Decision : Upheld
Decision date : 20 Dec 2018
The Ombudsman's final decision:
Summary: Ms X complains the Council did not support her financially or otherwise for over a year when she became a carer for family members, until she obtained a Special Guardianship Order for the children. She also says the Council has failed to provide her with support since then. The Council was at fault as it did not provide Ms X with sufficient information to allow her to make an informed decision about entering a private arrangement. There is no evidence of fault in the support the Council provided to Ms X and the children since then. The Council has agreed to apologise to Ms X and pay her as if she had been a foster carer for the time she cared for the children before the court granted a Special Guardianship Order. It has also agreed to pay her £500 for the time and trouble bringing this complaint and review its procedures for dealing with similar cases in the future.
- The complainant, whom I will call Ms X, complains she was provided with no financial support from the Council when she became a carer for family members. She says the Council did not support her financially or otherwise for 13 months between when the children came to live with her, and when the Court granted her a Special Guardianship Order.
- She also says the Council has continued to fail to provide her with adequate support since then.
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)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). I have decided there are good reasons to investigate this complaint. Ms X says she initially accepted the Council’s position that she was not entitled to financial support. She says she has since been in contact with others through Special Guardians support groups and now believes it was wrong.
- 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 considered Ms X’s complaint and discussed it with her over the telephone.
- I made enquiries of the Council and considered the information it sent me.
- I considered the Children Act 1989 and the government guidance document Family and Friends Care: Statutory Guidance for Local Authorities
- Ms X and the Council had the opportunity to comment on the draft decision and I considered their comments before making my final decision.
- 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
- The Children Act 1989 says children “in need” includes children who need councils to provide them with services to either maintain a reasonable standard of health and development, or to prevent them suffering further harm to their health and development.
- The Act sets out a council’s duty to safeguard and promote the welfare of children within their area who are in need. The council has a duty to assess a child and offer services appropriate to the child’s needs.
- A child can become a child in need in several different ways. One of these ways is when a child comes off a child protection plan. This may occur if the child protection conference considers the child to no longer be at risk of significant harm, but still needing some help.
- Councils have a duty to provide accommodation to any child in need in their area who needs it as a result of:
- there being no person who has parental responsibility for the child;
- the child being lost or abandoned;
- 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.
- whether the child is a child in need;
- whether the child appears to require accommodation;
- whether anyone with parental responsibility objects to council intervention.
A child who is assessed as requiring accommodation is called a “looked after” child. Accommodation can be provided through a care order granted by the Court or by agreement with the parents under section 20 of the Children Act 1989.
- When a council decides a child requires accommodation under the Children Act, the council should first consider whether it can safely place the child with family or friends who are suitable and willing to act as foster carers. If the council arranges to place a looked after child in this way, it has a duty to provide the carer with practical support and financial support in the form of a fostering allowance.
- Alternatively, the family may come to a private arrangement (sometimes called an informal family care arrangement) about who will care for the child. This can be informal and by mutual agreement between parents and close family members. When family members make the arrangement privately, the council can “side step” its duty to accommodate the child. A council may help facilitate the arrangement but the child is not considered to be a “looked after” child. Councils can still decide to provide some support in these circumstances if they consider the child to be in need, but the council has no statutory duty to provide financial support.
- Sometimes there is disagreement between councils and family members about whether the council has placed a child with the family (and so is in law a ‘looked after child’) or whether it was a private family arrangement.
- The judgement in London Borough of Southwark v D  provided clarification on whether an arrangement for children with family and friends should be considered a foster placement. The judge said that:
- If a council plays a major role in making arrangements for the child, the most likely conclusion is that it is exercising its powers and duties to accommodate the child.
- Informal family care arrangements are usually made direct between individuals.
- If a council intends to merely assist in arranging informal family care rather than accommodating a child itself, the council must be explicit with those involved, including giving 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 council is making the placement itself. Only on receipt of such information can a potential foster carer give informed consent to accept the child on an informal family care arrangement.
(Ombudsman report Family Values: council services to family and friends who care for others children. 2013)
The Council’s Children’s Services procedure manual
- The Council has its own guidance manual which outlines its policies and procedures to ensure it fulfils its duties under the Children Act.
- The manual says if a child is no longer able to live with their parents, the local authority has a duty to look after them.
- Before making a decision to look after a child, the Council must consider whether other extended family members might want to care for a child to stop the need for them to come into care.
- A Family Group Conference is a meeting held between professionals and family members to help the family plan and make decisions to achieve the best possible outcome for children. The Council offers this type of conference to families when it has serious concerns about the wellbeing of a child in a current placement, and an alternative placement is being considered.
Special Guardianship Orders
- A Special Guardianship Order (SGO) is a court order which gives the carer some, but not all parental responsibility for a child. It provides more certainty and stability for the child, and gives the carer responsibility for day to day decision making. Children cared for under an SGO are not looked after children under the Children Act.
- Someone who wants to be a Special Guardian must tell the council. The council will then prepare a report for the court about the potential Special Guardian.
- A Special Guardian can ask the council for support, including financial support. This may include a special guardianship allowance. This allowance is means tested and the Council should review any support annually.
- Ms X lives with her partner, Mr Y.
- Her father, Mr Z, lived with his wife Mrs A, with whom he had several other children. Most of these children lived in the family home. All the children were subject to child protection plans under the category of neglect.
- In 2014, Mrs A moved out of the family home. She said she was unable to care for the children. Mr Z became the main carer for these children.
- The Council was concerned how Mr Z would care for the children and meet their needs. It called a family group conference. The family group conference was attended by wider family members including Ms X.
- The aim of the conference was to confirm who would be the main carer for the children and who could provide extra support to ensure the children were safeguarded and their needs were being met. The conference minutes recorded the children’s main carers as Mr Z and Mrs A. Mrs A agreed to continue to provide some care for the children despite no longer living in the family home. The wider family offered some additional support. Ms X said she might be able to provide some respite care, and would want to be considered as an alternative carer, should the children need to be cared for away from their parents.
- Mr Z then became unwell. His health started to worsen and he needed treatment for his condition. The Council was concerned how this would impact on his ability to care for the children.
- The Council arranged a second family group conference. The aim of this conference was to plan how the family would support Mr Z to care for the children, during and after his medical treatment. It also wanted the family to discuss and form a back-up support plan, to decide who would put themselves forward as full-time carers for the children, should this be needed in the future.
- The conference discussed what support Mr Z currently needed. The family devised a weekly timetable with several family members providing daily support. The plan supported Mr Z to care for the children and carry out daily household tasks. Ms X agreed to provide overnight support on Fridays, and to provide some support for the children at the weekends.
- The conference discussed who could provide long term care for the children. Ms X offered to look after some of the younger children, should the need arise.
- The conference minutes recorded possible outcomes for the children if there was no support plan. This included the possibility the children would need to be looked after and accommodated by the Council, and possible adoption. However, the minutes do not record any subsequent discussion about alternative options to a private family arrangement.
- The Council social worker completed a home visit to Mr Z. The care record says the purpose of this visit was to “firm up” arrangements regarding shared care for the youngest children and explore if Mr Z would be willing for Ms X to apply for a care order. Council records say Mr Z agreed with the social worker that the youngest children should go and live with Ms X full time. It recorded a discussion between the social worker and Mr Z about finances and said Mr Z would discuss this with Ms X.
- The social worker then visited Ms X at her home the same day to discuss care of the youngest children. The care record says “Ms X and Mr Y are keen to have the children full time when required”.
- In early 2015, Mr Z rang the Council. He told the Council the youngest children were now living with Ms X. He said he was providing financial support for these children. Ms X says she never received any financial support from her father for the children’s care.
- The Council held a child protection (CP) review conference in early 2015. The conference decided that as the youngest children were now living with Ms X, the risk of significant harm had reduced. The child protection plans were ended and the children were stepped down to Child in Need level.
- The CP conference minutes record several home visits from late 2014 and early 2015. A visit in late 2014 is recorded. The minutes say it included a frank discussion between the social worker and Mr Z. It was agreed that due to Mr Z’s poor health, it would be best if the youngest children went to live with Ms X permanently.
- The CP conference minutes recorded that it discussed whether the Council could give Ms X and Mr Y financial help. In its plan, the Council agreed to support an early application to panel for financial help to apply for a child arrangement order and to obtain advice from a solicitor. It said when Ms X had this Order, this would give her some parental responsibility for the children.
- After the children were stepped down to Child in Need level in early 2015, the children continued to have Child in Need plans and support from the Council until mid 2017.
- The Council proposed to withdraw free school transport for one of the children, now they had moved to live with Ms X. It said the child was no longer eligible as she lived nearer the school. The children’s social worker contacted the school transport department and discussed the case, which led to the reinstatement of school transport for the child.
- Ms X rang the Council. She told the Council that she was struggling financially to meet the needs of the children. The record says “I believe Ms X is now wanting an ongoing financial payment. This will not be agreed given that this was a family arrangement.”
- The social worker visited Ms X to tell her the Council would not fund her application for a child arrangement order or solicitor advice. It advised her to discuss instructing a solicitor privately with her father. Ms X said her father was too unwell to do this. He then died soon after.
- The Council agreed to pay £200 towards some new bunk beds for two of the children.
- Ms X wrote to the Council to say she wanted to apply for a Special Guardianship Order for the children. She requested the Council complete the special guardianship report for the court. The Council said she did not meet the criteria to apply for an SGO and it would not support the application.
- Ms X complained to the Council. She complained that:
- the Council did not fund the child arrangement order and advice from a solicitor, as agreed in the child protection review conference in early 2015;
- it did not support her request for an extension to her property;
- one of the children was about to lose their free school transport;
- social services were not willing to help and support them.
- The Council has had significant involvement with the children and the children were subject to child protection plans. In 2014, due to the children’s mother leaving the family home and Mr Z’s ill health, it arranged two family group conferences to discuss the children’s welfare and ongoing needs.
- The Council noted in the family group conference minutes that the children were at risk of being looked after and needing accommodation, if a support plan was not made. The Council was therefore involved and had oversight of the children’s care for a significant period of time. It carried out repeated home visits. It was on the verge of taking the children into care and it would have probably done so had there not been family members willing to step in.
- When Mr Z became too unwell to care for the children, the Council had already decided the children were in need and there was no one else with parental responsibility able to care for the children.
- The social worker visited Mr Z and then Ms X and Mr Y, to discuss the need for the children to go and live with Ms X and Mr Y full time. The records say Mr Z agreed with the social worker that this should happen and they agreed the date the move should take place.
- The Council says the children went to stay with Ms X and Mr Y under a private family arrangement. Case records instead show the Council played a major role in making arrangements for the children’s care.
- In doing so, there is no evidence the Council properly explained to Ms X and Mr Y that:
- It was only playing its role as facilitator of a private family arrangement, or the implications of this for Ms X and Mr Y;
- They would have to rely on Mr Z for any financial support;
- They had other options, including applying to be friends and family foster carers;
- There were significant financial, and other support implications for them of these actions and choices.
- Within one month of the final decision the Council has agreed to:
- apologise to Ms X for the failings identified;
- pay Ms X as if she had been a friends and family foster carer (less any state benefits provided to Ms X and the children) for the children from the time the children went to live with her until she was granted the Special Guardianship Order;
- pay Ms X £500 for the time and trouble and the frustration caused by the Council not resolving her complaint sooner, despite her complaining multiple times.
- all parties are aware of the nature of the arrangement and where financial support will come from, if it is involved in the arrangements for a child to be cared for by a private family arrangement;
- proper records are made of this explanation so it is not in dispute. This will allow the carer to make an informed decision about whether to accept a child as part of a private family arrangement.
- I have completed my investigation. I have found fault causing injustice, and the Council has agreed to my recommendations to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman