Summary: Miss Y complains she was not able to progress through the Council’s fostering payment scheme due to Council fault. After considering the available evidence, we agree with the findings made during the statutory complaints investigation. We do not find further fault and so, in our view, the remedy already provided is proportionate.

The complaint

1. Miss Y complains the Council wrongly told her she would remain on the lowest banding of fostering payments due to being a connected persons foster carer.
2. Miss Y says she was unable to challenge the Council’s position because it failed to give her information about the payment structure for foster carers. As a result, Miss Y says she lost the opportunity to progress through the scheme and receive a higher level of financial support for her family.

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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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 Miss Y and her partner, Mr Y, and considered any information they provided.
6. I made enquiries of the Council and considered its response alongside the conclusions made during the statutory complaints investigation.
7. Miss Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Foster carers and financial assistance

9. Children who are looked after by a council may be placed in foster care. Carers are paid a fostering allowance and the amount they receive depends on the number and age of children placed with them, and where they live. 
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)

Special Guardianship Orders and financial assistance

11. Family and friends carers may decide to go to court, sometimes with the help of the council, to gain a Special Guardianship Order (SGO) for a child. The SGO provides the guardian with some, but not all, parental responsibility for the child. The guardian would be free of the controls placed on looked after children and their carers. It would allow them to decide such things as the child’s health matters and schooling. Government intended special guardianship as one way to give a firm footing on which to build a lifelong relationship between the child and their carer.
12. Financial support and other services may be available for a special guardian, the child and the parents under the Adoption and Children Act 2002. There is no automatic entitlement to an assessment for support services unless the child was looked after by a local authority.

Complaints under the statutory procedure

13. 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.
14. Complaint 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).
15. 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.

Background of key events

16. In 2017 Miss Y asked the Council about becoming a foster carer for her two nephews. The boys moved to live with Miss Y and her husband under an interim care order granted in May 2017. The Council completed its viability assessment in August which concluded with a positive outcome and a recommendation for the boys to be placed with Miss Y initially for a period of six months.
17. In September 2017 the Council presented its assessment findings to the fostering panel with a recommendation to approve. The panel concluded with a successful outcome and a full care order was granted in October.
18. On 26 September, Miss Y signed a foster carer’s agreement which contained the following term: “Please read this agreement carefully and discuss with your supervising social worker if you wish to clarify any of the expectations… At the point of approval, you will be provided with the foster carers' handbook, which contains guidance and information on the fostering task and a set of all policies and procedures. You are expected to familiarise yourself with these”.
19. During her attendance at a carer’s support group in December 2021, Miss Y received information which caused her to believe that she was at a financial disadvantage. This is because Miss Y said she had been unaware of the opportunity to progress through the Council’s fostering payment scheme.
20. Miss Y made a written request to the Council on 30 December 2021 to be progressed from Group 1 to Group 3 of the scheme. The Council responded on 18 February 2022 to confirm its decision to place Miss Y into Group 2.
21. Dissatisfied with the Council’s decision, Miss Y complained to the Council in March 2022. The Council responded in May 2022 under the statutory complaints procedure. I will deal with the Council’s findings in the sections below.

Complaint investigation: Stage one

22. Miss Y made eight complaints at the first stage of the complaints procedure which I will summarise below, along with the Council’s findings.
• Miss Y said the Council told her in 2017 she would not be eligible to progress through the payment scheme. As a result, their family was disadvantaged. Had Miss Y been aware of the criteria needed to progress, she would have taken the necessary action. The Council did not uphold the complaint because it said there was no evidence it had told Miss Y she would remain on the lowest banding. The Council said information about payments is discussed at training sessions and Miss Y had access to the fostering handbook, bulletins, forums and support groups.
• The Council said Miss Y’s intention was to pursue a SGO with a package of financial support. Miss Y changed her mind, and this was recorded in the review on 11 November 2021. Miss Y later confirmed her decision on 7 December and completed the necessary fostering standards by 25 January 2022. The Council acknowledged the pressures on Miss Y which hindered her ability to attend training courses but noted that Miss Y’s nephews had received their holiday and birthday allowances since initial approval in 2017.
• Miss Y said the Council did not review her fostering support annually and there was a lost opportunity to raise her concerns. The Council said it completed yearly reviews of allowances in line with national minimum standards. It acknowledged there was some delay in 2021 due to ongoing discussions about a possible SGO. However, the Council agreed to uplift the allowances for 2021/2022 to be paid by Summer 2022. The Council also confirmed another review was taking place for 2022/2023.
• Following Miss Y’s decision not to pursue the SGO, and upon her request for Group 3 payments, the Council did a skills-based review which concluded that Miss Y met the criteria for Group 2. The Council made a backdated payment of £1814.40 to cover the period 31 December 2021 to 20 March 2022.
• Miss Y said the Council’s decision was wrong and she met the criteria for Group 3. The Council did not uphold this complaint. It said Miss Y has not attended all the training required for Group 3 criteria. The Council acknowledged Miss Y’s family pressures and said the social worker would work alongside Miss Y to help fulfil her training needs.
• Miss Y complained Mr Y undertook 11 of the 13 weeks of a training course but could not complete this due to her pregnancy. The Council said he needs to re-take the training from the start. In response, the Council said it is a requirement to ensure all training sessions are completed but agreed to look at other possible ways to cover the gaps missed. The Council also agreed to consider childcare needs to enable the carers to attend training courses.
• Miss Y said she completed the necessary training standards in 2017 but the Council could not find the records. The Council said it could not locate evidence of Miss Y completing the training before 2021. The Council also said minutes from panels between 2018 and 2020 referred to outstanding training needs. The Council invited Miss Y to provide evidence of training completed.
• Miss Y complained the Council delayed when making its decision to upgrade her banding. She submitted a request on 30 December and the Council responded on 18 February. The Council acknowledged the approval process took longer than usual due to the Christmas period. It apologised and backdated the payments accordingly.
• Miss Y said the Council did not share the fostering payment scheme with her and she only received this in February 2022 during a support group meeting. In response the Council said approved carers receive access to information from the fostering service about the requirements for each skill group. The Council said carers are allocated to a supervising social worker to answer questions. Furthermore, carers can attend support groups and forums to obtain information and advice. The Council acknowledged that some areas of its practice could be improved and that it will review the fostering paperwork, processes and communication.
• Miss Y said the Council did not respond to her request for horse riding provision for one of the children. In response the Council said it had not progressed Miss Y’s request for funding because horse riding provision was not accessible during the COVID-19 pandemic. The Council agreed to consider the funding request again.

Complaint investigation: Stage two

23. Dissatisfied with the complaint response, Miss Y requested escalation to stage two. Miss Y discussed her complaint with the appointed IO and agreed upon the terms of complaint on 10 March 2023 which Miss Y revised on 29 March.
24. The IO published their report 15 working days after revising Miss Y’s statement of complaint. After reviewing the relevant files and interviewing the members of staff involved with Miss Y’s case (other than those who no longer worked for the Council) the IO arrived at the following conclusions.

Complaint one – the Council failed to provide the fostering payments policy and Miss Y did not have the opportunity to progress through the pay bands.

25. The IO did not uphold this complaint. At interview the social worker told the IO that foster carers receive an information pack which includes the payment structure. The social worker also said this information is available online. However, due to the passage of time, it was not possible to say with certainty how much information Miss Y received in 2017.
26. The records show the Council completed its first review of the placement on 21 November 2018. The minutes of the review contain details of the training completed by Miss Y. The minutes show Miss Y had not completed all the necessary training and that, “the Local Authority care plan is to pursue a Special Guardianship Order. If this isn't successful, the standards will be completed within the next six months”.
27. The minutes of the second annual review held on 1 December 2020 also confirmed that Miss Y had not completed all relevant training. The minutes acknowledged the birth of Miss Y’s child in July 2019 and the impact this had on her availability. The Council said the outstanding training needed to be completed urgently due to the carers having been approved for three years.
28. The IO also pointed to the agreement signed by Miss Y in September which referred her to the fostering handbook with an expectation for carers to familiarise themselves with the contents. The IO said it would be good practice for the Council to give a copy of the handbook to all approved carers and to make a written record confirming this.
29. The IO also said the files showed Miss Y had not completed all relevant training and so she was not eligible for the higher payment scheme in any event. The Council received evidence of the required competencies in January 2022.

Complaint two – the Council delayed when responding to Miss Y’s request for Group 3 payments and did not backdate payments once approved.

30. Miss Y said she made a written request on 10 October 2022 to move to Group 3. She said the policy states the Council will complete a report within four weeks and any increased payment will be backdated to the date of the request. Despite this, the Council only agreed to backdate payments to 14 December which was the date when the Council visited to obtain information and view training certificates.
31. In her request Miss Y said Mr Y was due to complete the relevant training on the following day and would provide the training certificate as soon as available. On 13 October the social worker recorded their view that the carers needed to demonstrate a consistent commitment to meeting all fostering standards. This included completion of daily logs for both children.
32. In response, Miss Y provided copies of some completed logs. The Council said they needed to be done on a regular basis and to reflect an accurate account of the boys’ needs. It also needed certificates of training done in the last five months. The Council told Miss Y it would review her request for Group 3 payments in 12 months’ time. Miss Y said this was not in accordance with policy.
33. The IO found the Council was incorrect to tell Miss Y that she had to wait another year for a review. Carers are eligible to move to a higher payment group as soon as they can provide evidence to show they meet the relevant criteria. In this case, Miss Y did not provide evidence of the criteria being met when she made her request in October.
34. Although the assessment took longer than four weeks, the IO found this delay was intentional to allow Miss Y the necessary time to produce her evidence, which she did on 14 December 2022. Had the Council finished its assessment within four weeks, Miss Y would not have been eligible for Group 2 payments.

Complaint three –the Council did not respond to a request for funding.

35. In August 2020 Miss Y asked the Council to fund horse riding provision for one of the children. The Council asked her to obtain costings, which she did on 11 August. The SEND team put the request to panel on 18 August. The panel said the activity was for outside school hours and so social care should provide the funding as the child is looked after. The Council told Miss Y on 26 August that they were continuing to consider her request.
36. Internal emails in November 2020 suggested an application would be made to panel but that evidence of the child’s needs would be required.
37. The IO upheld this complaint because the evidence showed that officers wrongly believed that they needed costings from Miss Y, however Miss Y had already provided this information. Although there was no professional recommendation for the horse riding, the IO noted there was no evidence the Council had explored the benefits for the child through the assessment process.

Complaint four – Miss Y received inadequate and inconsistent advice about SGOs and could not make an informed decision.

38. The IO reviewed the records and found the Council advised Miss Y on 4 August 2017 to seek legal advice about an SGO. The social worker recommended a potential solicitor. Following this, the IO found the Council had discussed a possible SGO with Miss Y on at least nine documented occasions between July 2018 and May 2021.
39. Although Miss Y raised concerns about the financial implications of an SGO, the Council explained those concerns could only be resolved through a financial assessment which Miss Y chose not to complete. The IO did not uphold the complaint because the records show Miss Y would have received information personalised to her circumstances had she completed the financial assessment.

Summary of stage two recommendations

40. Miss Y listed a number of desired outcomes which the IO responded to when concluding her complaint.
• For the Council to move her to the appropriate payment band and to reimburse her for fostering payments for she would have qualified for had they been made aware of the fostering policy from the outset. The IO did not make any findings that would lead to this recommendation.
• For the Council to confirm that it will pay for horse-riding and for any other suitable therapeutic provision for the boys. The IO recommended the Council should revisit this issue and explore all possible sources of funding for horse-riding, or other activities which could meet the criteria for additional funding.
• For the Council to provide clear written advice about the financial support that would be provided, and the contact arrangements, for a SGO. The IO recommended that discussions take place with the carers about a financial assessment and completing a SGO support plan so they have a clear written explanation of the support they can expect to receive if an SGO was obtained.

41. The IO made some additional recommendations for the Council:
• to consider issuing practice guidance so the foster care payment scheme is provided to all foster carers at the point of approval and to be recorded on their file;
• to consider amending the payment scheme to make it clear that payments for a higher group can be backdated only to the date on which the carer has been able to evidence the criteria for that group have been met;
• to apologise to the complainants in writing for the failure to follow up the request for funding for horse-riding; and
• for staff to be reminded to make contemporaneous, sufficiently detailed records of all contact with family members, professionals and others on a live case.

42. The Adjudicating Officer (AO) reviewed the conclusions reached during the stage two investigation on 12 May 2023. The AO confirmed their agreement with all aspects of the IO’s findings and recommendations. The AO also provided an apology on behalf of the Council for complaint three.

Complaint investigation: Stage three review panel

43. Miss Y requested a review of her complaint at stage three of the complaints procedure. The panel went ahead on 26 July 2023. After considering the outcomes reached at stage two, the panel decided to maintain the findings and did not seek to overturn any of the conclusions. With that said, the panel did make some additional recommendations.
• To confirm the protocol for foster carer attendance at annual reviews to ensure carers are invited and can raise issues of concern.
• That case records specify any discissions about permanency planning for children, especially for those transitioning from foster care to SGO.
• If necessary, to complete a Training and Development Plan.
• To ensure carers receive clear information about the financial assessment process and ensure they are not financially disadvantaged if moving to SGO.

The Ombudsman’s analysis

44. Miss Y maintains her strongly held view that she should receive additional financial support backdated to 2017. As Miss Y has raised some concerns about the adequacy of the complaint investigation, I have referred to contemporaneous evidence, such as annual reviews, skill-based reviews and supervisory social work visits. These records show the following.
• The social worker shared a copy of the fostering payment scheme with Miss Y on 8 February 2022. This says that to be eligible for ‘Group 2’ payments carers must have “…agreed to undertake the core training programme and any other training identified by their supervising social worker”.
• The records show Miss Y was aware of the need to complete relevant training courses. The minutes of a foster panel meeting held on 20 November 2018 say “… they are hoping to start the 17 week ‘Nurturing Attachment’ course soon. They delayed completing the standards as the plan was for an SGO. They will start to look at completing them again”.
• On 3 January 2019 the social worker recorded they would email a copy of the updated training calendar to Miss Y. At this point, it remained the carers’ preference to pursue a SGO.
• The Council held a fostering panel meeting on 3 December 2019. The minutes of which say, “the LA care plan is to pursue a SGO. The standards (training) are still outstanding and will be completed in the next 6 months. Anticipated to be completed by June 2020 if SGO not successful”.
• In early 2020 Miss Y started to raise concerns about the financial implications of pursuing a SGO. The social worker noted they had posted a financial form to Miss Y so their finances could be assessed, and any financial queries answered. The social worker sent the forms again in February and April.
• On 29 June 2020 Miss Y confirmed her decision to put the SGO plans ‘on hold’. The social worker discussed the training plan and Miss Y said she would complete the ‘Nurturing Attachment’ course.
• During an annual review on 1 December 2020, the Council recorded, “[Mr Y] also attended the Nurturing Attachment training although missed the last 3 sessions so will need to access this again. [Mr Y and Miss Y] will also be encouraged to access the Me Learning online”.
• On 6 April 2021 the social worker recorded that they would send copies of the training calendar to Miss Y. They also noted that Miss Y was behind with recording daily care logs and would resume these again soon.
• The social worker noted on 11 November 2021 that they would re-send the training calendar to Miss Y.
• On 20 December 2021 the social worker recorded “… discussed carers completing the standards – I have previously discussed and provided these carers need [sic] to complete”.
• When completing the skills-based review in January 2022 the Council said Miss Y was working at Group 2 level and the fostering standards had only recently been completed. The Nurturing Attachment course was not complete and needed to be before Miss Y is considered for Group 3. The Council also noted that Miss Y needed to consistently attend foster carer support groups and show increased commitment to completing the boys’ daily care logs.
45. In my view, the IO’s conclusions were evidence based and there was no fault in the investigation process which would lead me to query those findings. As shown above, the records demonstrate that Miss Y was aware of the need to complete core training courses. There were several factors which hindered Miss Y’s ability to do so, but in my view these factors were not due to Council fault.
46. It is also relevant that Miss Y initially wanted to pursue a SGO, and so minimal fostering training was completed between 2018 and 2020. Although Miss Y had some concerns about the financial implications of moving from fostering to special guardianship, the records show the Council sent the relevant forms more than once so that a financial assessment could be completed. There is no evidence to show Miss Y completed and returned these. Had she done so, Miss Y would have received details of her eligibility for financial support, and this would have helped her to make an informed decision sooner.
47. However, I note from the files there is no evidence of the Council completing and sharing a personal development and training plan to outline the shared objectives. With that said, there is evidence of regular social worker visits and reviews which included discussions about training needs and timescales. The social worker also provided the training calendar. There were also clear discussions about Miss Y’s completion of the daily logs.
48. Therefore, even if the Council had shared a training plan with Miss Y, it is my view, on the balance of probabilities, that the outcome would have been the same. This is because the factors which hindered Miss Y’s progression through the payment scheme would not have changed. The recommendations already made during the complaints investigation are therefore proportionate.
49. The Council has provided evidence to show it has completed the recommendations made at stages two and three of the complains investigation. As the Ombudsman has not found any further fault causing injustice, we do not make any additional recommendations.

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Final decision

50. I have completed my investigation. The Council has already upheld some elements of the complaint and provided a proportionate remedy. In our view, there is no additional fault and so we have not recommended any further remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman