Northamptonshire County Council (18 011 884)

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

Decision : Upheld

Decision date : 18 Oct 2019

The Ombudsman's final decision:

Summary: Mrs X complained about the financial support provided by the Council to help her to care for her three grandchildren. The Ombudsman has found fault in the way the Council managed her allowances. To remedy the injustice caused, the Ombudsman recommended the Council should apologise, write off the overpayment made to Mrs X and carry out a new assessment. The Council has agreed with this recommendation.

The complaint

  1. Mrs X complains about the Council’s failure to properly manage the financial support she receives to help care for her three grandchildren. This has resulted in the Council asking her to repay an allowance that was made twice by mistake. She says the Council failed to review the allowance for a number of years which was received in good faith and spent on the welfare of the child. To repay this sum would cause significant financial hardship to her family.
  2. Mrs X also complains about the amount of financial support generally. She says it is insufficient to properly care for her family who have additional needs.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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)
  3. 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. I discussed the complaint with Mrs X’s representative and considered the written information she provided. I made written enquiries of the Council. I took account of all the information before reaching a draft decision on the complaint. This was sent to both parties for comment and those received have been taken into consideration.

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What I found

The law and policy

  1. A person may go to court to seek a Residence Order (now known as a Child Arrangement Order) under the Children Act 1989 for a child in their care. This Order decides where a child should live and with whom. Councils may provide financial support to someone with a Residence Order under section 17. The support is discretionary, and any allowances paid can be means-tested.
  2. In 2010 the Government issued statutory guidance on family and friends care, ‘Family and Friends Care: Statutory Guidance for Local Authorities’. This set out a framework for councils for providing support to children in the care of family, friends or other connected people. It required councils to publish their own policies on supporting family and friends carers by September 2011.
  3. The Guidance said:
  • The local authority should have in place clear eligibility criteria in relation to the provision of support services under section 17, including financial support to children living with family and friends carers.
  • Local authorities have the power to pay a Residence Order Allowance where this is the most appropriate way to safeguard and promote the child’s welfare.
  • Where a local authority offers financial support, it should draw up a written agreement setting out how much support will be offered and how long it will last, and the mechanism for review. This will ensure that all parties remain clear about the arrangements.
  1. The Council has been unable to produce a copy of its policy relating to the Residence Order Allowance that was applicable at the time Mrs X was first paid in 2005. Instead it has referred the Ombudsman to the “Policy for Payment of Special Guardianship Allowances (2016)”. Within this policy there is no reference to Residence Order / Child Arrangement Order Allowances.

What happened

  1. Mrs X is the maternal grandmother of Child A, Child B and Child C. She became their full time carer a number of years ago as their parents were unable to care for them. Mrs X received financial support from the Council for the benefit of Child B and Child C in the form of a Residence Order Allowance. This allowance was first paid in 2005.
  2. This is a discretionary, means-tested allowance.
  3. Mrs X receives financial support from a different local authority for Child A.
  4. In September 2018, the Council carried out an annual review of these allowances. This review showed the Council had been paying twice as much as it should have done in respect of Child B. This had resulted in an overpayment in the region of £11,500 between July 2016 and September 2018.
  5. The overpayment was not identified sooner because the Council did not carry out an annual review in 2016 or 2017. In response to the Ombudsman’s enquiries, the Council has apologised for this error. It has said it was due to responsibility for these allowances transferring to a different department.
  6. The Council has explained that the annual review practice changed in 2017. In November 2017, Mrs X was sent a financial assessment form to complete but she did not do so. Nor did she reply to a subsequent reminder letter. Normally, this would result in the Council withholding payment, as advised in the letter. This did not happen. The Council has said this was due to a staff changeover and resultant human error.
  7. The Council says it has now reworded letters to recipients to ensure responsibility in respect of public funds is properly understood.
  8. The Council has asked Mrs X to pay this money back. It says she should have realised she was being paid the same allowance twice because she received a monthly remittance slip that showed she was receiving two allowances for the same child. It says the onus was on her to query this with the Council. The Council has offered to work with Mrs X to agree a repayment plan that will reduce any financial hardship.
  9. Mrs X says she should not have to pay the money back because the allowance was received in good faith. She thought the additional money was to reflect Child B’s disability and special needs. Child B attends a special school and has an Education, Care and Health Plan. She also thought that because the other local authority paid a higher amount for Child A that there was some variation of what was paid, depending on the circumstances of the child. Child B has greater special needs that Child A.
  10. Mrs X says she is already in debt and repaying this money would make her situation far worse, and consequentially would affect welfare of the three children in her care.
  11. Mrs X is also unhappy about the amount paid by the Council for Child B and Child C. She says the other local authority pays a third more for Child A than the Council does for Child B, whose needs are significantly greater. She says she struggles to manage financially and feels she has not had enough support generally from the Council.
  12. The Council says it has carried out a means-test in line with the model recommended in the guidance and she is receiving the correct amount of support for Child B and Child C.
  13. The records show the family was the subject of a Child Protection Case Conference in August 2018. This related to concerns about what was happening at home. The minutes record that the Conference Chair was highly critical of the actions of the Council and its failure to support Mrs X in caring for her grandchildren.
  14. The chair said the matter was only brought to Conference because the social worker thought, “they would get more money”. The Chair also commented that the family had “received very little support” and “the family had not received a service from the local authority” and “the family have been let down for a number of years”.
  15. I have asked the Council to comment on this. The Council has accepted the decision to escalate the case to a Child Protection Case Conference was incorrect. But the Council says the support offered to Child B from the Council’s Disability Children’s team has not been poor. In support of this opinion, the Council has referred to services provided to Child B including access to residential short breaks.

Analysis

  1. The Council has accepted is was at fault because it did not carry out the scheduled annual reviews that should have taken place in 2016 and 2017. The situation was made worse because it failed to suspend the allowances to Mrs X when she did not provide financial information that was requested in November 2017.
  2. This led to the overpayment not being discovered until September 2018. It is entirely understandable why Mrs X should have been so alarmed and upset to be asked to repay £11,000 when she had no idea there was a problem and believed she was receiving what she was entitled to.
  3. I agree with the Council that there is a responsibility on those receiving public funds to check what they are receiving is correct. If they are unsure, they also have a responsibility to ask the council for clarification.
  4. But in this case, Mrs X says she had no reason the believe the allowances were incorrect for the reasons set out in paragraph 19 above. The case records I have read clearly show Child B requires additional support.
  5. I have asked the Council to show me what information was given to Mrs X. In response, it has provided me with copies of the “remittance advice” letters confirming the amounts put into her bank account. This is the only paperwork the Council has produced regarding what information was given the Mrs X about the allowances she received.
  6. I make the following observations about these letters:
  • They contain a table of the three amounts, the dates they are paid and a coded description.
  • The description is written in such a way that, in my view, it is not clear who the money is paid for. The child’s first initial appearing twice is the only distinguishing feature.
  • The coded child identification numbers are the same for two allowances. This would support the Council’s view that Mrs X should have realised she was receiving two allowances for Child B.
  • However, the two amounts payable for Child B were not the same. One was £101 and one was £99. This would suggest they were two separate payments, rather than a duplicate payment.
  1. In addition, the Council has failed to provide any evidence that Mrs X was told at the outset the terms on which the allowance was given and her responsibilities going forward.
  2. Where allowances such as this are paid, the Ombudsman would expect to see information provided to the recipient setting out how the allowance has been calculated and any conditions attached to receiving public money. This is a requirement of the guidance referred to in paragraph 9 above.
  3. I asked to see a breakdown of how the allowances were calculated. None had been provided. The Council has said it will have used the Standardised Means Test Model, but I have not been shown any of the figures used by the Council.
  4. It says there are no records prior to the 2018 review.
  5. Because of this I do not know what, if anything, Mrs X was told about the allowances she received. All she knew was that the Council continued to pay her what she understood was the correct amount without any review for a number of years.
  6. It is entirely understandable, even if she had noticed that two amounts were being paid for Child B that, in the absence of any information to the contrary, she would think she received more money because of Child B’s disability and special educational needs.
  7. Consequentially, Mrs X’s belief that the amount she received was correct was entirely reasonable, so I do not criticise Mrs X for not making enquiries of the Council about the amount she received.
  8. The Council has been unable to provide a policy in relation to payment of Residence Order Allowances which should set out the eligibility criteria for such payments. While the Council has referred to its policy, the only policy provided to the Ombudsman relates to Special Guardianship Allowances. While a relevant policy can be found online, this it predates the policy provided to the Ombudsman it is not clear whether an applicable policy exists or not. The Council should be able to refer to a policy that it relied on in making decisions about this case. It has not done so.
  9. In respect of Mrs X’s concern about whether she has received the correct allowance, I cannot say. But this, in itself, is of concern to me. Because of the lack of policy or explanation of the how the allowances have been calculated it has not been possible to form a view on this. I do not know whether an additional payment should have been made for Child B to reflect her additional needs.
  10. The Council attempted to improve its practices in November 2017, when it asked Mrs X to provide financial information for an annual review. While Mrs X should have provided this information, the Council did not take this any further and continued to pay the allowances when the letter said they would be suspended.
  11. In reaching my decision in this case, I have also had regard to the wider context of this case referred to at paragraphs 23-25 above. The comments made by the Child Protection Conference Chair are clearly critical of the Council’s handling of this case generally, particularly as the case was progressed to that level, to obtain more money for Mrs X. It is also clear from my reading of the children’s case records that Mrs X has made it clear that she has struggled financially, particularly since the death of her husband.
  12. Taking all of this into account, I find the Council was at fault because:
  • It has been unable to provide the Ombudsman with a copy of the policy about the allowances paid to Mrs X.
  • It did not carry out two annual reviews.
  • I have not been provided with a copy of the written agreement between the Council and Mrs X about her allowances.
  • Mrs X has been left unsure about whether she receives the correct amount, having regard to Child B’s needs.
  • Her family situation was inappropriately referred a child protection conference.
  • It sought repayment of £11,500 when the overpayment was due to fault by the Council.
  1. I consider the Council’s poor handling of this case has caused Mrs X an injustice. She has been caused significant distress when the Council requested repayment of allowances received in good faith when she was already suffering financial hardship. She has also been left with uncertainty about whether she has received the correct allowances for her grandchildren.

Agreed action

  1. To remedy the injustice caused by the fault identified in this decision, the Council has agreed to take the following action within four weeks from the date of my final decision:
      1. Apologise in writing to Mrs X for the fault identified in this decision statement.
      2. Withdraw the request for Mrs X to repay the overpayment of the Residence Order Allowance which only occurred due to fault by the Council. I have not made any additional financial remedy in this case in acknowledgement of Mrs X’s failure to respond to requests for financial information made in November 2017 and February 2018.
      3. Carry out a review of the allowances paid to Mrs X for Child B and Child C. If necessary, the Council will request in writing any specific financial information from Mrs X required to complete the means test. Mrs X should provide the Council with this information in a timely fashion. In the event of Mrs X being entitled to more money, this shall be backdated to the date the allowance was last reviewed.
      4. Following this review, the Council will provide Mrs X with a written agreement in line with government guidance.
      5. Provide a copy of the applicable Residence/Child Arrangement Order Policy to both Mrs X and the Ombudsman.

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Final decision

  1. The Council was at fault in the way it managed Residence Order Allowances paid to Mrs X. The Ombudsman has recommended an appropriate remedy.
  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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Investigator's decision on behalf of the Ombudsman

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