London Borough of Lewisham (18 010 370)

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

Decision : Upheld

Decision date : 20 Sep 2019

The Ombudsman's final decision:

Summary: Ms X complains the Council has refused to provide financial support since asking her to care for a child, Y in February 2014. Ms X also complains the Council failed to respond to her complaint within the statutory timescales. The Council’s failure to treat Y as a Looked after Child and provide appropriate support since placing him with Ms X amounts to fault. As does the failure to respond to Ms X’s complaint within the statutory timescales. These faults have caused Ms X an injustice.

The complaint

  1. The complainant, whom I shall refer to as Ms X complains the Council has refused to provide financial support since asking her to care for a child, Y in February 2014. Mrs X asserts the Council placed Y with her and is responsible for providing financial support.
  2. Mrs X also complains the Council failed to respond to her complaint within the statutory timescales.

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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. As part of the investigation, I have:
    • considered the complaint and the documents provided by Ms X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with Ms X; and
    • sent a statement setting out my draft decision to Ms X and the Council and invited their comments.
  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. The law 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. (Children Act 1989, section 17)

Councils' duty to provide accommodation to a child in need

  1. The law says 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. (Children Act 1989, section 20)
  2. The law 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. (Children Act 1989, section 22C)
  3. If the 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 a fostering allowance as well as practical support to the 'looked after child'.

Case law on family and friends care arrangements – the Southwark judgment

  1. 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. Other unrelated people can take on the care of a child under a private fostering arrangement made with the parent. Under these two arrangements there is no right to any financial support from any 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. Councils must assess private fostering arrangements with unrelated people if the care of the child is likely to be for more than 28 days.
  2. 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 [2007] EWCA 182)

Special Guardians

  1. A Special Guardianship Order is a private Court order for children who cannot live with their birth family. It gives the Special Guardian parental responsibility for the child without removing entirely the parental responsibility of the birth parent. Children cared for by a Special Guardianship Order are not ‘looked after children’ under the Children Act.
  2. The local authority where the special guardian lives is responsible for undertaking an assessment of need and provision of any special guardianship support services in response to that assessment. The only exception to this is where a child was looked after before the special guardianship order was made.

What happened here

  1. Ms X is not related to Y, but Y has lived with Ms X for extended periods since his birth due to his mother, Ms Z’s health conditions and personal circumstances. Y has also lived with other friends of Ms Z for a lengthy period.
  2. The Council placed Y on a child protection plan in late 2013. At this time, Y was living with his mother and spending some weekends with Ms X. In January 2014 Ms X contacted the Council to advise that Ms Z had asked her not to send Y back after the weekend, and to look after him indefinitely. The Council’s records show a social worker tried to contact Ms Z to confirm the care arrangements for Y but was unable to speak to her. Ms Z then left the social worker a message stating she had not asked Ms X to look after Y indefinitely.
  3. The records also detail the Council’s concerns about Ms Z’s ability to care for Y and note that in the event of an immediate need to safeguard Y he should be placed with Ms X.
  4. Ms Z went to prison in February 2014. Ms X states she found out from a friend and notified the social worker who asked her to collect Y from school. Ms X states the social worker also agreed to reimburse Ms X the after-school club fee. The Council’s records state a social worker called Ms X who

“Said that she had not been contacted by [Ms Z] about [Y’s] arrangements. [Ms Z] is in court today so she was unable to get hold of her.”

  1. The social worker appears to have spoken with Ms Z on the day she went to prison, but there is no record of this conversation in the case notes.
  2. Ms X states she received a call from a correctional officer at the prison as Ms Z wanted to know whether Y was with her. Ms X told the officer he was, but she did not speak with Ms Z. Ms X considers it was a logical decision for the Council to place Y in her care as she had cared for his older half-siblings and had previously cared for Y. Ms X states she did not at this point agree to look after Y full time.
  3. A few days later the social worker contacted Ms X again who confirmed Ms Z had been imprisoned for 18 weeks. The notes state Ms X will consider obtaining a residence order.
  4. The Council’s records show that in March 2014, seeking advice, the social worker states:

“Three weeks ago, I contacted [Ms X] to check if she was having [Y] at the weekend. She reported [Ms Z] had not made any arrangement. I contacted [Ms Z] and she told me that she was at [the Magistrates Court]. … I asked her who would care for [Y]. She reported [Ms X] will look after [Y] while she is in prison. I explained to [Ms Z] that [Ms X] was not aware of the arrangement and as I did not have PR I cannot facilitate the care arrangement… I asked [Ms X] to ring [Ms Z] to discuss [Y]’s welfare. [Ms X] did as I requested and [Ms Z] asked her to look after [Y]”.

  1. The social worker’s conversations with Ms Z and Ms X referred to above are not recorded in the Council’s case notes.
  2. In March 2014 the Council carried out a parenting assessment of Ms X’s ability to care for Y. This assessment concluded Ms X had demonstrated a good capacity to meet Y’s care needs and recommended he stay with Ms X long-term. The Council also supported Ms X in applying for a residence order and agreed to pay the cost.
  3. A social worker visited Ms Z in prison and noted Ms Z did not agree with Y remaining in Ms X’s care. The Council’s notes state it anticipated that on Ms Z’s release from prison she would attempt to remove Y from Ms X’s care. The Council had advised Ms Z it would not support this.
  4. The court granted Ms X an interim Child Arrangement Order and Parental Responsibility Order in June 2014. Ms X contacted the Council to ask for financial support for Y and to reimburse the after- school fee she had paid when she collected Y in February 2014. There is no record the Council responded to Ms X’s requests.
  5. The Court granted a final Child Arrangement Order in September 2014. The Council determined Y no longer needed to be subject to a child protection plan in November 2014 and closed its file.
  6. Ms X also applied for a Special Guardianship Order. As Ms X lives in a neighbouring borough, the court ordered the local authority where Ms X lives to prepare a special guardianship report. Ms X was appointed Y’s Special Guardian in February 2015.
  7. When Ms X asked her own local authority for financial support for Y, it suggested she pursue this with the Council. It stated the Council had not transferred Y’s case to them, and its only responsibility had been to undertake an assessment for the court.
  8. Ms X complained to the Council in October 2015. She asserted that as the Council had placed Y with her and asked her to care for him it had a duty to provide financial support. The Council did not respond until June 2017. It apologised for the significant delay in responding. The Council noted that Ms X had played a significant role in Y’s life throughout his childhood. As Ms Z was struggling to manage in December 2013, she agreed that Y should stay with Ms X. Y returned to his mother in early January 2014 but went to stay with Ms X again following an incident in mid- January 2014. When Ms Z went to prison in February 2014, Y remained in Ms X’s full-time care.
  9. The Council also noted that Ms X had since obtained a Special Guardianship order. As Ms X is resident in another borough the Council concluded her home local authority was responsible for the Special Guardianship support plan.
  10. Ms X was not satisfied by the Council’s response and asked for her complaint to be considered further. The Investigating Officer concluded there was no evidence the Council had placed Y with Ms X or that they had coerced or pressed Ms X into caring for him. The officer also noted Ms Z had not opposed Ms X in obtaining any of the court orders.
  11. The investigating officer acknowledged that had Ms X not stepped in to care for Y when Ms Z went to prison, the Council would have had a duty to accommodate him. The officer considered that rather than making arrangements for Y to be fostered, the Council was simply facilitating a private arrangement between Ms Z and Ms X.
  12. As the investigating officer did not consider Y had ever been looked after by the Council, they suggested Ms X should approach her home local authority to review the Special Guardian support plan.
  13. Ms X remained unhappy and asked for her complaint to be considered by the review panel. The panel was not persuaded that the Council had placed Y with Ms X. It considered it was clear that Y was not a looked after child. The panel recommended Ms X approach her home authority for support. It also recommended the Council make a payment to Ms X to acknowledge the time and trouble she had been put to and distress she had suffered because of the Council’s delays.
  14. As Ms X maintains the Council asked her to care for Y in February 2014, she has asked the Ombudsman to investigate her complaint.

Analysis

  1. The Council’s records of its discussions with both Ms X and Ms Z regarding Y’s care when Ms Z went to prison in February 2014 are poor. The Council asserts there was a private arrangement between Ms Z and Ms X for Ms X to care for Y, but there is no evidence of this. The records suggest a social worker spoke to Ms Z at the Magistrates Court following her sentencing, but there are no contemporaneous records of what was discussed, or what arrangements were agreed.
  2. There is no dispute that Y had regularly stayed with Ms X prior to Ms Z’s imprisonment in February 2014. But that is not in itself evidence of a private arrangement between Ms Z and Ms X for Y’s full-time care following her imprisonment. Y was living with Ms Z, not Ms X at the time. There is nothing to suggest Ms X knew in advance that Ms Z was due to appear in court or that she would be imprisoned. Nor is there any evidence she had agreed with Ms Z to care for Y should Ms Z be imprisoned. Ms X states she was told by a friend that Ms Z was in court and that she was unable to speak to Ms Z directly that day.
  3. There appears to have been an assumption that Ms X would /could look after Y following Ms Z’s imprisonment, but I am not persuaded this amounts to a private arrangement between Ms X and Ms Z.
  4. Y was subject to a child protection plan and the Council’s records confirm that should there be an immediate safeguarding need, he should be placed with Ms X. Based on the documentation available I consider the Council arranged for Y to stay with Ms X following Ms Z’s imprisonment in February 2014 and was acting under its duties to provide Y with accommodation. The Council was aware Ms Z had not made any arrangements for Y’s care before to going to prison. The Council appears to have arranged, and agreed to pay, for Y to go to after school club that day and then asked Ms X to collect Y from school and take him to her home.
  5. On the basis the Council arranged for Ms X to care for Y, it should have provided financial support in the form of a fostering allowance and practical support. Once Ms X became Y’s Special Guardian, the Council should have provided Special Guardianship support.
  6. The failure to treat Y as a Looked after child and provide appropriate support amounts to fault.
  7. The Council’s failure to respond to Ms X’s complaint in a timely manner also amounts to fault. The Council’s complaints procedure states it will try to resolve complaints within 10 working days, or up to 20 working days if the complaint is complex. A delay of almost 20 months is clearly unacceptable.

Agreed action

  1. The Council has agreed to:
    • Apologise and pay Ms X £300 in recognition of the distress she has experienced and the time and trouble she has been put to in dealing with this matter.
    • Calculate and pay any allowances Ms X would have been entitled to as a family and friends foster carer from February 2014 to February 2015;
    • Calculate and pay Ms X any Special Guardianship allowances she is eligible for, backdated to February 2015.
  2. The Council should take this action within one month of the final decision on this complaint.

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Final decision

  1. The Council’s failure to treat Y as a Looked after child and provide appropriate support since placing him with Ms X amounts to fault. As does the failure to respond to Ms X's complaint within the statutory timescales. These faults have caused Ms X an injustice.

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Investigator's decision on behalf of the Ombudsman

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