Decision : Upheld
Decision date : 21 Feb 2019
The Ombudsman's final decision:
Summary: Mr and Mrs B complain the Council placed their two grandchildren with them but did not provide them with appropriate financial support. They were left without financial support for the boys’ care for a long period. The Ombudsman finds the Council was at fault because it failed to provide any clarity for Mr and Mrs B about what it considered their role was in terms of the boys’ care, and how the cost of that care should be met.
- The complainants, Mr and Mrs B, complain the Council placed their two grandchildren with them but failed to pay them appropriate allowances as foster carers. As a result, Mr and Mrs B were left without the significant financial support to which they were entitled.
What I have investigated
- I have investigated the Council’s actions in this matter from 2 October 2017 when the children were placed with Mr and Mrs B, to 1 February 2018 when, during private legal proceedings, the Court took the view that it might be appropriate for a care or supervision order to be made in respect of the children and ordered the Council to prepare a report.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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)
- 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.
- 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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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)
The law on children in need
- The Children Act 1989, section 17, states 'children in need' are children who:
- need councils to provide them with services so they can achieve or maintain a reasonable standard of health or development; or
- need councils to provide them with services to prevent them suffering significant or further harm to health or development; or
- are disabled.
- Councils can provide a range of services including financial support to children it has assessed as being ‘in need’.
- The Children Act 1989, section 20, states councils have a duty to provide accommodation to any child in need in their area who requires it as a result of:
- there being no person who has parental responsibility for the child;
- his being lost or having been abandoned; or
- the person who has been caring for the child being prevented (whether or not permanently, and for whatever reason) from providing the child with suitable accommodation or care.
- Where accommodation is provided under section 20, the arrangement is a voluntary one. A local authority may not provide accommodation under this section for any child if any person who has parental responsibility for that child and is willing and able to provide accommodation for them (or arrange for accommodation to be provided for them) objects to that arrangement. Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.
- The Children Act 1989, section 22, requires councils to firstly consider a placement with parents, then family and friends who are willing and able to act as foster carers before considering unrelated foster carers.
- If the council makes arrangements for a child to be accommodated by someone other than its parents, it must provide financial support to maintain the child in the form of a fostering allowance as well as practical support to the 'looked after child'.
- The Children Act 1989, section 37, sets out the powers of the court in certain family proceedings. When, during any private law proceedings under the Children Act 1989 a question arises about the welfare of the child, the court may direct the local authority to undertake an investigation into the child’s circumstances and report its findings to the Court. This is known as a section 37 report.
Case law on family and friends care arrangements – the Southwark judgment
- A private family arrangement, sometimes called an informal family arrangement, occurs when a close relative has agreed with the parent to take on the care of their child. Under such an arrangement there is no right to any financial support from the council but if the child is a 'child in need' a council could provide support under section 17 of the Children Act 1989. Councils do not supervise private family arrangements.
- The courts have looked at whether an arrangement for a child to live with a relative or friend was truly a private arrangement. The Court said where a council takes a major role in making arrangements for the child to be fostered it is likely to conclude it is acting under its duties to provide the child with accommodation. If the council is simply facilitating a private arrangement the Court said councils must make it clear to all parties that those holding parental responsibility for the child were responsible for the financial arrangements to care for the child. (London Borough of Southwark v D  EWCA 182)
- In the Southwark judgment Lady Justice Smith said:
“If an authority wishes to play some role in making a private arrangement, it must make the nature of the arrangement plain to those involved. If the authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that s/he must look to the parents or person with parental responsibility for financial support. The authority must explain that any financial assistance from public funds would be entirely a matter for the discretion of the local authority for the area in which the foster parent is living. Only on receipt of such information could the foster parent give informed consent to acceptance of the child under a private fostering agreement. If such matters are left unclear, there is a danger that the foster parent (and subsequently the court) will conclude that the local authority was acting under its statutory powers and duties and that the arrangement was not a private one at all.”
The Ombudsman’s previous reports
- In 2013 the Ombudsman issued a focus report about council services to family and friends carers, which highlighted cases of such carers receiving unfair treatment. A second focus report in 2018 which principally looked at complaints about special guardians also highlighted issues with councils not properly considering whether it should provide more financial support. The Ombudsman has also published numerous individual reports highlighting issues in respect of councils’ duties towards family and friends foster carers.
How I considered this complaint
- I considered all the information provided by Mr and Mrs B about their complaint. I made written enquiries of the Council and took account of all evidence and comments received. I provided Mr and Mrs B and the Council with a draft of this decision, and considered all comments received in response.
What I found
- Mr and Mrs B are maternal grandparents to two young boys (‘the boys’). The boys first became known to the children’s social care department at the Council in 2011. Both of their parents have suffered mental ill health and professional concerns about the care of the boys were raised at various times. In March 2017, the boys’ parents had separated and their father, Mr Y, became their main carer, having been assessed by the social care team as the more able parent.
- At a Family Group Conference in February 2016 a Family Plan was agreed. The Council says as part of the Plan Mr and Mrs B had agreed to look after the boys in an emergency. The record of the meeting provided by the Council simply states Mr and Mrs B might be able to look after the boys “on Tuesday or Saturday in an emergency”.
- In July 2017, the family was referred to Family Solutions, a multi-agency early intervention and support service for families set up by the Council.
The boys are placed with Mr and Mrs B
- On Monday 2 October 2017, Mr Y contacted the Council with concerns about his mental health and fears he could not keep the boys safe. He was asked if family could help. Family Solutions contacted Mrs B by telephone. The Council’s records say she agreed to have the boys and arranged compassionate leave from work. She collected the boys from school. The records also say the Council was unsure how long the arrangement would be for. Mr Y was happy with this arrangement and Mrs B then contacted him and arranged to collect some belongings.
- The following day Mrs B contacted Family Solutions to ask why the boys had been referred to the Council’s social care department. The Council’s records note she said she was happy to look after the boys until 10 October (a week later) when Family Solutions would be discussing the case with social care.
- The notes from the meeting on 10 October 2017 record that when Mr Y had reported a decline in his mental health, with the support of a family worker the boys had gone to stay with their maternal grandmother. It was noted that this was not a long term option. The boys were deemed to be Children in Need.
- On 24 October, Mr Y contacted the Council’s social care department and stated he felt better and wanted his sons returned to him from 29 October. The Council asked him to reconsider. It told him an allocated worker had met with the boys and the assessment process was nearly underway. The Council’s records say Mr Y was disappointed but agreed to wait.
- On 21 November 2017, there was a strategy discussion at which it was noted Mrs B was struggling to care for the boys as she was working. There were also concerns raised about supervision of the boys when they had contact with their mother. The record of a Child and Family Assessment on 30 November 2017 noted concerns about Mrs B’s ability to safeguard the boys from possible harm when in their mother’s care or presence. It noted the parenting of the boys needed a significant level of support.
- On 6 December 2017, an initial child protection conference took place. The boys were placed on a child protection plan. It was noted that Mrs B, Mr Y and professionals raised concerns that the current situation with Mrs B caring for the boys was untenable for reasons which included the logistics of her other commitments. The records say the Council’s social care team was to explore what was required by Mrs B to stabilise the current arrangement of her caring for her grandchildren. This action was to be completed by 5 March 2018. Another action point was for the social care team to explore long term solutions for the boys to ensure their needs were met.
- An internal case discussion on 15 December noted that the social care team needed to complete assessments of the boys’ parents and grandparents before considering issuing care proceedings. A further such discussion on 9 February 2018 referred to a query about whether the care arrangement was a family arrangement or an arrangement under S20 of the Children Act 1989. A referral was to be made to panel for discussion, and assessments of Mr and Mrs B were to continue.
- In the meantime, Mr Y had begun private proceedings relating to the boys' contact with their mother. The Court ordered the Council to prepare a report for the court under section 37 of the Children Act 1989. The order, issued on 1 February 2018, noted that the court’s view was that it might be appropriate for a care or supervision order to be made with respect to the boys.
Mr and Mrs B request financial help and complain to the Council
- On 17 October 2017 Mrs B lodged a formal complaint with the Council. She said she had been contacted and asked to care for the boys at the beginning of the month, and that when she subsequently asked for financial support, she was advised by the social worker that she should ask Mr Y to contribute. The Council issued its initial response to the complaint on 29 November 2017. It said the social worker had understood it to be family arrangement and if this had changed then in order to consider providing financial support under a fostering arrangement it would have to consider the parents’ mental capacity to agree to the arrangements. It said a legal planning meeting would need to be held. No legal planning meeting took place however.
- Mr and Mrs B were dissatisfied with this response and on 30 November requested escalation of their complaint. Writing again on 15 December they reiterated their request for financial support and explained their ability to financially support the placement would be further compromised after Mr B’s retirement on 18 December.
- By 13 January 2018 they had received no response and so wrote again, adding to their complaint that the Council was not adhering to the complaints procedure. The Council acknowledged this letter and apologised for delay. On 31 January, the Council advised Mr and Mrs B it would like to discuss a one-off payment under S17 of the Children Act 1989. Mr and Mrs B wrote several more times to the Council, making it clear they expected allowances to be paid at the basic fostering rate and expected payments to be backdated to when the boys had been placed with them.
- On 23 February 2018, the Council said it had not placed the boys with Mr and Mrs B, that this was a family arrangement, and that a resource panel had agreed that they should be receive S17 payments of £50 per week per child backdated to October 2017. These payments were made in March 2018. Mr and Mrs B were dissatisfied and requested escalation of their complaint. The Council advised in response that it could not progress the complaint under the corporate procedure at that time as the case was subject to court proceedings.
- The Council also advised that the statutory children’s complaints procedure could not apply. It said this was because the work of the Family Solutions service which had been involved when the boys went to live with Mr and Mrs B was by consent of the family, and an officer working in that service could not place a child. When the complaint was made to us, a further opportunity was given to the Council to address the complaint through the statutory procedure. The Council declined. When I made my enquiries, the Council had a further opportunity to confirm that the statutory process was still available to Mr and Mrs B, but it did not do so.
- The Council takes the view that the Family Plan agreed in February 2016 set out that Mr and Mrs B were happy to support the boys in an emergency, and that when Mr Y sought help with the boys due to his mental health crisis in October 2017 the Family Plan was triggered. But the Family Plan only referred to Mr and Mrs B being willing to help “on Tuesday or Saturday in an emergency”. In any event, Mrs B was very clear with the Council when she rang the day after she was asked to collect the boys from school and look after them that she was happy to do so for a week. There is no evidence that Mr and Mrs B were given adequate information about how long the arrangement would likely be for or about the availability of financial assistance from public funds. The Council should have ensured Mr and Mrs B had no uncertainty about the nature of the arrangements.
- The Council considers the boys became Children in Need on 10 October 2017. Mrs B takes the view that they were Children in Need when their father became ill and could no longer look after them, and that the Council sought to discharge its statutory duty by arranging for her to take them in. She feels if she had not done so the Council would have taken the boys into care. The Council says this is not the case and that it would have supported the boys staying with their father. I do not consider the Council’s records support this assertion. In particular, when Mr Y felt well again and asked for his sons to be returned to him, he was dissuaded from this by the Council. And, if this was a personal family arrangement as the Council has claimed, Mr Y might have been expected to simply approach Mr and Mrs B about returning the boys to him.
- The Council’s records from 10 October 2017 onwards include acknowledgements that Mr and Mrs B caring for the boys was not a long-term option; that the situation was untenable; and that the boys had challenging behaviour and additional needs requiring support in parenting. Specifically, notes from the meeting on 10 October 2017 say: “With the support of family worker, children went to stay with maternal grandmother, however this is not a long term option”. The Council says that it would not have been appropriate at this stage to have made a judgment that the placement was required long term, and I agree. Nevertheless, the notes appear to record such judgment, and, importantly, Mrs B had told the Council at the outset she would have the boys for a week, until 10 October. Notes from the initial child protection conference on 6 December include reference to professionals having “raised concerns that the current situation with [Mrs B] caring for the children is untenable”, as well as stating “[The boys] are exhibiting challenging behaviours and have additional needs as a result of their lived experiences; [Mr & Mrs B] have not parented male children or those children with additional needs / challenging behaviours…”. The Council notes that the record referring to the situation being untenable goes on to cite the reasons for this and to an agreed action for social care to explore what was required by Mrs B to stabilise the current family arrangement of her caring for her grandchildren, an action to be completed by 5 March 2018.
- The Council made no payment at all to Mr and Mrs B for the care of the boys until March 2018, after repeated requests for financial help had been made. That was fault.
- Responding to our enquiries on the complaint the Council said that in the absence of any clearly recorded agreement between Mr and Mrs B and the social work team in respect of the boys’ living arrangements, it would consider whether it owed a S20 duty. The failure to consider the S20 duty sooner was fault.
- The Council has acknowledged that its communication with Mr and Mrs B was insufficient, incomplete, and less than satisfactory in terms of confirming their role and responsibility in terms of the boys’ care. That was fault.
- The Council was also at fault in advising Mr and Mrs B the statutory complaints procedure could not apply. The complaint is about statutory functions under the Children Act 1989. 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 Investigating Officer 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. The Council also argued that it could not investigate placement of the boys as that had been done by an officer working in Family Solutions who could not place a child, and that argument was flawed because a complaint is often about something happening which should not have happened. The Council accepts that it gave incorrect information in this regard. The Council met with Mr and Mrs B after conclusion of the legal proceedings, but there is no evidence that it gave advice at that meeting, or following it, about progressing the complaint to the second stage of the statutory complaints procedure. The Council had a further opportunity to bring the complaint back into the statutory process when it received my enquiry letter.
The current position
- The boys remain living with Mr and Mrs B at present. Following a meeting with the Council on 7 January 2019, Mr and Mrs B confirmed that the Council had granted them approval as temporary foster carers and had agreed to pay them the full fostering allowance of £173.04 a week for each child, in addition to a kinship fostering fee of £50 a week for each child. The Council agreed that these payments would be backdated to 2 October 2017. By 16 January 2018 the Council had paid these backdated amounts as agreed.
Injustice to Mr and Mrs B
- The failings identified by this investigation have meant that Mr and Mrs B were not paid appropriate financial allowances to support their care of the boys from the outset, and the lack of support caused distress. This was compounded by the Council’s failure to deal with the resulting complaint properly and in a timely way. Mr and Mrs B were put to significant time and trouble trying to pursue these matters with the Council.
- As noted above, during the course of this investigation the Council did agree to pay relevant allowances and it has backdated these appropriately. This remedies the injustice to Mr and Mrs B to a significant degree. However, the sums paid do not take account of the distress and inconvenience caused to Mr and Mrs B while they were waiting for those payments, or the time and trouble taken in seeking to have the matter put right. I therefore recommended that within four weeks of the date of the decision on this complaint the Council:
- Issues Mr and Mrs B with a formal written apology; and
- Pays them £250.
- In terms of service improvements, the Council has confirmed the procedures in relation to family and friends care and special guardianship have been recently reviewed, revised and implemented. I recommended that within three months of the date of the decision on this complaint, the Council provides evidence of these service improvements, to demonstrate how these will address issues identified by this complaint.
- The Council has agreed to my recommendations.
- The Council has already agreed to ensure that training is available to staff to to ensure they are able to assist family members in making informed decisions about placement and about financial support which may be available, when circumstances such as those highlighted by this complaint arise.
- I have completed my investigation on the basis set out above.
Parts of the complaint that I did not investigate
- I did not investigate the actions of the Council after 1 February 2018. This is because once the Court, being of the view that a care or supervision order might be appropriate, had ordered the Council to prepare its report, it was open to the Court to decide where the children should reside and under what terms.
Investigator's decision on behalf of the Ombudsman