Decision : Upheld
Decision date : 06 Mar 2018
The Ombudsman's final decision:
Summary: The Council failed to consider properly the financial arrangements for the complainant when she agreed to care for her nephew back in 2013. To remedy the significant injustice caused to the complainant by the Council’s faults, it has agreed to backdate the special guardianship allowance to the complainant as from 2013.
- The complainant, who I shall refer to as Ms X, has been caring for her nephew since June 2013. I shall refer to the nephew as Child B. Ms X complained that she had not received appropriate support from the Council and she had been misled when agreeing to care for Child B.
The Local Government and Social Care Ombudsman’s role and powers
- 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)
- If we are satisfied with a council’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)
How I considered this complaint
- I made enquiries of the Council and have obtained information from Ms X in writing and on the telephone.
- I issued a draft decision statement to the Council and to the complainant. I have taken into consideration their additional points when reaching my final decision.
- Under the information sharing agreement between the Local Government Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share the final decision statement with Ofsted.
What I found
- The Adoption and Children Act 2002 came into force in December 2005. It provided a new legal status (Special Guardianship Orders (SGO)) for non parents who wished to care for children in a long term, secure placement. Carers can apply for a SGO, without the council’s support, three years after the child came to live with them. A person with a Child Arrangement Order (an order which arranges where a child should live) can apply for a SGO with or without the council’s support.
- The SGO Regulations and Guidance sets out possible support services including counselling, advice, information and financial support. The then Department of Education and Skills (DfES) has produced a suggested model means test for adoption and SGO support payments.
- As well as regular financial support, financial assistance can be given for legal costs and to meet the child’s therapeutic needs. Councils can also give assistance for the purpose of ensuring the continuance of the relationship between the child and the special guardian including training, mediation and respite. Councils have discretion to make other payments which they consider are necessary.
- The Special Guardianship Regulations 2005 sets out what a council must have regard to when assessing a person’s need for support services. Financial support can also be provided in certain circumstances (of relevance to this case) where the child needs special care because of, among other things, disability or because of the consequences of past abuse or neglect.
- Regulation 9 states that financial support ceases when the child reaches 18, or ceases to have a home with the special guardian, or commences employment, or when there is a change in the financial circumstances.
- When providing support services, this should be reviewed annually. If support is to be ceased, the council should give the special guardian notice and an opportunity to challenge this.
- In February 2016, the Department of Education updated its guidance on the SGO Regulations.
The Council’s Policy
- The Council’s policy states that if the child was not in the care of the Council, it is at the Council’s discretion whether to assess a person for special guardianship support. The Council says it will normally only pay financial support for two years. But special guardians can request an assessment of support needs and a decision about continued support, including financial support, will be based on the outcome of that assessment.
The Ombudsman’s Focus report on Family Carers
- In December 2013, the Ombudsman issued a focus report about family carers. The Ombudsman highlighted certain key issues as follows: Has the council published a clear policy on family and friends carers? Are the rates to carers being paid in accordance with statutory guidance? Are timely checks being made on family and friends carers to ensure the suitability of the placement?
- The Ombudsman made several recommendations to promote good practice. One recommendation is that, where a council has had involvement with the child’s family before that child came to live with a family member, the council should be able to show it has explained to the carer the implications of agreeing to an informal family care arrangement, rather than becoming a family and friends foster carer.
Special Educational Needs
- The Children and Families Act 2014 changed the way councils should assess and provide for a child’s special educational needs. Where a child has special educational needs, a council should produce an Education, Health, Care Plan (EHCP).
- Child B’s birth parents have a history of involvement with social care due to concerns about their parenting abilities. The Council has had contact with the birth mother since Child B was born.
- In May 2013, Child B was admitted to hospital because of his low weight and other issues due to neglect. The hospital raised concerns about the birth mother’s care of Child B while at hospital.
- Ms X attended the hospital. The options for Child B was either to be placed in the care of the Council or to be placed with Ms X as a temporary family foster carer. It was felt that a return home to the birth mother was not appropriate or safe.
- There were meetings at the hospital involving the birth mother and Ms X. Ms X offered to care for Child B on a temporary basis. On 5 June 2013 Child B was discharged from hospital to Ms X’s care. The birth mother agreed to this. A Council social worker attended the meeting.
- The discharge sheet from the hospital referred to Child B being discharged to Ms X as a ‘temporary foster carer’. Ms X had also understood that this was the arrangement. At the time, she was a single parent with a young child. With the help of her family, Ms X was able to purchase essential equipment for Child B.
- Ms X says that there were no checks made by the Council on her or her family. Once discharged to her care, the social worker told her she had to obtain a Residence Order (now referred to as a Child Arrangement Order) for Child B. This was not something the social worker had mentioned or suggested at the hospital.
- Ms X enquired about this but, unexpectedly, she was made homeless and this dominated her time. She was placed in hostel accommodation with Child B and her child. She moved into privately rented accommodation and she restarted her relationship with her child’s father.
- Ms X says she visited children services asking for financial assistance for Child B but she says she received no response. In March 2015 Ms X had her second child. She moved into her present accommodation with her two children and Child B.
- At Child B’s two year health check, concern was raised about his speech development. Ms X ensured he attended a six weeks therapy course. In September 2015, Child B started at Nursery.
- In 2016 Child B started at school. The Head raised concern that Ms X had no parental responsibility for Child B. The Head explained that, if the birth parents arrived at school asking for Child B, it would be difficult for the school to refuse such a request.
- Ms X started to make her own enquiries about her situation and in November 2016 she made a formal complaint to the Council about its failure to support her in the care of Child B, both financially and emotionally, despite the discharge plan of June 2013 when it was noted she would be a temporary foster carer.
- The Council wrote to Ms X stating it could not consider her complaint because she had not made it within 12 months of when Ms X realised something had gone wrong. The Council also stated it had no record that Ms X was acting as a foster carer for Child B. The Council advised her to contact the Ombudsman which Ms X did.
- Child B’s school highlighted concerns about his development. Child B has now been diagnosed with special educational needs and he has an EHC Plan and additional educational support.
The Ombudsman’s involvement
- When I was allocated the complaint in March 2017, I wrote to the Council immediately, explaining that it was a concern that Ms X did not have parental responsibility and that it was only a matter of time before this became a problem. I said that Ms X now wanted to apply for a Special Guardianship Order but she needed help from the Council to do this and she also needed an assessment.
- I followed this up by making formal enquiries of the Council in April 2017. The Council responded to say it did not have a record of the hospital discharge note and that it appeared the placement of Child B was a private arrangement.
- However, the Council accepted that, looking at the case records, there had been concerns about Child B’s care from the birth parents and that the Council should have considered further assessment and support to Ms X at the time she agreed to look after Child B in June 2013. The Council also accepted that it was necessary for issues of parental responsibility to be resolved.
- This paved the way for the Council to seek to resolve Ms X’s concerns and provide appropriate support to her. The Council subsequently agreed to assess Ms X and her partner for a Special Guardianship Order and allowance.
- On further discussion, and after the Council’s initial assessment, the Council agreed to support Ms X in applying to the Court for a Special Guardianship Order.
- The Council also agreed that, as a result of the faults in 2013, it would consider backdating any SGO allowance. The Council subsequently agreed that this backdating should be to June 2013 when Ms X took care of Child B. The amount of backdating amounts to £24,500 and this has now been paid to Ms X and to her partner.
- Ms X applied to Court for a Special Guardianship Order and this was approved by the Court in February 2018.
- The Council failed to deal properly with the situation in June 2013 and Ms X was left to care for Child B without proper checks or support. This is fault and has caused Ms X an injustice.
- I have no doubt that, but for Ms X’s actions and her offer to care for Child B, the Council would have had to take Child B into its care in June 2013 and may well have had to take legal proceedings to safeguard his welfare. On that basis, I am satisfied that Child B would have become looked after by the Council and that Ms X should not therefore be disadvantaged because she stepped in to assist. It meant that she should have been regarded as a family foster carer.
- To the Council’s credit, once the Ombudsman raised a concern about Ms X’s situation, and about the Council’s previous lack of proper assessment and support, it agreed to try to resolve Ms X’s predicament, recognising also that she had no parental responsibility for Child B.
- Ms X has remained committed to caring for Child B, despite difficulties with her accommodation, the lack of support and in light of Child B’s learning difficulties. This is very much to her credit.
- The Council has now carried out an assessment and appropriate checks. The Council has also accepted that Child B has special needs and it has assessed Ms X and her partner for financial support and agreed a SGO allowance. The Council supported the making of the SGO to Ms X and to her partner.
- To remedy past errors, the Council agreed to backdate the SGO allowance to June 2013 which is the point when Ms X took responsibility for Child B. I also suggested that the Council should explain more fully, in its policy, the circumstances when a SGO allowance would continue beyond two years.
- The Council also failed to consider properly the statutory social care complaints procedure and that it did have discretion to investigate complaints despite the 12 month time restriction. But, as the Ombudsman has now investigated Ms X’s complaints, and the Council has agreed to seek to resolve it, I do not consider this has caused an injustice which warrants any further remedy.
- The Council has agreed a SGO and allowance which it has backdated to June 2013 when Child B came to live with Ms X. This has resulted in a substantial payment being made retrospectively to Ms X.
- The Council needs to remind officers of the ability to exercise discretion on the time restraints when considering whether to investigate social care complaints and the Council should consider whether its complaints policy requires updating to reflect this discretion.
- There has been fault causing an injustice to Ms X. The Council has now provided an appropriate remedy.
- I have therefore completed my investigation and I am closing the complaint.
Investigator's decision on behalf of the Ombudsman