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.
- 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.
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 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 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.
- 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). I refer to this as ‘section 17 support’.
- 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)
- 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.
- 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)
- 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.
- 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.
- 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  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.
- “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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
“[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.”
- 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.
- 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.
- 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.
- 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.
- Ms M signed a section 20 agreement in early July 2016.
- 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.
- 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.
- 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?
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The Council has apologised for the failings found previously and explained the improvements it has made.
- 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.
- 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.
Investigator's decision on behalf of the Ombudsman