Decision : Not upheld
Decision date : 27 Apr 2018
The Ombudsman's final decision:
Summary: Ms X complained that the Council failed to provide adequate support to her when she looked after a child who was left in her care by his father, and instead treated it as a private fostering arrangement. The Council was not at fault in the way decided it was a private fostering arrangement or in the way it dealt with Ms X’s requests for financial support.
- Ms X complained that the Council failed to provide adequate support to her when she looked after a child who was left in her care by his father, and instead treated it as a private fostering arrangement.
The 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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended)
- 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 discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on friends and family care. I shared my draft decision with the Council and the complainant and considered their responses.
What I found
- Local authorities have a duty to safeguard and promote the welfare of children in their area who are in need by providing services appropriate to the child’s needs. A child supported in this way is a ‘Child in Need’. I refer to this as ‘section 17’ support. (Children Act 1989 section 17)
- Local authorities have a duty to provide accommodation for any child in need in their area who appears to them to need accommodation because:
- there is no-one who has parental responsibility for the child;
- the child is lost or abandoned; or
- the person who has been caring for the child is prevented from providing suitable accommodation or care.
- Private fostering is an arrangement made privately, without the involvement of the local authority, where a child under the age of 16 (or up to 18 if disabled) lives with someone not closely related to them for at least 28 days. In such cases the child’s parents keep parental responsibility and remain responsible for any financial support the child might need. However local authorities have a duty to satisfy themselves that the welfare of the child is being properly safeguarded and promoted.
- Councils’ duties in relation to private fostering arrangements are set out in the Children (Private Arrangements for Fostering) Regulations 2005 and the statutory ‘Guidance on Private Fostering’. They include the following.
- Where the council receives notice that a person proposes to or is already privately fostering a child it must visit the carer and assess if they are suitable to care for the child and if the arrangements are suitable. It must establish the wishes and feeling of the child about the arrangement and speak to the parents or other people with parental responsibility.
- The council must arrange to visit the child regularly.
- The council has the same duty to carry out a child in need assessment as for other children in its area. This is an opportunity to consider whether extra support can help the private foster carer better meet the child’s needs.
- Ms X is a single parent with two children and she receives welfare benefits. In 2016 Mr Y, who was a parent at her younger child’s school, left his son, C, in her care. C’s mother had died some years previously. Mr Y was working and struggling to look after his son. Ms X told the Council and asked for support. The dates when C first started living with Ms X and when she first told the Council that she was looking after him are matters of dispute between Ms X and the Council.
- The Council visited Ms X at home and carried out a private fostering assessment in August 2016. It decided the care arrangement was a private fostering arrangement. The Council considered that Mr Y was not capable of providing C with a safe and stable home environment because of his drug, alcohol and mental health problems, and that C should remain in Ms X’s care. Mr Y agreed to the arrangement.
- C stayed with Ms X for about a year until Mr Y decided to place him in the care of the Council while the courts considered his long-term care and living arrangements. Ms X applied for a Special Guardianship Order. During the time C was living with Ms X the Council carried out regular private fostering visits to see her and C at her home. Ms X told the Council several times that she needed financial support. At first Mr Y continued to claim Child Benefit for his son and pay it to Ms X. When he failed to renew his Child Tax Credit claim Ms X claimed the benefit in her own right along with Child Benefit for C. The Council gave her some payments under section 17 to buy items she needed for C and to supplement her income for a period when Mr Y was in hospital.
- In October 2016 Ms X made a formal complaint to the Council about lack of adequate financial support. She felt she should receive a regular weekly allowance as a foster carer to enable her to look after C. She said there was no arrangement with Mr Y to care for his son. Rather Mr Y told her he no longer wanted to look after C and left him with her.
- In response, the Council said when Ms X had first contacted Children’s Services in August 2016 she said she had been caring for C for three months. The Council said it carried out a private fostering assessment and recognised Mr Y had not been providing consistent financial support. This was why it gave her some section 17 payments. It said it also offered her some money to allow her to seek legal advice about applying for a Child Arrangements Order or Special Guardianship Order for C if she wished.
- Ms X continued to pursue her complaint. She argued that there was no arrangement with Mr Y and he had simply abandoned C into her care. Therefore she said it was not a private fostering arrangement. She said she needed more help as she was struggling financially.
- The Council gave its final response to the complaint in October 2017. This was after Ms X had asked the Ombudsman to intervene and we had referred the complaint back to the Council. The Council confirmed its position that Ms X had looked after C under a private fostering arrangement and it had provided her with some funds under section 17 to supplement her benefit income. However it agreed to carry out a financial assessment to see if she had suffered any financial disadvantage by looking after C. It did this by considering evidence of her income and outgoings over the period, and the benefit income she would have been entitled to receive. It found there was a period when she did not receive Child Benefit when she could have done. It agreed to pay her the equivalent amount to the missing benefit. Other than that, it did not consider there was evidence that she was at a financial disadvantage having C in her care.
- The Council says Mr Y left C in Ms X’s care when their relationship ended and Mr Y moved out of the family home. In one response to her complaint it says she first contacted the Council in July 2016 to explain what had happened. In another it says this was in August 2016. In each case it says that when she called, Ms X told the Council she had been looking after C for more than 28 days. The Council’s view is that as it was not involved in making the arrangement and it assessed it more than 28 days after it had begun, it was a private fostering arrangement.
- Ms X complains because she says she informed the Council as soon as Mr Y abandoned his son into her care. She says this was in July 2016 after Mr Y was evicted from his accommodation. She denied she was in a relationship with Mr Y, saying she became friendly with him and offered to take C to and from school to help him out. She said he had only stayed with her for one weekend after he was evicted and before she helped him obtain temporary accommodation from the Council. Ms X said she had no discussion with Mr Y about looking after C long-term. Mr Y had come to her house on a Friday when she had C with her, and told her she could keep him as he could not look after him any more. She says she contacted the Council on the Monday, the first working day after C had been left with her. She says it was the Council which delayed sending someone to carry out the assessment so that by the time the social worker visited, C had been with her for several weeks. Ms X says there was no private arrangement between her and Mr Y and the only arrangement she made was with the Council.
- I consider the evidence supporting each argument below.
Analysis – was there fault causing injustice?
- The key question is the extent to which the Council was involved in the arrangement for Ms X to look after C. If the Council had been considering accommodating C and had instead discussed him going to live with Ms X as his father was unable to look after him, it would be arguable that the Council had placed C with her as an alternative to accommodating him. It should then have treated Ms X as a family and friends foster carer and she would have been eligible for a payment equivalent to a fostering allowance.
- In this case, however, the evidence I have seen from the case records supports the conclusion that the Council was not involved in the arrangement for Ms X to start caring for C at her home. The records show that Ms X telephoned the Council’s Children’s Services on 12 August 2016. The note of the call says she rang:
“to inform that she has been caring for [C] for the last three months, with very minimal contact from father [Mr Y]. Father does not have a permanent address and they lived from place to place. [Ms X] also informed that she does not know where father lives”.
“She has provided stability for [C], taken him to school and ensured his health needs are met. [C] does want to see his father and yesterday he came around but told him that he knows that [Ms X] loves him, so he was no longer going to live with him.”
“This of course caused him a lot of stress and he cried. That was when she decided to call Children’s Services and she does not want him removed from her but wants to know what her legal position is and if she can get help with caring for him.”
- The social worker’s visit for the private fostering assessment took place on 19 August 2016. The record of the assessment refers to Ms X notifying the Council of the arrangement on 16 August, rather than 12 August. Ms X says she first called in July, and the Council has also referred to being told in July. However the Council has checked its records and says there is no record of a call from Ms X in July. But whether it was in July or August 2016, the evidence indicates that C had been in Ms X’s care for at least two months before the Council was aware of the situation.
- The report of the private fostering assessment provides further evidence of C’s living arrangements before the Council’s involvement. It also provides evidence that Ms X and Mr Y had been in a relationship, even if they did not share the same view about whether it would continue.
- As part of the assessment the social worker obtained the views of Ms X, Mr Y and C. The report of the assessment includes the following statements.
- Ms X and Mr Y had ‘begun dating’ in January 2016, but Ms X had ended the relationship shortly after.
- It was unclear whether they intended to remain in a relationship.
- C started living with Ms X on 2 May 2016.
- Ms X told the social worker that before C came to live with her full-time she had gone to different properties where she believed Mr Y had been staying with C. Because of drug and alcohol misuse taking place in these places, Ms X offered to care for C full time as she did not feel C was safe.
- Ms X told Children’s Services she had been caring for C since April/May full- time with minimal contact from Mr Y.
- At the time of the assessment C had been living with Ms X for the past four months.
- Based on the evidence I have seen I do not consider that the Council was at fault in treating Ms X’s care of C as a private fostering arrangement or in the way it responded to her requests for financial support. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman