Summary: Mr X complained the Council failed to properly support him after he started to look after his granddaughter, Z, in 2016. He says it has not properly managed or risk assessed Z’s contact with her birth father, Mr D. The Council failed to properly consider paying Mr X appropriate financial support until it awarded him Special Guardianship Allowance in 2018. It has agreed to make him a backdated payment equivalent to his Special Guardianship Allowance and apologise. This is appropriate to remedy the injustice caused by this fault. Z’s contact plan was agreed by Court and does not allow her contact with Mr D. The Council has offered to reassess the appropriateness of Z having contact with Mr D if circumstances change. There is no fault in this decision.

The complaint

1. Mr X complained the Council has failed to properly support him since he started to look after his granddaughter Z in May 2016. He says it has failed to properly assess and consider how to meet Z’s needs or his needs as her carer. He says it has failed to help him by properly managing and risk assessing contact with Z’s birth father.

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The Ombudsman’s role and powers

2. 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. In this case I have exercised my discretion to investigate back until May 2016 when Mr X took on responsibility for Z because the circumstances meant he could not have been reasonably expected to have complained to us earlier. (Local Government Act 1974, sections 26B and 34D, as amended)
3. 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)
4. 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.
5. 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

6. I spoke to Mr X about his complaint.
7. I asked the Council questions and considered its response.
8. I considered the Children Act 1989 and Statutory Guidance for local authorities on family and friends care. I considered relevant caselaw including London Borough of Southwark v D [2007] EWCA Civ 182.
9. I considered the Ombudsman’s guidance on remedies.
10. I gave the Council and Mr X the opportunity to comment on my draft decision.

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What I found

Background

11. Councils must make enquiries where they consider a child is suffering or likely to suffer significant harm.
12. 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;
• the child being lost or having being 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.

Private family fostering arrangements

13. A private, or informal, family arrangement happens when a close relative agrees with the parent to take on the care of the child.
14. This private arrangement could be confirmed in court in a private law order called a Child Arrangements Order. Alternatively, it can be a more informal arrangement.
15. A Child Arrangement Order sets out with whom the child should live, spend time or other contact arrangements and gives the holder of the order parental responsibility for the child. Under this arrangement there is no right to any financial support from the council.
16. However, councils can decide to pay an allowance to a carer with a child arrangement order. This is a contribution towards the child’s maintenance called a child arrangement order allowance.
17. This Council’s policy is that service provision will be subject to an assessment of the child as a child in need. If the child is assessed as being in need of support, this can be provided under section 17 of the Children Act.
18. Statutory guidance says councils should signpost to local and other sources of information and advice. They should explain circumstances in which a child may become accommodated by the council or in which care proceedings may be instigated, and how and by whom such decisions are made. Informal family and friends carers need to feel confident that if they ask for support, their views will be listened to and the child’s needs will be appropriately assessed.
19. This Council’s policy sets out the importance of providing appropriate support to family members fostering a child. It says this should happen whether or not the arrangement is informal.

Relevant case law

20. The courts have considered the question of whether arrangements for a child to live with a relative or friend are truly a private arrangement. In a key case, the Court said where a council has taken a major role in making arrangements for the child to be cared for by the friend or relative, it is likely to have been acting under its duties, under the Children Act, to provide the child with accommodation.
21. If the council is just facilitating a private law arrangement, the Court said councils must make clear to all parties that those holding parental responsibility for the child would continue to be responsible for the financial arrangements to care for the child (London Borough of Southwark v D [2007] EWCA Civ 182).
22. The Court considered a private fostering arrangement might allow a council, (otherwise likely to have had to provide accommodation for a child), to ‘side-step’ that duty. The Court said for the council to be able to side-step its duty, it must have given the carer enough information to allow them to give their ‘informed consent’ to accepting a child under a private fostering arrangement. To do this the carer must have known, because of what the council told them, that the child’s parent would continue to be financially responsible. Without that informed consent, the council could not side-step its duty.

Special guardianship

23. Some family and friends carers decide to go to court (sometimes with the help of a council) to gain a Special Guardianship Order. This is more secure and leads to more support from councils than a Child Arrangement Order. A Special Guardian can ask the council for support including asking for financial help through a Special Guardianship Allowance. The council must review this at least annually and it can be removed.

What happened

24. In 2016 Z’s mother became unable to continue to look after Z. Z’s father, Mr D, had been arrested and was in prison. Z’s mother had mental health problems and couldn’t continue looking after her children.
25. Z was handed over into Mr X (her grandfather)’s care by the police. Mr X says the Council asked him if he could continue to look after Z.
26. Mr X says the Council later told him he was looking after Z under a private family arrangement. He said he had various meetings with a supervising social worker about more permanent arrangements to look after Z. He said the Council did not properly support him during this time.
27. Mr X raised concerns with the Council about supervision of meetings between Z and Mr D in prison. He complained to the Council in April 2017. Council officers met Mr X to discuss his concerns and the need to consider longer term arrangements for Z’s care. After discussion with officers Mr X withdrew his complaint.
28. The Council and Mr X discussed contact arrangements between Z and Mr D in March 2017.
29. In March 2018 the Council submitted a support plan to accompany Mr X’s application to Court to become Z’s Special Guardian. This said Z should have no contact with her birth parents. It said it would give Mr X support and advice if he decided this situation should change. If this happened it said it would assess Mr D for suitability of contact.
30. The Court appointed Mr X as Z’s Special Guardian. It agreed a contact plan setting out contact only with Z’s paternal grandmother, and not with either of Z’s birth parents. Later in 2018 the Council agreed to pay Special Guardianship Allowance for Mr X for the next two years.
31. During 2018 Mr X complained to the Council again. He said Z had missed out on support because of its inactions. He had repeatedly asked the Council to assess her situation and for financial help but it had ignored him. The Council replied to say it did not have to accept this complaint because it was about events more than one year ago. It said it could consider a complaint about more recent events.
32. Mr X complained to the Ombudsman about what had happened. He said he had been unable to complain earlier because of his efforts in court to secure D’s future and that of another child he was looking after. The Council had not financially supported him since 2016 when he started looking after Z until the Special Guardianship Allowance started in 2018. It had given him no help with contact arrangements.
33. The Council replied to my enquiries stating it thought Z had gone to live with Mr X under a private family arrangement. However it said that to remedy injustice by it not giving him regular financial support as Z’s carer, it would pay him a backdated sum equivalent to his Special Guardianship Allowance (£75.19 per week). This would be backdated to cover the time from when Mr X started looking after Z until he started to get Special Guardianship Allowance. It said it would do this, minus any money it had already paid Mr X during this period.

My findings

34. The family situation in 2016 was that Z’s father was in police custody and Z’s mother was unwell. Had Mr X not stepped in to look after his granddaughter, it is likely the Council would have had to take a much more active role in assessing the circumstances, risk and options. Had it done so, on the balance of probabilities, it would have recognised a duty to look after Z.
35. To allow it to side-step that duty, the Council should have given Mr X clear advice enabling him to give informed consent to accept Z under a private fostering arrangement. It did not do so, and so Mr X did not give informed consent.
36. This fault caused Mr X injustice by missing out on regular financial support between May 2016 and the award of the Special Guardianship Allowance in 2018. The Council’s offer to backdate payment equivalent to that allowance, less any other payments, is appropriate to remedy this injustice.
37. The Council’s support plan and Special Guardianship assessment recommended there be no direct contact between Z and Mr D. This decision was endorsed by the Court. The Ombudsman cannot investigate matters that have been to court.
38. The Council has said that if this situation has changed and contact is now needed then it would first have to carry out an assessment of Mr D to see if contact is suitable. The Council has confirmed that Mr X can ask it to carry out an assessment of Mr D. This offer remains open to Mr X. There is no fault in the Council’s consideration of this matter.

Agreed action

39. Within one month of my final decision the Council will:
• Apologise to Mr X and to Z for not properly considering Mr X’s request for financial support before awarding Special Guardianship allowance.
• Make a backdated payment to Mr X, equivalent to the weekly amount it has awarded him as Z’s Special Guardian since 2016, less any other sums paid to him prior to award of Special Guardianship Allowance in June 2018.

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Final decision

40. I have completed my investigation. I have found fault causing injustice in the Council’s actions. The remedy it has suggested during my investigation is appropriate to remedy this injustice.

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Investigator's decision on behalf of the Ombudsman