowledgement by the Council that the children would need to be placed with Mrs X, I am not persuaded this is when the decision was made.
24. The initial child protection case conference on 1 November decided formal action needed to be taken because the children were at risk if they stayed in their mother’s care. The notes state all the children were living with Mrs X. As a result there was no need for action to be taken to move the children as they were already in a safe place. I take the view that at this point the Council had a duty to provide the children with accommodation rather than it being a private family arrangement.
25. The courts, in another case, found that a council must give the carer enough information to allow them to give their informed consent to accepting a child under a private family arrangement. It said that “in particular, the carer must have known, because of what the council told them, that the child’s parent would continue to be financially responsible. Without that informed consent, the council could not side-step its duty. (London Borough of Southwark v D [2007] EWCA Civ 182)”.
26. The notes show that Mrs X raised the issue of financial support directly with the Council as early as 10 October. The social worker said on two separate occasions that she would discuss the matter with a manager. My enquiries to the Council about what Mrs X was told have not produced any tangible evidence. I consider that in response to Mrs X’s concerns about financial support, the Council should have properly explained that Ms Z would remain financially responsible. There is no evidence to show the Council did this but rather it gave Mrs X the impression it would consider providing support by saying it would be discussed with a manager. This is fault. By failing to be clear about the financial responsibilities, it cannot be said that Mrs X gave informed consent to this being a private family arrangement.
27. I note Mrs X considers the payments should be made from 10 October. I do not consider this is the appropriate date but rather 1 November is. I take this view because the welfare check on 10 October took place at Ms Z’s home and the notes suggest two children were living there with her and two were sleeping at Mrs X’s home. On the further visits before the child protection case conference, it appears that all the family, including Ms Z, were living with Mrs X and that Ms Z was contributing some money. However, the decision of the case conference on 1 November meant the Council had to ensure the children were safely accommodated and this was achieved by the children living with Mrs X. I am satisfied that Ms Z was living in her own home at that date.

Back to top

Agreed action

28. To remedy the injustice caused to Mrs X as a result of the fault identified in this case, the Council will, within one month of my final decision, pay Mrs X an amount equivalent to the foster carers allowance for the period 1 to 14 November.
29. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

30. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Back to top

Investigator's decision on behalf of the Ombudsman