Decision : Upheld
Decision date : 13 Mar 2018
The Ombudsman's final decision:
Summary: The Council failed to assess Mrs X’s circumstances properly when she took on the care of her nephews. When it carried out an assessment three months later it decided to treat her as a friends and family foster carer and pay her a fostering allowance. If it had assessed her properly from the start it is likely it would have made the same decision earlier. The Council has agreed to the Ombudsman’s recommendation to pay her a sum to make up for the allowance she missed out on.
- Mrs X complained that the Council failed to provide enough financial support for her from March 2015, when she took on the care of her nephews, until June 2015 when the Council assessed her as a friends and family foster carer and started paying her an allowance. She says it should backdate the allowance to the date when the children first came to live with her.
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)
- The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it. However, she may look at whether a council properly considered the findings and recommendations of the independent investigation.
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, policy and guidance on support for family and friends foster carers. I shared my draft decision with the Council and the complainant and considered their responses.
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
What I found
- Local authorities have a duty to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child’s needs. (Children Act 1989, section17)
- Local authorities have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. (Children Act 1989, section 47)
- 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.
- The local authority may not provide accommodation in these circumstances if the person who has parental responsibility objects. It can either provide the accommodation or arrange for accommodation to be provided. A child accommodated in this way is a ‘Looked After Child’. (Children Act 1989 section 20)
- The principle under the Children Act is that all children including Looked after Children should wherever possible be cared for by their families or friends. Therefore a council may fulfil its duty to accommodate a child by placing it with relatives or friends. That person would then be considered as a ‘friends and family foster carer’. The council has to assess their suitability to care for the child and monitor the child’s welfare. The family member caring for the child is then entitled to receive a weekly fostering payment to help care for the child at the same rate as a local authority foster carer.
- Parents may make informal family care arrangements directly with friends or relatives to care for their children. In this case the child is not considered to be a looked after child. The carer may not receive financial support from the council or may receive it in the form of section 17 payments.
- Statutory guidance ‘Family and friends care’ give guidance to local authorities on carrying out their duties in supporting children who cannot live with their own parents. It says:
“In assessing the suitability of a child living with a relative or friend or other person connected with the child as an alternative to care proceedings, local authorities will need to consider what support might be required to enable the arrangement to be successful, whether informal or by way of special guardianship or a residence order. Whether family members and friends are caring for a child or young person who would otherwise be looked after, who is already looked after, or is returning from a care placement, it is essential that proper recognition and effective support are given to ensure that the carers are able to safeguard the child and promote his or her welfare, and so achieve their full potential.”
- The Council’s ‘Family and Friends Connected Persons Policy’ says that in deciding whether or not a child who is cared for by a family and friends carer should be in care, the Council must act as follows:
- Where the Council has had direct involvement in arranging a Family and Friends placement to safeguard a child from significant harm, the child will in most circumstances become a child in care;
- When a parent is unable to provide a child with suitable accommodation or care, private family arrangements may be made. But where these are referred to the Council because of child protection concerns, an assessment of need must be made to determine whether support under section 20 or section 17 of the Children Act is most appropriate;
- If the Council has played a significant role in the arrangements, the local authority must explain clearly to the carer the legal status under which any support is being provided.
- Where a child cannot live within his or her immediate family and the Council is considering the need to look after the child, it will make strenuous efforts to identify potential carers within the child’s network of family or friends.
- “Support provided for any such arrangements will be based on the assessed needs of the child and not just their legal status, and will seek to ensure that family and friends carers are provided with support to ensure that children do not become a Child in Care of the local authority, or do not have to remain in care longer than is needed.”
- Mrs X’s three teenaged nephews were in the care of her sister, Mrs Y, after they had been removed from their parents’ care several years previously. Mr and Mrs Y had Special Guardianship Orders for the children. They lived in the Council’s area with the children but were receiving a Special Guardianship Allowance from another council, Council 2. They shared parental responsibility for the children with the children’s father.
- In December 2014 the Council received a safeguarding referral about the boys as they had disclosed ill-treatment by Mr and Mrs Y and said they no longer wished to live with them. The records show that the Council considered the placement may be breaking down and it sought legal advice.
- The Council held a strategy meeting in January 2015 and decided to start a child protection investigation.
- The Council then wrote to Mr and Mrs Y under the Public Law Outline (PLO) process. This is process under which councils take steps to try to avoid care proceedings. The letter set out the Council’s concerns about the care Mr and Mrs Y were providing for the children. It said to avoid care proceedings it would like to arrange a Family Group Conference with the wider family to look at support they would need, or at who could look after the boys if Mr and Mrs Y were no longer able to do so. The Council said it would need to carry out a child and family assessment. It drew up a working agreement for Mr and Mrs Y to sign, which included commitments not to physically chastise the children, and to provide them with essential support and a safe home environment. Mr and Mrs Y refused to sign the agreement.
- A few days later the children arrived at school saying they were not going back to Mr and Mrs Y’s home but were going to stay with Mrs X.
- The social worker discussed this with Mrs Y who at first said she did not think it would be possible for the boys to stay with Mrs X at that point as Mrs X had only just lost her husband. Later she told the social worker she had agreed with Mrs X the boys would stay with her for the weekend while Mr and Mrs Y were away. Mrs Y said she would discuss with Mrs X later if her nephews could stay with Mrs X longer term.
- Council records say that on 30 January 2015 the social worker spoke to Mrs X over the telephone and she said “she was very happy to care for the boys and made it clear that she can care for them in the future”. The notes say Mrs X would welcome a visit from a social worker to discuss this. Mrs X says the social worker called her to ask her if she could take the boys.
- Two weeks later the social worker visited Mr and Mrs Y. The notes of the visit say Mrs Y confirmed Mrs X had agreed to care for the children. The Council told Mrs Y it would support this decision if the family agreed, and it would arrange a Family Group Conference to discuss it. The Council contacted the children’s father who agreed the children would be better off living with Mrs X.
- The Family Group Conference took place in mid-March 2015. The Council says two days before the Conference the Conference Co-ordinator had a meeting with Mrs X at which she reported that she wanted the boys to live with her as she did not want them to go into foster care. The Co-coordinator recommended that Children’s Services visit Mrs X before the Conference as “she does not appear to understand the concerns and she wants to know what will happen if the boys don’t go to live with her”. I have not seen evidence that any further visit took place. Nor have I seen any case notes of the Co-ordinator’s meeting with Mrs X.
- At the Family Group Conference the family agreed that the boys would go to live with Mrs X. They moved in the same day. Mrs X says that when they arrived the Council said someone would come and see her to discuss support that would be available but no-one came.
- Two weeks after the children moved in with her Mrs X contacted the Council to ask about the allowance Mrs Y was receiving for looking after the boys. The Council offered her a food parcel.
- Over the next three weeks Mrs X contacted the Council several times to say she was struggling financially and needed help to care for the boys. The Council offered food vouchers, and some payments including a contribution towards fuel bills. It advised her to make claims for benefits.
- The Council then contacted Council 2 to ask about the Special Guardianship payments and whether they could be transferred to Mrs X. Council 2 explained that the payments would cease as the children were no longer with their Special Guardians. The allowance could not be paid to Mrs X instead. Council 2 told the Council that it would need to assess and provide any financial support for Mrs X.
- The social worker decided to seek legal advice about any support the Council should be offering.
- On 21 April 2015 the Council decided to carry out a financial assessment of Mrs X. Mrs X’s solicitor contacted the Council again at the end of April saying she was struggling and may not be able to continue looking after the children.
- In early May the Council asked Mrs X to provide some financial information. She said she was willing to apply to become a Special Guardian but would need financial help to make the application.
- In mid-May the Council’s records note a concern that Mrs X would not keep looking after the children unless she received payments from the Council and so the children would come into care. There was a home visit to Mrs X to discuss the Special Guardianship process and financial assessment.
- Mrs X contacted the Council on 11 June 2015 to say that if she did not receive financial support to help her look after the children she could not continue to do so and the children would have to go into care.
- A few days later the Council decided to assess Mrs X as a family and friends foster carer. The assessment recommended that “financial support is required to [Mrs X]. This will ensure she is able to afford to care and look after the children long term and secure the placement”. It said this would be a long-term placement “due to no other family members being available to take care of the children”. After obtaining consent from the children’s father for the Council to accommodate them, the Council approved Mrs X as a temporary family and friends foster carer. It later extended the approval. The Council paid her a fostering allowance from 24 June 2015.
- Mrs X asked the Council to backdate the allowance to when the children first came to live with her in March 2015. When it refused to do so she made a complaint. The Council considered the complaint under the statutory children’s social care complaints procedure. The key findings of the stage 2 Investigating Officer’s report were as follows.
- Mrs X was not entitled to a fostering allowance before the assessment was carried out because the Council had not placed the children with her. The decision was made by the family at the Family Group Conference.
- Mrs X may have expected she would receive the allowance her sister received but this was not a result of fault by the Council. The Council had not promised this and there was no discussion about financial support at the joint part of the Family Group Conference. It may have been discussed in the private family part of the meeting.
- When Mrs X asked for financial support the Council made reasonable efforts to provide short-term help, which Mrs X did not wish to accept.
- However the Council failed to take proper account of all Mrs X’s family circumstances when the children went to live with her. It should have looked more closely at whether she needed support, including financial support, given that she had just lost her husband.
Analysis – was there fault causing injustice?
- It was a big commitment taking on the care of three teenage boys. Mrs X had recently been widowed, was on a low income as a self-employed earner, and says she could not have managed without financial support. She says she used money she received from a policy to provide for the boys’ care in the first few months.
- I agree with the independent Investigating Officer and the Independent Person that as Mrs X was not actually approved as a family and friends foster carer until June 2015 she did not legally qualify for a fostering allowance before then. However the question for the Ombudsman is whether the Council should have assessed her formally as a family foster carer earlier, and if so whether she would then have qualified for the allowance. The Council says it did not do so because it had no significant concerns about Mrs X and because the family jointly nominated her to care for the children at the Family Group Conference. But it is not clear how it came to the view there were no concerns as there is no evidence of any form of checks or assessment at the time.
- The Council appears to be relying on the view that it was a private family arrangement and Mrs X volunteered to care for the boys. Mrs X disputes this and says she was asked to do so by the Council. The records do not confirm the position. Although they show that Mrs X said she was happy to take care of her nephews, they do not show what the social worker asked her. I have not seen records of any other discussion that was due to take place before the Family Group Conference. The records do confirm that the Council approached Mrs Y to discuss the potential move.
- However the IO and IP agree that the Council should have considered Mrs X’s circumstances more fully before the children went to live with her. In my view there is sufficient evidence to say on balance that if it had done so it would have found it needed to carry out a family and friends fostering assessment then in the same way it did three months later.
- The circumstances in which the Council became involved with the family in December 2014 were such that in my view the Council should have considered the need to accommodate the children. There had been a child protection referral, the placement was breaking down and the Council had started the PLO process. It was aware of the risk of the children going into care if alternative accommodation could not be found. It had a duty to ensure the welfare of the children would be safeguarded and promoted by going to live with Mrs X and that the arrangement would not be at risk of breaking down. It was aware the previous placement was supported under a Special Guardianship Order and should have known that the allowance could not simply be transferred to another carer. Yet there is no evidence of any discussion about whether Mrs X had the means to support the children financially, or needed any other form of support. The Council did not assess her as a potential carer or consider the risk of the arrangement breaking down without support.
- There is nothing in the case records to show the reasons for the decision to carry out the family and friends foster carer assessment in June 2015, although I have not seen any legal advice. The only difference I can see in the situation in June and in March 2015 is that in June Mrs X warned the Council she would not be able to continue to care for the boys unless she had some financial support. This is what prompted the decision to carry out the assessment.
- If the Council had carried out the assessment in March it seems likely the outcome would have been the same as it was in June, given that almost as soon as the children came to live with her she told the Council she would struggle without financial support. She would then have had a fostering allowance from the start of the placement.
- Therefore I consider that Mrs X missed out on the opportunity to receive a fostering allowance between March and June 2015 as a result of the Council’s failure to consider her circumstances properly and carry out a proper assessment.
- To remedy the injustice to Mrs X the Council has agreed to:
- apologise to Mrs X for not assessing her properly in March 2015; and
- pay her a sum to recognise the amount she missed out on for the period March to June 2015. This will be the difference between what she would have received in fostering allowances and what she actually received by way of section 17 payments. The Council will need to deduct any child benefit or working tax credit she received, as these benefits would not have been payable if she had been receiving a fostering allowance.
- I find that the Council was at fault in failing to consider Mrs X’s circumstances properly when she took on the care of her nephews. As a result she missed out on financial support she would have been entitled to. I am satisfied with the action the Council has agreed to take to remedy the injustice to Mrs X. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman