West Sussex County Council (17 017 797)

Category : Children's care services > Friends and family carers

Decision : Upheld

Decision date : 15 Oct 2018

The Ombudsman's final decision:

Summary: Mrs G complained that the Council failed to assess her properly as a family and friends foster carer for her granddaughter. The Council was at fault in the way it considered the care arrangements. Mrs G missed out on the chance to receive a fostering allowance as a result. The Council has agreed a suitable remedy including a payment equivalent to the fostering allowance she should have received.

The complaint

  1. Mrs G complained that the Council failed to assess her properly as a family and friends foster carer for her granddaughter and failed to provide an appropriate remedy for her complaint about this matter. She says if the Council had assessed her properly at the right time she would have received a fostering allowance.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)

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How I considered this complaint

  1. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy. I shared my draft decision with the Council and the complainant and considered their responses.
  2. 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.

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What I found

  1. 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). I refer to this as ‘section 17 support’.
  2. 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)
  3. A child protection enquiry will start with an assessment of the family circumstances and may move on through strategy meetings and a Child Protection Conference, which may decide on a Child Protection Plan.
  4. 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. (Children Act 1989 section 20)
  5. 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 under ‘section 20’ is a 'Looked after Child'.

Family and friends care

  1. The principle under the Children Act is that all children including Looked after Children should be cared for by their families or friends wherever possible. A council may fulfil its duty to accommodate a child by placing it with relatives or friends. That person is then 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.
  2. 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.
  3. Sometimes councils and family members disagree about whether the council has placed a child with the family (and so is a Looked after Child) or whether it was an informal family care arrangement. In a key legal judgment (R(D) v Southwark LBC [2007] EWCA 182) the judge said:
    • Informal family care arrangements are usually made direct between individuals.
    • Where a local authority “takes a major role in making arrangements for a child to be fostered” the most likely conclusion is that it is exercising its powers and duties to accommodate the child.
    • If a local authority intends to help arrange informal family care rather than accommodating a child itself, it must be explicit with those involved. It must give clear information about who will be financially responsible for the child. If this is not made clear, the courts and others are likely to conclude that the local authority is making the placement itself. Only on receiving such information can a potential foster carer give informed consent to accept the child on an informal family care arrangement.
  4. If a Looked after Child is placed with a family member, friend, or anyone else connected with the child, the carer must be approved as a local authority foster parent. (Children Act 1989, section 22C)
  5. Statutory guidance ‘Family and Friends Care’ explains the approval process. the council must carry out checks and assess the placement to satisfy itself that it is the most appropriate way to safeguard and promote the child’s welfare.
  6. There will be circumstances where there is an urgent need for a placement and the most appropriate placement is with a family and friends carer but it is not possible to satisfy all the legal requirements for approval before placing the child with the carer. In these cases the council must assess the carer for temporary approval. The council may grant the temporary approval for up to 16 weeks and may extend this if necessary. (Care Planning, Placement and Case Review (England) Regulations 2010, regulation 24)
  7. If the council approves a connected person temporarily as a foster carer, the carer will be entitled to the same support available to unrelated foster carers, including a full fostering allowance.
  8. The Council’s ‘Family and Friends Care’ policy and its ‘Children’s Social Care Policy, Procedures and Practice Guidance’ say:
    • “An emergency placement with family or friends for a looked after child, without any checks or assessments is unlawful.”
    • A child can be placed with family or friends under section 17. The assessment must be that the child does not need the protection of being looked after, using the criteria in section 20.
    • A viability assessment should be undertaken immediately and conclude within ten working days of an emergency placement.
  9. Under the Council’s policies the social worker carrying out the viability assessment needs to make sure the potential carer is aware of the assessment and checks that will be needed. The assessment should look at a range of matters including the carer’s health, family background, support network, motivation, suitability and ability to bring up the child long-term, and their understanding of the child’s needs. It must also take account of the child’s and birth parent’s views wherever possible.

What happened

  1. Mrs G is grandmother to C, now aged eight. Mrs G’s daughter, Ms M, had difficulty looking after C because of mental health and drug problems. C was placed on a pre-birth Child Protection Plan. Mrs G was involved with C’s care from when C was very young.
  2. In April 2016 Ms M was arrested following an incident where C was present. The police made a referral to Children’s Services. The social worker who received the report, SW1, telephoned Ms M about her concerns for C. The record of the call notes SW1 told Ms M the Council would have a meeting with the police to decide what to do, but “for now we would wish that [C] is left in the care of her grandmother.” Ms M agreed to contact Mrs G.
  3. The record shows that after further discussion between Ms M and Mrs G, Mrs G said she could not care for C at the moment. The Council’s safety plan was that C should stay with her mother that night on condition that Ms M would not take her out.
  4. The Council says “negotiations were put in place for [C] the following day to be cared for by her grandmother” and that Mrs G “agreed to care for [C]”. Ms M agreed to the arrangement as well.
  5. Mrs G says SW1 telephoned her and asked her to take care of C. She says she was told that if she and Ms M did not agree, C would be “accommodated elsewhere”. The Council’s written record of a call from SW1 to Mrs G on this day does not refer to Mrs G being asked to care for C. It says SW1 called Mrs G to confirm C was with her.
  6. Shortly afterwards the Council held a Strategy Meeting with the police. The meeting decided to:
    • start a child protection investigation
    • hold an Initial Child Protection Conference (CPC)
    • put in place a safety plan for C to remain with Mrs G.
  7. The following day SW1 telephoned Mrs G and confirmed that C had settled in well with her as she was used to staying with her. Mrs G asked about the possibility of financial support to help her care for C. SW1 said she would look into it.
  8. The Initial CPC took place in May 2016 and decided to place C on a Child Protection Plan (CP Plan) as she would be at risk of significant harm in her mother’s care. The safety plan agreed included that C should continue to live with her grandmother “where she has her basic needs met consistently and she is not exposed to her mother’s drug use”. The Conference decide to explore options for C’s permanent care.
  9. On 12 May 2016 Mrs G telephoned SW1 to discuss a conversation she had had with her Family Support Worker about financial support for looking after C. The Council’s record of the call says:

“[Mrs G] said that [the Family Support Worker] had told her that children’s services have a legal obligation to pay her…. I [SW1] said that I had spoken to [the Family Support Worker] about this and I had told her that we did ask [Mrs G] to take [C] in and therefore we would have an obligation to pay her. I said that I may not have said legally we have an obligation but as we asked, we as an organisation do have an obligation to fund her.”

  1. After this the Council started giving Mrs X weekly section 17 payments to help her care for C. During May 2016 Mrs G says she had difficulty contacting SW1. C then had a new social worker, SW2. In June Mrs G wrote to SW2 and her managers by email several times. She asked whether she would receive a fostering allowance, how much this would be, whether it would be backdated to April when C first came to live with her, and whether she would need a Disclosure and Barring Service check.
  2. Copies of the email correspondence Mrs G has provided show she had discussions with the Council about a viability assessment for temporary approval as a foster carer and about Ms M signing a section 20 agreement. The Council has not provided copies of records of these discussions.
  3. The Council told Mrs G that if she was approved as a temporary foster carer the allowance would start from the day she was approved. On 17 June 2016 in an email to the Council Mrs G questioned why it had not asked Ms M to sign a section 20 agreement at the start of the ‘placement’. She said there was no discussion about options for C. Rather the Council told her if she did not take her granddaughter the Council would place her in alternative accommodation. She therefore felt it would have been appropriate to complete the section 20 agreement then and carry out a viability assessment sooner.
  4. I have not seen a reply from the Council to Mrs G on this point. But on 27 June 2016 Mrs G wrote to the Council asking it to confirm her understanding of a conversation she had had with a practice manager in Children’s Social Care. She said her understanding was that the Council would pay her a full fostering allowance backdated to the start of C’s placement with her in April. The Council would deduct any section 17 payments it had already made.
  5. Ms M signed a section 20 agreement in early July 2016.
  6. Around the same time SW2 visited Mrs G at home to carry out a viability assessment to assess whether she was suitable to become a temporary foster carer for C. The social worker concluded that she did not feel Mrs G could provide a viable placement for C. Her report said she was concerned that:
    • Mrs G was contacting C’s school on a regular basis saying she was struggling to cope with C’s behaviour;
    • at times she felt Mrs G put the needs of her pet above those of her grandchild; and that
    • Mrs G had said she did not want to apply for a Special Guardianship Order as she would not want to care for C long term.
  7. Later in July a social worker visited C at home with Mrs G and noted that C seemed to be in good health and there were “no issues with her accommodation with [Mrs G]”.
  8. Mrs G wrote to the Council in July asking about the outcome of the viability assessment. In one of her emails she referred to a visit from a social worker and thanked him for saying she was “doing a great job with [C]”.
  9. In early August 2016 two practice managers had a meeting with Mrs G to tell her the outcome of the viability assessment. They gave her a copy of the assessment. They advised her she could apply for a Child Arrangements Order (CAO) if she wanted to keep C in her care. Mrs G applied for an Order as advised.
  10. Mrs G wrote to the Council disputing the information in the viability assessment. She said it was based on a brief visit and an informal chat from a social worker who had not attended previous meetings. She said most of the time C was present during the conversation. Mrs G also says SW2 did not tell her the purpose of the visit.
  11. Mrs G set out detailed comments on the assessment. She referred to her long professional experience working in education and with excluded children, saying she was not having difficulty coping with C’s behaviour. She had contacted C’s school with concerns about her behaviour but this was because she was asking for help and support with C’s special needs. She denied she put the needs of her pet above her grandchild’s. She denied that she had told the social worker she did not wish to care for C long term. She confirmed she did not wish to apply for a Special Guardianship Order but said this was because she was worried that taking on parental responsibility would damage the relationship with her daughter and between her daughter and C.
  12. Mrs G attended the Review CPC held in August 2016 and raised her objections to the viability assessment there. Mrs G also had a meeting with the Conference Chair before the Conference. The Chair reported that Mrs G felt SW2 had misinterpreted her wishes and confirmed that she did want to continue to look after C. Her concern was about caring for her permanently as she did not want to exclude the option of C returning to her mother in the future. The Chair had explained the legal options to her and Mrs G said it was the first time she had understood this properly.
  13. The Chair said that from reading the viability assessment report she did not see any safeguarding concerns for C being with Mrs G. The main concern was whether Mrs G was willing and able to care for C long term. From what she had heard from Mrs G, Mrs G felt willing and able to do so. She noted that there was no evidence in the report to support the conclusion that Mrs G put the needs of her grandchild second to those of her pet. She said the report was written on the basis of a conversation that may have been misunderstood and she had heard things today that were not reflected in the report. Aspects of it were ‘highly disputed’ by Mrs G. She also noted that SW2 had not spoken to Ms M as part of the assessment or to another friend Mrs G had suggested would be part of her support network.
  14. The Conference Chair decided that the Council should review the viability assessment or provide a welfare report as part of the CAO proceedings. In the meantime the Conference decided that C should remain on a CP Plan as her permanence plan was not clear and so she was still at risk of harm.
  15. A month later, in September 2016, Mrs G had a meeting with a Children’s Social Care manager, Officer A, who agreed that the Council would carry out another viability assessment with a new social worker, SW3.
  16. Over the next few months social workers continued to visit C at home and at school to monitor her welfare. The court process for Mrs G’s application for a CAO continued. However the viability assessment was not completed.
  17. In January 2017 after several cancelled appointments by SW3 and unannounced visits which were not convenient for Mrs G or clashed with other arrangements, Mrs G made a written complaint to the Council. She complained about the lack of progress with the viability assessment and lack of support to C. She also complained that the weekly section 17 payments had stopped.
  18. A Review CPC took place towards the end of January 2017. The social worker attending, SW4, said he believed C was doing well in Mrs G’s care and she was being kept safe. The Chair noted that C had been with Mrs G for nine months and there were no concerns about the care she was receiving. The record also notes that the court had granted an Interim CAO to Mrs G and had ordered the Council to complete a welfare report. The meeting decided C should remain on a CP Plan because, until there was a permanent plan for C, her mother could seek her return at any time and so she remained at risk.
  19. Mrs G had a meeting with Officer A in early February 2017 to discuss her complaint. Officer A then wrote to Mrs G to confirm what they discussed. She explained that the Council was now preparing the court welfare report and this would make the viability assessment redundant. She understood that the Council would be supporting her application for a CAO. She also said she would reinstate the weekly payments.
  20. The Council produced a welfare report for the court. This said Mrs G had demonstrated a commitment to C, an ability to meet her care needs, obtain support for her and provide her with the “stable and secure parenting that [C] requires”. The Council supported Mrs G’s application. It asked that if the court decided not to grant the Order it should make a Care Order in favour of the Council as C would be at risk of significant harm. In February 2017 the court granted the CAO to Mrs G.
  21. In September 2017 Mrs G made a complaint to the Council. She complained about lack of responses from social workers, the way the viability assessment was carried out and the conclusions reached, the lack of a further viability assessment, and delays in providing a report for the court. She said the Council had failed to follow proper procedures by leaving C in a placement without carrying out proper checks and had failed to pay her a proper allowance even though the placement was not voluntary.
  22. The Council responded to Mrs G’s complaint in November 2017. It upheld most of the complaint. The investigator found no evidence of any communication with Mrs G alerting her to the fact that a viability assessment would be needed or how she would be involved. There was no copy of the viability assessment on file and so there could be no findings on the quality of the assessment. The response said the Council’s policy was that once a positive viability assessment had been completed the Council would agree temporary foster carer status and be able to pay a fostering allowance to the carer. As the second viability assessment was never completed the Council could not decide to pay the fostering allowance.
  23. The complaint report recommended that:
    • within four weeks the Council should send a letter of apology to Mrs G for the faults identified;
    • senior managers should use the lessons of the complaint to review the practice on the case, identify areas for improvement and remind staff of best practice.
  24. When Mrs G complained to the Ombudsman she said the Council had failed to follow proper procedures because the placement was not voluntary. She said the Council should have carried out proper checks and carried out a viability assessment and obtained section 20 consent at the outset. In her view if the viability assessment had been carried out properly and at the right time it would have resulted in a positive assessment and a decision to pay her the fostering allowance from the start of the placement. She also said the Council had not sent her the apology or made up the shortfall in the payments as promised.

Council’s response

  1. In response to the Ombudsman’s enquiries the Council accepted it had not sent Mrs G the apology or the payment. It has now done so. It confirmed it had carried out the review of practice recommended. As a result it had appointed a court progression officer who would monitor all viability assessments providing quality assurance and consistency of practice. It would carry out a review of this work in three months’ time.

Analysis – was there fault causing injustice?

  1. The law, statutory guidance and Council policy is that an emergency placement with family or friends for a Looked after Child without any checks or an assessment is unlawful. If the Council places a Looked after Child, whether under a Care Order or a section 20 agreement, with a ‘connected person’ it must approve the carer as a local authority foster carer, seeking temporary approval if necessary. Once temporary approval is granted the Council should pay the carer the full fostering allowance.
  2. In this case C only became a Looked after Child in July 2016. At that point the Council carried out a viability assessment. This was then challenged, set aside and the second one never completed. The Council’s position is that as there was no positive viability assessment and therefore no approval as a foster carer, it had no duty to pay the fostering allowance.
  3. However the question for the Ombudsman is whether the Council was at fault in failing to follow the proper procedure and whether Mrs G missed out on an allowance as a result.
  4. In my view Council should have considered whether section 20 applied as soon as Ms M was arrested and the Council considered C was at risk in her care. I have not seen evidence that it did. If it had my view is this would have led to the conclusion that C needed to be accommodated. I have seen only brief records of discussions with Ms M and Mrs G. However Mrs G has consistently said it was the Council who asked her to take care of C and said if she did not, it would have to place the child elsewhere. This is supported by:
    • the case note of the discussion with the social worker referred to in paragraph 28 above where the social worker confirmed that the Council asked Mrs G to take C,
    • the case note of the social worker’s call to Ms M which is headed “I would wish [C] to be with MGM [maternal grandmother]”,
    • the fact that Mrs G said initially she could not take C at that point,
    • the Council’s reference to ‘negotiations’ with Mrs G and her ‘agreement’ to look after her granddaughter.
  5. C had no-one else to care for her at that point and the evidence shows the Council considered she would have been at risk of significant harm if returned to her mother. This is demonstrated by the fact that the Council immediately started child protection enquiries and placed her on a Child Protection Plan.
  6. In my view the evidence supports a conclusion that the Council ‘took a major role’ in making the care arrangements for C. It should therefore have obtained Ms M’s consent to accommodate C under section 20 at the outset. C would then have been a Looked after Child. If the Council had taken these steps in April 2016 it would have had to seek temporary approval and carry out the viability assessment and checks on Mrs G then rather than waiting until July.
  7. The assessment when it did take place did not support Mrs G’s approval. However in my view there is sufficient evidence to find on balance that a) the assessment was flawed and b) that if it had been carried out properly earlier it is likely Mrs G would have been approved as a family foster carer. In reaching this view I have taken account of:
    • the lack of evidence that Mrs G was aware that the assessment was being carried out so that she could explain matters fully to the social worker,
    • the Review CPC Chair’s view that in key areas the social worker had either misinterpreted what Mrs G was saying or had failed to support her conclusions with evidence,
    • the failure to consult all relevant people in the assessment,
    • the Council’s decision to carry out a further assessment, rather than relying on the one SW2 carried out,
    • the positive statements about Mrs G’s care of C in social workers’ reports to Child Protection meetings,
    • the positive assessment of Mrs G in the welfare report produced for court,
    • the Council’s support of her application for a CAO and the court’s decision to grant the Order.
  8. If the assessment had been carried out at the beginning of the placement I consider it likely it would have reached similar conclusions to those in the court welfare report. Mrs G would then have been approved as a family foster carer. This would have resulted in a decision to pay her foster carer’s allowance rather than section 17 payments.
  9. I find that the Council was at fault in:
    • failing to properly consider the question of section 20 accommodation from the outset,
    • delaying seeking temporary foster carer approval, and
    • carrying out a flawed viability assessment.

Mrs G has missed out on the fostering allowance as a result of these faults.

  1. The Council was also at fault in delaying completing the second viability assessment to the point where it was no longer feasible to do so. This led to further frustration and anxiety for Mrs G.
  2. I also find the Council failed to respond to Mrs G’s complaint properly. It did not send her the apology or the missing payment until after she had complained to the Ombudsman.

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Agreed action

  1. The Council has apologised for the failings found previously and explained the improvements it has made.
  2. It has also now accepted that it should have treated C as a Looked after Child as it was instrumental in placing her with Mrs G and would have had to find an alternative placement if Mrs G was not available. In addition, to remedy the injustice to Mrs G the Council has agreed to take the following action within one month of the final decision on this complaint:
    • apologise for the further faults found,
    • pay Mrs G a sum equivalent to the fostering allowance it would have paid from the beginning of the placement to when she obtained the CAO, after deducting amounts already paid through section 17 payments, and
    • pay her £100 to recognise her unnecessary time and trouble in pursuing her complaint.
  3. If it is not already part of the procedural review being undertaken I also recommended that within three months the Council should tell the Ombudsman what steps it will take to ensure it properly considers and records decisions on accommodating children under section 20 in emergency situations. The Council has agreed to this recommendation.

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Final decision

  1. I have found fault by the Council causing an injustice to Mrs G. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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