Summary: Ms B complains the Council did not pay her fostering allowance when it placed her granddaughter in her care. She also complains the Council did not give her proper advice around permanency choices for Y. Ms B says this meant she had to live in poverty and still does not have security for her granddaughter. The Ombudsman finds fault in how the Council addressed permanency choices and for not paying foster allowance.

The complaint

1. The complainant, who I refer to as Ms B, complains the Council did not provide adequate support when it placed her granddaughter, Y, in her care. Ms B says the Council did not pay her any fostering allowance and she had to give up her job to care for Y. She says this left her and Y in poverty. Ms B also complains the Council did not give her proper advice about the different types of permanency order she could apply for. She says the Council advised her to apply for a residence order when a special guardianship order (“SGO”) provided more security. Ms B says this led to ongoing problems following her move away from the Council’s area.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
5. 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. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. I considered the information Ms B provided and discussed the complaint with her. I then made enquiries of the Council. The Council accepted fault in not paying the fostering allowance and offered a remedy. I considered this remedy and made further enquiries of each party before reaching a draft view. I then sent a copy of my draft decision to each party for their comments.

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What I found

Law and Guidance

7. When a child in need needs to be accommodated by a council, the Children Act 1989 says councils should first consider placing the child with family or friends.
8. If the carer becomes a family and friends foster carer, the carer is entitled to receive a fostering allowance and other practical support for them and the child from the council. The fostering allowance is provided to cover the costs of caring for the child.
9. The Government sets out national minimum standards each year of what rates it would like councils to set as a minimum. Councils then set their own rates. The statutory guidance, and case law, says family and friends foster carers must receive the same fostering allowance rate as professional unrelated foster carers. The council can take off an amount equivalent to child benefit and child tax credit from the allowance if the friends and family carer receives these. This is because the family and friends foster carer can claim these benefits and professional fosters carers cannot.
10. There are several options that allow a carer more permanency in their care of a looked after child. Two of these include a residence order or SGO. In each case the carer gains parental responsibility for the child and will no longer be eligible for fostering allowance. However, there are differences between the two:
• An SGO prevents other holders of parental responsibility from making applications to the court unless they gain the court’s permission. A residence order does not.
• An SGO grants greater rights than other holders of parental responsibility, whereas a residence order does not.
• The Special Guardianship Regulations 2005 set out a framework for the Council to provide means tested financial support to the holders of an SGO. There is no such legal framework in the case of a residence order, so any financial support is at the Council’s discretion.

Background

11. Y was born in mid-2011. Her mother, Miss D, is Ms B’s daughter. Miss D was young and not living with Ms B at the time. She became known to social services early on for several reasons, including alleged abuse by her partner and concerns about the health and welfare of Y.
12. The Council placed Y with Ms B, initially for two weeks while it tried to work with Miss D. However, Miss D did not consistently engage with the Council, so Y stayed with Ms B. The Council set up supervised contact. Ms B says this went on for a long time but eventually the Council started to discuss assessments for long-term care with Ms B.
13. The Council’s case notes show it discussed signing an agreement for Ms B to care for Y in November 2011. The Council accepts it should have paid Ms B foster allowance from the beginning of November 2011.
14. In January 2012, the Council held a meeting with Ms B and Miss D. It discussed the child benefits and child tax credit being paid to Miss D. It said these should now transfer to Ms B as she was caring for Y.
15. Ms B raised concerns with the Council about her finances between late January and early February 2012. She said she was not yet receiving the benefits or tax credit. In early March 2012 Ms B told the Council Miss D had still not signed the benefits and tax credits over to her and did not give her the money she was receiving.
16. A core group meeting was cancelled in mid-March 2012 as the social worker needed to attend court. The social worker said she would send a letter to the benefits teams in support of the benefits and credits being signed over to Ms B.
17. A few days later there was an incident in which Miss D did not return Y home from a contact session. Ms B contacted the police, who said she had no legal grounds for Y to be returned as she was with her mother, Miss D. Ms B contacted the Council who said it would try to persuade Miss D to hand Y back to Ms B’s care. The case note shows Y was back with Ms B the following day.
18. The case notes show one or two discussions about a potential residence order before this incident. The incident seems to have then been the catalyst to apply for a residence order. The Council agreed to explore whether it could fund the application and Ms B consulted her solicitor.
19. A child protection conference took place at the end of March 2012. Following the meeting the social worker helped Ms B to telephone the benefits teams about signing over the benefits and tax credits. Ms B has provided evidence that her claim for these started in March 2012. It is not clear exactly when she started receiving these, but the case notes show she was not receiving payments, at least until the end of May 2012.
20. At the beginning of May 2012 an incident took place in which Miss D and others tried to take Y from Ms B by force in public. The following day the court issued a prohibitive steps order and gave Ms B permission to apply for a residence order but said she needed to maintain three days’ contact between Miss D and Y each week.
21. In late May 2012, Ms B asked the Council for help with childminding costs. The social worker said it was likely she would get fostering payments in the future, following a looked after child review. She said she would ask her manager about funding for childminding in the meantime. The social worker asked her manager, whose emailed response simply said ‘no’, with no further explanation.
22. The Council allocated Ms B a new social worker and in June 2012 the hearing took place for a residence order. The court did not grant a residence order. Ms B says this is because of concerns about the Council not having been through the proper legal procedures. The case notes say the judge was concerned about the lack of contact for Miss D and requested a further assessment. However, the court put in place a parental responsibility order for Ms B pending a further hearing in October 2012. At the hearing in October 2012 the court granted a residence order.
23. In November 2012, the Council started to pay Ms B an allowance of £50 a week to help in supporting Y. These payments continued until March 2013, at which point Ms B moved to Scotland with Y. The Council then stopped the payments. Ms B asked her new local authority for financial support, but it said it would not do so until she had lived there for ‘some time’.
24. Ms B complained to the Council in May 2013 that it had stopped financial support without telling her. She complained the Council had not paid her foster allowance throughout the time she had Y or given her the support it should have done. She said the Council should have treated Y as a looked after child.
25. The Council met with Ms B. It sent her a letter in response to her complaint apologising that there had been a turnover of several social workers and that one social worker did not always respond to her complaints. The response letter does not address the concerns Ms B raised about financial support.
26. Ms B complained to the Council again in 2018. The Council did not respond to the complaint as the matters she complained about happened six years earlier. The Council’s policy is to only investigate complaints within the last year except in exceptional circumstances.
27. Ms B says she has had continued problems getting support from her local authority in Scotland because of the residence order. She is also now facing problems with Miss D trying to regain custody of Y. Ms B says an SGO would have provider better protection against this.

Findings

Time

28. Normally we will not investigate complaints that are more than 12 months old. However, we can exercise discretion to investigate if we consider it is appropriate to do so. I exercised discretion to investigate this complaint as there was a realistic prospect of reaching a meaningful decision based on the retained records. Also, because Ms B gave understandable reasons for why she did not complain earlier.

Fostering Allowance

29. The Council accepts it should have treated Y as a looked after child and paid Ms B fostering allowance as a family and friend carer. I will therefore not go into detailed reasons about why this is fault and will instead address the Council’s offer to pay Ms B backdated fostering allowance.
30. The Council has calculated that it would have paid Ms B £5,620.05. However, it says Ms B would not have received £1,000.00 in child benefit and £1,590.95 in child tax credit, had it paid the allowance. It therefore deducts this amount. The Council also deducts the £1,000 it paid to Ms B in £50 per week instalments, and £650 it paid to Ms B towards her move to Scotland. This leaves a payment of £1,379.10.
31. Ms B disagrees with these deductions. She says she had to give up her employment to care for Y so lost her only source of income and was forced into poverty. She says there was a significant gap between her taking Y and receiving child benefits and tax credits, due to delays by the Council.
32. The fault is that the Council did not pay Ms B the fostering allowance. The injustice is that Ms B suffered avoidable financial hardship. It is therefore relevant to consider what level of financial hardship fostering allowance would have avoided. If Ms B would not have received certain payments, had she received fostering allowance, it is reasonable for the Council to deduct this.
33. I accept Ms B would not have received child benefits and tax credits had she received fostering allowance so the Council may deduct this. However, it is clear Ms B did not receive these benefits for the entire period the Council has deducted. The Council has calculated from start of November 2011 to start of October 2012, so 11 months. Ms B did not receive the benefits until at least the end of May 2012, so the relevant period is only four months.
34. I cannot see any fault on either Ms B or the Council’s part in arranging to have the benefits transferred. Both tried to engage with Miss D to have them transferred. When this did not work the Council supported Ms B to contact the relevant benefits agencies directly. However, the seven months of payments that went to Miss D, do not negate the injustice Ms B suffered as a result of not receiving fostering allowance.
35. Any question about whether Miss D should have received payments for seven months would be a matter for the relevant benefit agency. It does not impact on Ms B’s injustice.
36. I recommend the Council only deduct four months’ worth of child benefit and tax credits. Neither Ms B nor the Council have retained details of the exact amounts paid in each month, so I have calculated the amounts proportionately. The Council may deduct the following for four months:
• Child Benefit - £364
• Child Tax Credits - £578
37. If either Ms B or the Council has information that suggests these amounts are not correct, they may raise this in their comments on the draft decision statement.
38. In terms of the additional payments of £1,000 and £650, I do not agree the Council should deduct these. The payments were discretionary support the Council gave to Ms B during a different timeframe to that in which it would have paid foster allowance. The fostering allowance would have stopped in October 2012 when Ms B obtained a residence order. The discretionary payments started a month later, in November 2012.
39. When the fostering allowance stopped, Ms B would have found herself in a similar position, with no mainstream income. It is likely she would have asked the Council for financial support in the same way. Had she had an SGO, she could have applied for means tested support. With a residence order, she was in the same position in asking the Council for discretionary support. The Council would have needed to decide whether to provide discretionary support on almost the same facts. The only difference being that Ms B had previously received a small amount each week in fostering allowance.
40. I do not believe the Council can say with any certainty that it would not have paid the additional sums, based on it previously paying Ms B fostering allowance. I therefore recommend the Council does not deduct these payments.
41. The payment I recommend, in view of the revised deductions, is £4,678.05.

Support and Advice

42. Ms B also raises concerns about the Council not properly protecting her and Y from Miss D, and not giving support and advice on which permanency option to apply for. Ms B suggests she would have applied for an SGO, had the Council properly advised her, due to its added protections.
43. The Council’s response focuses on the fostering allowance. It does not comment on whether it agrees it was at fault on these additional matters. However, it offers to pay Ms B £150 to recognise the distress caused. Ms B says this does not adequately reflect the level of distress caused.
44. It is my view £150 does not reflect the full scale of the fault or the distress this caused Ms B.
45. The non-payment of fostering allowance meant Ms B went without resources she was entitled to for at least eleven months. Ms B was already on a low income and, as she says, the lack of financial support meant she and Y lived in a level of hardship that would not have been the case had she received those resources. This, in of itself, caused significant distress to Ms B.
46. There is also fault in the advice the Council gave Ms B around permanency choices. I can see in the case notes, the Council has mentioned a residence order several times. There is no evidence the Council made Ms B aware of any alternatives, such as an SGO. I would have expected to see evidence the Council properly discussed all the options with Ms B.
47. I cannot say for certain what impact the fault had. There were many factors involved at the time. I also cannot say whether the court would have granted an SGO. I note an SGO may have provided more, but not complete security. Miss D could still apply for leave of the court to challenge the order. Most significantly, Ms B was represented by a solicitor who could equally have advised her of the different options
48. Nonetheless, the Council should have explained the choices properly and it does seem likely Ms B would have opted for the more secure option of an SGO, which also gave a framework for financial support. This means there is injustice to Ms B in the form of uncertainty about the difference it might have made had the Council properly explained the options. That injustice is limited by the fact Ms B had her own legal representation but adds to the other elements of distress I have identified.
49. I understand Ms B has experienced continued problems in accessing support since her move to Scotland. She says many of these problems arose from getting a residence order rather than an SGO. She says her current local authority does not recognise the order and told her that the Council should have continued to provide her with any financial support.
50. This feeds into the uncertainty about what would have happened had the Council advised Ms B about the different permanency options. However, again, the injustice is limited by certain factors.
51. The Council’s payments to Ms B were discretionary so it had no legal duty to continue payments once she moved away from its area. When Ms B moved to Scotland her new local authority became the responsible body for providing children’s services. If Ms B suffered financial difficulties that impacted on her care of Y, it would have been for her new local authority to consider any support it might provide.
52. I have not been able to find any clear legislation or guidance that says, had Ms B obtained an SGO instead, which local authority should have been responsible for continuing any special guardianship allowance after her move to Scotland. A discussion might have needed to take place between the two local authorities. However, as already outlined, I cannot say for certain whether Ms B would have obtained an SGO. The injustice is the uncertainty about whether more formal support might have been available, whichever local authority it came from.
53. It is my view the distress caused to Ms B was significant and prolonged, albeit limited by the factors I have outlined. I recommend the Council pay Ms B £400 to recognise the distress caused.
54. The Council has also offered Ms B £150 to recognise the time and trouble spent in bringing the complaint. This is within the normal scope of what we would recommend, and I would not recommend a figure substantially different.

Agreed action

55. The Council has agreed to, within a month of this decision:
• Apologise to Ms B for not paying her the fostering allowance she was entitled to and for not providing adequate advice and support around permanency
• Pay Ms B £4,678.05 to cover the fostering allowance she should have received
• Pay Ms B £400 to recognise the avoidable distress caused
• Pay Ms B £150 to recognise the avoidable time and trouble spent in bringing complaints to the Council
56. The Council has also agreed to, within three months of this decision:
• Provide evidence it has reviewed the information it gives to carers who are considering permanency options, to ensure it provides information on all the options available for carers to consider with their legal representative, so they can consider these in terms of security and access to financial assessment

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Final decision

57. The Council is at fault for not paying Ms B fostering allowance and in the information it provided to her regarding permanency options.

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Investigator's decision on behalf of the Ombudsman