Decision : Upheld
Decision date : 11 Feb 2019
The Ombudsman's final decision:
Summary: Mr X complains the Council has not remedied failings identified through the statutory children’s complaints procedure, causing him financial loss and stress. The Ombudsman finds the Council at fault. We recommend the Council takes action; pays Mr X the amount he should have received as a family and friends foster carer and; pays Mr X £900 for stress, time and trouble.
- Mr X complains the Council has failed to act on recommendations made during a stage 3 review held under the statutory children’s complaints procedure. And, he does not feel the Council has offered a meaningful payment in recognition of what he has been through and specific financial losses. Mr X says he has been put to time, trouble, stress and financial loss because of the Council’s failings.
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)
- 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)
How I considered this complaint
- I spoke to Mr X and I reviewed documents provided by Mr X and the Council. I gave Mr X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.
What I found
- The Children Act 1989 (the “Act”) sets out the duties of councils towards children.
- Section 17(1) of the Act says councils have a duty to safeguard and promote the welfare of children who are in need and, so far as is consistent with that duty, to promote the upbringing of such children by their families. Councils can fulfil this role by providing services, which may include accommodation, support in kind and, if necessary, cash payments.
Friends and family foster carers
- Section 20 of the Act covers providing accommodation for children in need. This includes when the person who has been caring for them cannot, or will not, provide suitable accommodation or care. In these cases, the child will become ‘looked after’ under the Act and will be owed the same duties as other looked after children.
- Councils can arrange accommodation under section 20 with relatives or friends, if parents provide consent. If this happens, it is deemed to be a foster placement under the Act. The foster carer will be entitled to receive a weekly fostering allowance. They are not also entitled to child benefit or child tax credits.
- Other practical support from the council would include regular visits by a social worker (both the child and the foster carer have their own social worker), a placement plan, looked after child reviews overseen by an Independent Reviewing Officer, supervised contact, and perhaps respite. Depending on how long the child remains as a looked after child, the child may be entitled to leaving care support when they reach 18.
Private family arrangements
- Children may also go to live with relatives through an informal arrangement. The council may be involved in facilitating this without making a foster placement. In these cases, the child will not be ‘looked after’ and their relatives will not be foster carers. The child’s parents remain responsible for financial support for the child. However, the child may still be a child in need eligible for support under section 17.
- The Department for Education sets national minimum standards each year for the fostering allowance rate it would like councils to set as a minimum. Councils then set their own rates. The law says family and friends foster carers must receive the same fostering allowance rate as professional unrelated foster carers.
- The minimum fostering allowance for 2016/17 was £159 per week. From 6 April 2017 this increased to £161 per week.
- The Council pays all foster carers a fee of £85 plus the minimum fostering allowance, currently £161 per week. The fee payable increases depending on the experience and qualifications of the foster carer.
- In December 2016 Mr X’s grandson came to live with him. The Council told him this was a private family arrangement. Mr X says the Council offered him £100 per week in cash on an informal basis but provided no other financial support. He did not have a spare room so his grandson, Y, had to sleep on a makeshift bed on the floor of Mr X’s bedroom. Mr X says the Council did not give him information about housing or benefits.
- Mr X felt the Council failed to provide adequate financial and practical support. He says, because of this, Y returned to the Council’s care in June 2017. Mr X’s relationship with Y then broke down.
- Mr X complained to the Council. The Council upheld most of the complaints at stage 1, though it maintained Mr X was caring for Y in a private family arrangement.
- Mr X escalated his complaint to stage 2.
- I have summarised the key findings of the stage 2 report:
- The Investigating Officer does not regard the placement as strictly being a family arrangement because Children’s Services were involved in the negotiation of the placement and had contacted Mr X to ask him if he was in a position to have Y living with him.
- After placement, there was no clear plan for Y and no assessment of Y’s or Mr X’s needs.
- It was six months before the Council provided Mr X with the much needed letters of support for benefits and housing.
- The Council should have assessed Mr X as a Connected Person.
- A social worker failed to ensure Y was returned to Mr X on one occasion and there was a delay in a social worker visit.
“The Head of Service confirmed that after speaking with the Fostering Team it was known that the connected persons allowance would have been £85.00 per week. The Head of Service said Mr X cared for his grandson for a total of 28 weeks and if assessed as a Connected Person would have received a total of £2380.00. The Head of Service said instead Mr X was paid from Section 17 funding at £100.00 per week totalling £2600.00 plus the cost of a new washing machine at a cost of £229.00.”
- The stage 2 investigator did not say if he was satisfied the Council had paid Mr X the amount he would have received as a family and friends foster carer. The investigator recommended the Council provide Mr X with a written apology for the failings identified. Also, that the Council consider whether potential carers meet the criteria for assessment, in future.
- The Council accepted the findings and recommendations made at stage 2 and produced an Action Plan. It also offered Mr X £300 for time, trouble and the upset caused due to its failings.
- Mr X asked for a stage 3 review.
- During the meeting, the Panel noted Mr X did not want to discuss individual complaints, rather he was looking for a resolution and practical way forward.
- I have summarised the key findings at stage 3:
- There was a pattern of poor practice in the Council. There was a lack of urgency in helping Mr X and Y find appropriate accommodation. There was a lack of robust management oversight. Y was placed in an illegal, unregulated placement.
- The Panel was concerned the Council had not yet actioned all the recommendations in the Action Plan. And, that no learning from the complaint had been shared with staff.
- There was a lack of information in the stage 2 chronology which meant the Panel could not contextualise the complaint in light of historical case history.
- The Panel was also concerned the Council had shared Y’s information with Mr X without Y’s consent.
- Include the offer to arrange mediation between Mr X and Y within the Action Plan and ensure the Action Plan is finalised and actioned by the end of August 2018.
- Ensure its staff are aware of and operate within the legal framework in relation to child placements.
- In deciding whether a person has sufficient interest in a child’s welfare to justify a consideration of their own complaint, check the young person is happy for a complaint to be made.
- Where a young person has capacity to decide if their personal data should be shared, the Council should obtain their consent where possible.
- The Council has not completed all the recommendations made at stage 3.
- He queries whether the Council has paid him the right amount in lieu of a fostering allowance.
- He does not feel the Council offered him a meaningful payment in consideration of everything he has been through.
- He paid £130 for Y’s school uniform. And, despite him asking a social worker to remove his bank details from Y’s phone, Y took £160 from his bank account.
- The Council provided an apology to Mr X in its stage 2 response letter of April 2018.
- The Council offered £300 to Mr X in May 2018 but Mr X declined this.
- Senior management are to consider and address working practices due to the concerns identified at stage 2. The Council says this is completed.
- The Council has set out the identified practice issues and how it will address these. The Council reports these as completed by September 2018.
- It will arrange mediation with Mr X and Y. However, the Council notes Y needs time to settle into his placement and so it will not arrange mediation at this point. There is no evidence the Council told Mr X this.
- Mr X would have received £85 per week; plus £159 per week from 5 December 2016 to 31 March 2017; then £161 per week from 1 April 2017 to 26 June 2017 as a connected foster carer. However, the Council did not assess Mr X as a connected foster carer. The care of his grandson remained a private family arrangement supported by Section 17 funding.
- It offered to help Mr X find a larger property to rent in the private sector but he wanted Council housing. It accepts it delayed sending a letter in support of his housing application.
- It offered Mr X £300 for time, trouble and upset caused and later offered £900. It is still happy to offer Mr X £900.
- Mr X gave his bank details to Y and therefore this is a private matter between them.
- It offered Mr X £50 towards uniform which he refused. However, if Mr X can provide evidence of purchase it will reimburse him the costs incurred.
- The Council has provided an Action Plan which reports most recommendations have been actioned. I note the Plan does not refer to the recommendations concerning consent, but this was addressed separately in a letter to Mr X. However, I note the Council did not contact Mr X to arrange mediation or explain to him why it will not. Mr X has been caused frustration as a result.
- The stage 2 investigation found the Council failed to assess Mr X as a connected person. Had it done so, Mr X would have been recognised as a family and friends foster carer and received a fostering allowance. I find the Council accepted this failing but it has not remedied the financial losses Mr X suffered as a result.
- Mr X would have received a fostering allowance of £6854 (£85 x 28 weeks plus £159 x 17 weeks, £161 x 11 weeks). However, he only received £2600 by way of section 17 payments. I find Mr X should be returned to the position he would have been in, but for the Council’s fault.
- Mr X struggled with limited financial support for seven months while Y was in his care. He was also put to considerable time, trouble and stress in pursuing his complaint. The stage 2 investigation found the Council delayed in supporting Mr X in securing accommodation and applying for benefits. Although I cannot say what would have happened if the Council had acted sooner, I find Mr X suffered further stress due to the lack of support from the Council. I note the Council offers £900 for time, trouble and upset. I find this amount is appropriate.
- The Council was supporting Mr X under section 17 and it could have considered a payment for school clothing under this section. However, this is a discretionary payment. If the Council had paid Mr X the full fostering allowance as it should have done, it may not have offered a further payment for clothing. I therefore find no fault causing injustice in this regard.
- Mr X says a social worker assured him that Y had removed his bank details from his phone. However, Mr X says Y subsequently took funds from his bank account without authorisation. It is not within my jurisdiction to consider criminal allegations. Even if the Council were at fault in providing an assurance to Mr X, I cannot say it is responsible for any financial loss suffered. That would be a matter for the police.
- To remedy the injustice set out at paragraphs 31, 33 and 34 above, I recommend the Council carry out the following actions within one month of the date of my decision:
- Provide Mr X with a written explanation as to why mediation has not yet been arranged and say when it intends to ask Y for his consent to mediation;
- Pay Mr X £6854 less any child benefit, child tax credits or section 17 payments that he received;
- Pay Mr X £900 for stress, time and trouble.
- I find the Council failed to provide an appropriate remedy for faults identified during the statutory complaints procedure. The Council has accepted my recommendations and therefore I have completed my investigation.
Investigator's decision on behalf of the Ombudsman