Wiltshire Council (18 007 032)

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

Decision : Upheld

Decision date : 15 Oct 2019

The Ombudsman's final decision:

Summary: Mr and Mrs C complained that the Council failed to provide support for a child who was in their care. The Ombudsman finds fault by the Council, causing injustice to Mr and Mrs C. To remedy this, the Council has agreed to apologise, make a financial payment to Mr and Mrs C and review its practices.

The complaint

  1. Mr and Mrs C complain that the Council failed to provide support (including financial support) for a child (H) who was temporarily in their care. The Council refused support on the basis that Mr and Mrs C provided care under a private fostering arrangement.

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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)
  3. 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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How I considered this complaint

  1. I have read the complaint submitted by Mr and Mrs C and I have considered the Council’s comments and the supported documents it provided.
  2. I provided Mr and Mrs C and the Council with a copy of my draft decsion and invited their comments. I considered all the comments I received.

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What I found

  1. A child in need is defined under the Children Act 1989 as a child who is unlikely to achieve or maintain a reasonable level of health or development, or whose health and development is likely to be significant or further impaired, without the provision of services; or a child who is disabled.
  2. Councils can provide a range of services including financial support to children it has assessed as being ‘in need’.

Council’s duty to provide accommodation to a child in need

  1. Section 20(1) of the Children Act 1989 deals with the provision of accommodation for children. Every local authority shall provide accommodation for any child in need (CIN) within their area who appears to them to require accommodation as a result of:
  1. there being no person who has parental responsibility for him;
  2. his being lost or having been abandoned; or
  3. the person who has been caring from him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
  1. Reference to a child who is “looked after” by a local authority is a reference to a child who is in their care or provided with accommodation by the authority in the exercise of their social services functions.
  2. It is the duty of a local authority looking after any child to safeguard and promote his welfare.
  3. Section 22c says the local authority must make arrangements for the looked after child to live with their parent or a person who has parental responsibility for the child. Where this is not suitable, they should place children in the most appropriate placement looking first to a relative, friend or other persons connected with the child and who is also a local authority foster parent. If this is not possible or suitable, then they should look for a local authority foster parent or placement in a childrens’ home.
  4. Where a council fulfils its legal duty to accommodate a child by placing it with relatives of friends who were not previously foster carers, those carers become “family and friends foster carers”.
  5. If a council makes arrangements for a child to be accommodated by someone other than its parents, the council must provide financial support to maintain the child in the form of fostering allowances as well as practical support to the “looked after child”.
  6. 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)

Friends and Family Carers

  1. Parents may make private arrangements directly with friends or relatives to care for their children. In such cases the child is not considered to be a ‘looked after child’ and there is no right to financial support from any council, but, if the child is a ‘child in need’ a council can provide support under Section 17 of the Children Act 1989.
  2. Sometimes it is not clear whether a local authority has “placed” a child with the family, so that the child is, in law, a “looked after child” or whether it was a private family arrangement. In London Borough of Southwark [2007] the court set out the following guidance on this point:

a. If a local authority 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.

b. Private fostering arrangements are usually made directly between individuals.

c. If a local authority wants to sidestep its duty to accommodate a child by arranging private foster care, the local authority must be explicit with those involved, including giving them clear information about financial arrangements, otherwise, the courts and others are likely to conclude that the local authority is making “a placement”. Only on the receipt of such information can a potential foster carer give informed consent to accept the child on a private fostering arrangement.

Background

  1. Below is a chronology of key events. It is not meant to include everything that happened.
  2. H lived with her mother, stepfather and two younger half siblings. The Council had been involved with the family and were aware that H’s relationship with her mother and stepfather had broken down. There had been two section 47 enquiries in relation to physical harm to H whilst she was living at home.
  3. On 25 October 2017, H was reported missing and her mother and stepfather were not willing to have her live back with them. H stayed with her friend for one night only. She then contacted another friend, Mrs C (who is the adult sister of H’s friend) and asked if she could stay with her and her husband. Mrs C agreed and H went to stay with Mr and Mrs C on 26 October 2017. The Council says a duty social worker spoke to Mrs C “who stated she was happy for [H] to stay as long as needed…and she would contact [H’s mother] and arrange to collect her belongings”. The Council allocated the case to a social worker (SW1) and opened a private fostering assessment.
  4. On 27 October 2017 the Council carried out initial police checks on Mr and Mrs C. The records state the checks were an “interim measure”. The Council called Mrs C and told her there were no concerns arising from the checks and asked her if she was happy for H to remain in her care “in the short term”. Mrs C agreed and said she had tried to contact H’s mother in order to get some of her belongings.
  5. On 30 October 2017, SW1 spoke to H’s, Child and Adolescent Mental Health’ worker. She was concerned that H’s mother and stepfather had refused to have H home. The record of the telephone conversation states that “parents non-attendance at the CIN meetings indicate their disengagement with the CIN plan….[H] remains at [Mrs C’s] but this is short term”. SW1 spoke to her manager about the case. The manager’s record states that Mrs C had agreed to keep H long term but was not sure if H’s mother had agreed to this. It was agreed that SW1 would keep trying to contact H’s mother to obtain her views. The record states “Friends and Family assessment will be completed at day 28 and [SW1] will notify fostering of this arrangement. Social care did not place [H] although the police were involved so we need to check this out further with fostering”.
  6. The next day SW1 carried out a home visit and spoke to Mrs C and H. Mrs C said she wished to care for H long term. During the visit SW1 telephoned H’s mother and asked her if H could live with Mr and Mrs C in the long term. H’s mother said no. Because H’s mother could not provide any alternative carers for H, SW1 advised her to speak to her husband and get back to her. SW1’s record of the visit states, “I left the home but called [Mrs C] 10 minutes later to inform her of the assessment process to care for H”
  7. On 1 November 2017 SW1 telephoned H’s mother and asked her why she thought [Mrs C] could not meet H’s needs. H’s mother said that she felt Mr and Mrs C were too young to care for H and would not be able to meet her needs. She said that H should be placed in foster care. SW1 said that Mr and Mrs C had lots of life experience and were already meeting H’s needs. SW1 told H’s mother that foster care was a last resort and the Council would carry out an assessment with Mr and Mrs C before considering this. SW1 told H’s mother “the only way to prevent this happening is for [H] to return to [your] care”. H’s mother refused to take her back. SW1 said she then explained to H’s mother that [Mrs C] would be assessed under the friends and family rule and H’s mother would provide financial support for H. The Council’s record of the conversation states that H’s mother said “okay” several times as this was explained to her.
  8. Later the same day H’s mother sent a text to SW1. She said that she had spoken to her husband and they both agreed that “[Mrs C’s] was not the right place for [H]”.
  9. The next day SW1 and her manager met with H’s mother and stepfather to discuss arrangements for H’s care. The record of the meeting is as follows:

“Options discussed with parents. We are not considering FC [foster care] for H or placement under Reg 24. The reason for this decsion were explained to parents”.

“Private fostering process was explained. [SW1] reported that [Mrs C] is happy for this to be a long-term arrangement and agreeing for assessment to take place. Mum expressed her worries that [Mrs C] may not be able to manage some of [H’s] behaviours and there may be a falling out when [H] is told she can’t do something. We recognised that this is early days for [Mrs C]”.

“PR and process of delating authority was explained/discussed. Parents agreed that they are willing for PF assessment to go ahead. Parents understand that they will retain responsibility for [H]. Parent’s financial responsibility will need to be discussed further”.

  1. On 9 November 2017 private fostering social worker (SW2) spoke to Mrs C about private fostering. A home visit was arranged for 15 November 2017. A private fostering assessment was completed however there is no evidence of what information Mr and Mrs C were provided with about financial arrangements and implications associated with private fostering.
  2. On 21 November 2017 the Council’s records show that it gave Mrs C £100 towards the cost of H’s care needs for the last four weeks. SW1 told Mrs C to make future financial arrangements with H’s parents.
  3. On 12 December 2017 Mr C spoke to the Council and followed up the conversation with an email. He provided a copy of a spreadsheet that outlined the costs of caring for H. He said that he could not “sustain or take this punishment any longer” and wanted support. The next day, Mrs C also contacted the Council. She also explained that financial issues were jeopardising H’s placement with them. She said they had started to receive £44 per week (child benefit) from H’s mum. On 15 December 2017 Mrs C told the Council that she cannot continue to care for H without further financial support. On 21 December 2018 Mrs C told the Council that she felt “very let down” and had been struggling financially since taking H into their home. On the same day the Council made a payment of £75 private fostering allowance to Mrs C.
  4. On 5 January 2018 Mrs C contacted the Council again about ongoing financial problems. She also said that there was meant to be a CIN meeting in December, but she has not heard anything. A CIN meeting was held on 11 January 2018. At the meeting Mrs C said that they never wanted to be private foster carer but regulated local authority foster carers. She said she had been given misleading information. She said they did not want to go ahead with the private fostering arrangement. She said there had been a lack of financial support from H’s parents and the Council.
  5. The Council’s case records stated the following:

“Both mum and stepdad have agreed to work with me with regards to [H] returning home, although don’t see it happening quickly” (20 January 2018).

“[H] continues to live with [Mr and Mrs C] under private fostering arrangements. [H’s mother] has now agreed a substantial additional payment for her upkeep. PF assessment is ongoing. DBS check was delayed as [Mr C] had wanted confirmation of additional financial support before he agreed to this”. (08 March 2018).

“[H’s mother] pays £320.00 every 4 weeks…to PF carers bank account. She also sends £64.00 (child benefit) every 4 weeks” (09 April 2018)

  1. On 21 June 2018 the Council held a CIN review meeting and decided to close the CIN plan for H. On 2 July 2018 Mrs C telephoned the Council and said she was struggling to cope with H’s behaviour. She explained she wanted to do the best for H, but it was impacting her, and her family and she didn’t think they could cope for much longer. On 3 July 2018 Mrs C spoke to SW3 and told her that they could not continue with the placement. In a text message to SW3 Mrs C said “I don’t think we’re going to continue to with caring for [H] we’ve had quite few issues. Personally we are not trained or received any support or guidance on how to manage this…”. On 4 July 2018 SW3 told Mrs C that Mrs C needed to speak to H’s mother about caring for H.
  2. On 6 July 2018 and 9 July 2018, Mrs C left a message for SW3 to call her back. She wanted an update on care arrangements for H. On 15 July 2018, Mrs C spoke to the Council and reported H as missing. She repeated that she did not feel skilled enough to care for H. Mrs contacted the Council again the next day and said the police had returned H back to them. She said for the past three weeks she had been telling the Council that she was struggling and could not care for H any longer. She said that H was taking drugs and her behaviours were impacting her two younger children. She told the Council she would not be able to continue caring for H during the school summer holidays.
  3. On 18 July 2018 Mrs C spoke to SW2. She said they can no longer care for H, due to her “worsening/risky behaviour and not being able to keep her safe”. SW2 asked Mrs C if they “had considered giving H’s mum and SW3 a date from when the PF arrangement must end so that everyone had a date to work with”. On the same day SW2 emailed SW3 requesting an update and a plan for alternative accommodation for H.
  4. On 28 July 2018 H went missing and was admitted to hospital. Mrs C said she was “heavily under the influence of drugs”. The Council’s record states that Mrs C was very upset and stressed and shared that “they simply cannot carry on like this”. She said she was not getting any sleep and had to be at work early in the mornings. Her younger children were witnessing H’s behaviour and saw her being arrested. She said her own children were at risk. Mrs C said that H’s mother was not willing to have H home due to the impact on her siblings, yet Mrs C was expected to accept that it was “ok for her children”. She said that SW3 was difficult to get hold of and did not return her calls.
  5. On 30 July 2018, Mrs C spoke to a duty social worker. She said that H was returned to them over the weekend and “was extremely challenging”. However, H back in hospital having taken an overdose. Mrs C made it clear that H could not return back to their home. The Council’s records state that it removed H from Mr and Mrs C’s care on 1 August 2018.

My assessment

  1. Mr and Mrs C believe that H was being placed with them under a fostering arrangement with the local authority and that they should therefore have been paid a fostering allowance and received support from the Council.
  2. The Council disagrees. It says H was living with Mr and Mrs C under a private arrangement. It says Mr and Mrs C spoke to H’s mother and agreed to have H live with them and their two younger children.
  3. Having considered the evidence and further comments from the Council, I find this was a private arrangement, initially, as the Council did not make the placement. In October 2017, H contacted Mrs C and asked if she could stay with her. Mrs C agreed. The Council’s record keeping is poor, and I have seen no evidence of what information was provided to Mr and Mrs C and whether the Council gave them a full explanation to ensure their proper understanding of the arrangement.
  4. I find that from January 2018 to August 2018 it was no longer a private arrangement for the following reasons:
      1. The Council had concerns about H living with her mother and stepfather. There had been two section 47 enquiries in relation to physical harm to H whilst living at home.
      2. At the CIN meeting held in January 2018, Mrs C made it clear that she did not want to continue with the private fostering arrangement. The Council was already aware that they were struggling to cope financially, and that the placement could break down at any point. However, to avoid making H a looked after child, I found the Council asked Mr and Mrs C to look after H until arrangements could be made for her to return home. At this point the Council was taking responsibility for maintaining the placement.
      3. I accept Mr and Mrs C’s evidence that they felt pressurized, emotionally and morally to continue to care for H, as the Council had made it clear that her mother and stepfather did not want her to return home. It is clear from the Council’s records that looking after H put an enormous strain on Mr and Mrs C. To their credit they continued caring for H. But this had a significant impact on them and their own children

Summary of faults

  1. The Council:
      1. In January 2018 the Council failed to recognise that it was taking responsibility for the placement, and it was no longer a private fostering arrangement.
      2. Failed to recognise that H should have been a ‘looked after child’ from January 2018. Because of this, the Council failed to support Mr and Mrs C and pay them a fostering allowance as H’s family and friends foster carers.

Injustice to Mr and Mrs C

  1. The Council’s fault in failing to treat H as a ‘looked after child’ from January 2018, has injustice for Mr and Mrs C. They should have been treated as family and friends foster carers and paid an allowance at the family and friends foster carer’s rate.

Agreed action

  1. The Council has agreed to my recommendations and will within four weeks of my final decision:
      1. Apologise to Mr and Mrs C for its errors;
      2. Pay Mr and Mrs C £5,077. The Council has calculated this as the foster carers allowance to which Mr and Mrs C would have been entitled to from January 2017 to August 2017, plus interest (based on the average retail price index for the period) less any benefits and payments they have received which they would not have been entitled to had they been paid the allowance.
  2. To prevent injustice to other members of the public, the Council will within two months of my final decision:
      1. Review its practices to ensure carers are provided with a full explanation of a child’s needs and the implications of private fostering so that they are able to make an informed decision. The Council’s records should evidence this;
      2. Review its practices to consider whether it has a duty under s.20 to accommodate a child, when a private arrangement is at risk of breaking down.

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Final decision

  1. For the reasons set out above there was fault causing injustice to Mr and Mrs C. The Council has agreed to my recommendations and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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