Decision : Not upheld
Decision date : 17 Sep 2018
The Ombudsman's final decision:
Summary: Mr X complains the Council has not provided adequate support for him in his role as legal guardian for his nephew. However, the Ombudsman found no evidence of fault by the Council in this case. Some of Mr X’s complaint goes beyond the Ombudsman’s jurisdiction and would have to be resolved in court. Although he is unhappy with it, the support offered to Mr X since his nephew came to the country has met the Council’s legal obligations.
- Mr X complains the Council has not provided adequate support for him in his role as legal guardian for his nephew (who I will refer to as Z). He says the Council also refuses to consider Z as a formerly looked after child, despite the fact he was in the care of the German state immediately before coming to the UK.
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. 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)
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
How I considered this complaint
- I read Mr X’s submission to the Ombudsman and the documents he sent in support of it. I made enquiries of the Council and have reviewed the material it sent me in response.
- I sent a copy of my draft decision to Mr X and the Council and I invited them to comment on it. Mr X responded to it and I have carefully considered what he said. He asked me to speak to Z’s solicitor and I have done so.
What I found
- Z is a teenage asylum seeker who was living in Germany without any other family members. His wish was to come to live with his uncle in this country and his was to be facilitated by the Home Office under the United Kingdom’s treaty obligations. The Council assessed Mr X in August 2017 and decided he could provide suitable support to Z. It says this was partly because he said he could care for Z and meet all of his needs without support from the Council.
- In September 2017, Mr X was in contact with the Council’s social services department as he was trying to make final arrangements for the arrival of his nephew, Z, into the country. Mr X asked the Council for advice on organising legal guardianship for Z once he arrived in the UK. A social worker responded, saying he should get ‘independent legal advice’ about that matter and signposted him to the Citizen’s Advice Bureau. On 24 September 2017, Mr X sent an email to the Council. He said, “I took some advice and I am now giving you and the Council Children Services notice that I am applying in the Family Court for a Special Guardianship Order.” He asked for the email to be forwarded to whoever would carry out the necessary assessment from the Council.
- A Special Guardianship Order (SGO) can be granted by a court under the Children Act 1989. It enables a carer, who is often a relative, to be appointed as a child’s special guardian until they turn 18. The special guardian shares parental responsibility for the child with the parents but can make most major decisions about them without consultation. If the child is a ‘looked after child’, in the care of the local authority, that status ends once an SGO is granted. In return, the special guardian can apply for financial support from the Council.
- The Council says Mr X provided no proof he had actually applied for an SGO. It points even if he had, the application would not have gone through, because Z was not a ‘looked after child’ and was not in the United Kingdom. Also, it says Mr X could not have applied for an SGO without prior permission from a court, because he did not meet one of the categories laid down in the Children Act 1989 at that point. There is case law which says a person cannot give valid notice to a council until they have that permission.
- Mr X did not apply for an SGO. Instead, in October 2017, he sought an order from the German courts to make him Z’s guardian and it was granted. Mr X asked the Council to recognise this as the equivalent of an SGO. It obtained advice and, in November 2017, told him he could ask for the German court order to be validated by the Family Court, at which time it would apply in this country too.
- As the date of Z’s arrival in the country approached, the Council expressed some concerns to the Home Office about Mr X. In December 2017, the Home Office cancelled Z’s travel plans at short notice. The Council says it then tried to meet with Mr X to carry out a further assessment and to get some clarity about his living and financial arrangements. It points out the decision to cancel Z’s travel plans was one taken by the Home Office, rather than the Council.
- In December 2017, Mr X brought an action in the High Court against the Council to seek the registration of the German court order. The case was considered in January 2018 and, after submissions from the Council, the judge approved the application. As a result, Mr X was now officially recognised as having parental responsibility for Z in the United Kingdom. He again asked the Council for financial support equivalent to that of a special guardian, as Z had now arrived in the country.
- In February 2018, the Council wrote to Mr X confirming that it considered the German court order was not an SGO in line with Children Act 1989. It also pointed out that as Z had not been a ‘looked after child’, there was no automatic right to be assessed for an SGO.
- The Council said it carried out a Child and Family (CAF) assessment in January 2018. This led to a referral to the Family Support Team the following month, after Z had arrived in the UK and had been seen by the social worker in the case. The agreed plan was to help Mr X with, “identifying appropriate education, mental health support for [Z], housing, extra-curricular activities and financial support by reviewing the benefits you receive.” The Council did not consider Z to be a child in need, so the support given to Mr X was of quite a low level. The Council says it did however meet its obligations to an unaccompanied child migrant as laid down in the government’s guidance.
- Mr X believed Z had been a ‘looked after child’ in Germany and put that position to the Council. It replied, saying Z did not meet the definition in the Children Act 1989, which required him to have been provided accommodation by a local authority for more than 24 hours in specific circumstances. In March 2018, Mr X told the Council that he was going to look to get the Family Court order varied or revoked because he was not able to look after Z without support.
- To date, Mr X has still not formally applied for an SGO for Z. The Council says it believes Mr X relinquished his responsibility for Z in June 2018.
- In emails provided by Mr X and the Council, I can see he believed for some time the German court order was the equivalent of an SGO. His own solicitor later wrote to the Council and conceded that was a misunderstanding on his part.
- I cannot find any evidence which suggests the Council advised Mr X to obtain the German court order in November 2017. When he told it he wanted to be assessed for an SGO, it rightly advised him to seek independent legal advice. The Council is not responsible for Mr X’s actions at that time.
- Mr X has suggested in his later correspondence with the Council that it is in contempt of the court order issued by the High Court, because it is refusing to recognise the rights he believes the German court order gives him. If that is the case, Mr X should ask the High Court for a hearing on his allegation. It is not something I can comment on as contempt of court is a matter for the court which originally made the order.
- Equally, I cannot resolve Mr X’s dispute around the definition of a looked after child. Having reviewed the evidence, I am satisfied the Council’s position is not fault. It has applied a common-sense reading of the legislation and Mr X’s point has been considered by the Council’s legal advisers. If Mr X believes the position taken by the Council infringes his or Z’s human rights, or otherwise breaches the United Kingdom’s treaty obligations, he will have to argue his case in court. Providing an answer for such a question is outside of the Ombudsman’s jurisdiction.
- Finally, I have considered the support offered to Mr X since Z came to the country in January 2018. The gap between Mr X’s expectations and what the Council was offering him is clearly large. Mr X believes it was completely inadequate. However, I can see the Council formally assessed Z’s needs in January 2018. It points out Mr X said on some occasions he could support Z, only to then say otherwise later.
- After the assessment, its Family Support Team met with Mr X and spoke to him on many occasions. He was offered advice around finding a college place for Z as well as engagement with mental health services. The Family Support Team made enquiries with the housing benefit department and advised Mr X on how he could apply for a larger house through his housing association. He was also offered a small grant towards some of his out of pocket expenses, although the Council was clear this was an exceptional award.
- In summary, the evidence does not support Mr X’s complaint he did not receive enough support from the Council. I believe it has fulfilled its statutory duties and I am therefore ending my investigation at this point.
- There is no evidence of fault by the Council in this case. Some of Mr X’s complaint goes beyond the Ombudsman’s jurisdiction and will have to be resolved in court if that is what he wants. Although he is unhappy with it, the support offered to Mr X since Z came to the country has met the Council’s legal obligations.
Investigator's decision on behalf of the Ombudsman