Summary: Mrs X complains about the support provided to her and her husband when they cared for their grandson following his birth. We find fault in the Council’s failure to treat Mr and Mrs X as friends and family foster carers. We also find repeated failings in the Council’s communications with them. This causes injustice in a loss of financial support and distress. The Council accepts these findings and has agreed action to remedy this injustice, set out at the end of this statement.

The complaint

1. I have called the complainant ‘Mrs X’. She complains on behalf of her and her husband ‘Mr X’ about the support provided to them after their daughter, ‘Ms Y’, became pregnant. In particular, Mrs X complains:

• A social worker inappropriately disclosed at a family group conference that it had previously considered allegations of child sexual abuse against Ms Y’s partner, ‘Mr Z’.
• The Council required Mr and Mrs X to care for Ms Y’s child (‘Child A’) from birth. In doing so it imposed excessively restrictive conditions on their supervision of Ms Y and Mr Z.
• The Council did not provide Mr and Mrs X with financial support for looking after Child A. Mr and Mrs X say it promised them such support.
• That throughout the events covered by this complaint the Council provided inadequate information to Mr and Mrs X explaining its decision making around Child A’s care.

2. Mrs X says the Council’s disclosure of information about Mr Z caused a planned support network arranged for ‘Child A’ to collapse. This resulted in Mr and Mrs X taking on more care for Child A. Mr X went on to leave his employment to help care for Child A. Mrs X says their income fell significantly causing financial pressures. These pressures combined with the lack of help and information from the Council caused them distress.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to continue with an investigation:

• If we believe the fault has not caused injustice to the person who complained.
• If it not significant enough to justify our involvement.
• If it is unlikely we could add to any previous investigation by the Council. (Local Government Act 1974, section 24A(6), as amended)

6. If there has been fault which has caused an injustice the Council has not remedied, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. 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)
8. 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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How I considered this complaint

9. Before issuing this decision statement I considered:

• Mrs X’s written complaint to the Ombudsman and supporting information provided, including that in telephone conversations with her.
• Information provided by the Council in response to written enquiries.
• Relevant law, guidance and case law referred to in the text below.

10. I also gave both Mrs X and the Council chance to comment on a draft decision statement setting out my proposed findings in this case. Both accepted the draft decision without challenging the analysis set out below.

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What I found

Background and chronology of events

11. Mr and Mrs X are the parents of Ms Y, an adult in her thirties who has a learning disability and epilepsy. Ms Y’s partner is Mr Z, another adult in his thirties with learning difficulties with a diagnosis of autism. Ms Y has received long-term support from the Council’s adult care services. It provides her with a payment to employ a relative as a personal assistant for 20 hours a week to help meet her care needs.
12. In March 2017 the Council received a referral from Ms Y’s midwife telling it Ms Y was pregnant. In May 2017 the Council decided to support the family under Section 17 of the Children’s Act 1989. This requires local authorities to safeguard and promote the welfare of children within their area who are in need, including promoting the upbringing of such children by their families. Services local authorities can provide include supporting children in need with their accommodation and financial help.
13. Working with the family, the Council drew up a plan explaining what support Ms Y would receive. It covered such matters as how Ms Y would attend appointments. It also explained that Ms Y and Mr Z would need a parenting assessment and support with practical skills to decide if they could care for their child.
14. In early August 2017 the Council held a family meeting with Ms Y, Mr Z and their support network including Mr and Mrs X and wider family members. By this time the Council had noted a historical record of involvement with Mr Z. It told the meeting it had previously considered an allegation of child sexual abuse against Mr Z. The accusation dated over 20 years previously when Mr Z was himself a child. The Council recognises it did not speak to any member of the family about this matter before the meeting. It accepts it was wrong to do so and notes it had to stop the meeting.
15. Ms Y gave birth to Child A in August 2017.To support Ms Y and Mr Z, Mr and Mrs X had arranged for them to move into the neighbouring property. The family plan said Mrs X would stay overnight with them, but they would also have support from wider family members. Mrs X said plans had to change following the disclosure about Mr Z. A note from the social worker then managing the case said “we had a plan through family group conference that covered most times but there was a three hour gap in the morning […] I explained that if they [Mr and Mrs X] were not able to cover every hour then we would be looking at seeking an order and placing the baby in foster care”.
16. Mr and Mrs X agreed to care for Child A on their discharge from hospital. The Council asked Mr and Mrs X, Ms Y and Mr Z to all sign a ‘safeguarding agreement’. This explained the Council had concerns Ms Y and Mr Z had unknown parenting capacity. It also explained the Council had concerns the stress of looking after Child A may cause Ms Y to have seizures. It further noted she received medication for depression. It said the Council needed to complete parenting assessments for both parents and a risk assessment on Mr Z. The agreement said Mr and Mrs X “must supervise all parents’ contact with [Child A] 24 hours a day, seven days a week until further assessments are completed […] to clarify supervised contact: [Child A] MUST NOT be left alone in the company of either his mother or father at ANY TIME, not even for a comfort break” (emphasis as per original).
17. Child A’s social worker changed at this time. Notes on the Council’s record in the week immediately after this agreement (and before Child A left hospital):

• Suggest the Council agreed that at times when Mr and Mrs X were both at work another relative could supervise Child A.
• Considered the requirement Mr and Mrs X could not take a comfort break was excessive.
• Had information Mr X may give up work to support his grandchild. The note says Mr X said “if he stopped work the family may need financial support”. The social worker says “the Child Arrangement Order (CAO) allowance was discussed and it was explained that it was means tested”. A CAO is one made by the Family Court that rules on where a child should live; what time a child shall spend with parents and contact arrangements etc.

18. The Council revised the family plan in September 2017. This said Mr and Mrs X would supervise Ms Y and Mr Z “at all times”. This further identified the need for Mr Z to also have a capacity assessment before he could have a risk assessment.
19. A further note made in mid-September 2017 also referred to Mr X potentially leaving work. The social worker again mentioned speaking about CAO allowance. But the note said there would be no decision about long-term planning for Child A until the parenting assessments completed.
20. In October 2017 the Council recorded Ms Y was no longer receiving help from the relative who had acted as her personal assistant. The note also recorded Mr X confirming he would be giving up his employment to help care for Child A. It recorded Mrs X asking about financial help and it telling her “the local authority are unable to pay [Mr X]”. The notes say its social worker told Mrs X that only if there were Court proceedings leading to a CAO would the Council consider an allowance. But “this is currently a family arrangement and family choice”.
21. The Council reviewed its planning for Child A approximately once a month. It has provided me with copies of the ‘child in need’ plan with versions dated after each of those meetings. However, there is little different in the content of these plans. The Council says the parenting assessments for Ms Y and Mr Z completed in mid-October 2017. But the planning documents do not record this. After October 2017 the Council agreed Ms Y and Mr Z could begin having unsupervised time with Child A (see below). But until July 2018 its child in need plan continued to refer to “a family plan to be executed to supervise [Ms Y and Mr Z] caring for [Child A] at all times”. Similarly, the planning documents do not record when Mr Z’s capacity or risk assessments completed. It refers also to Ms Y’s contacts with services immediately after the birth, without updating comments about those contacts.
22. The parenting assessment found that Ms Y and Mr Z would have capacity to parent Child A. However, they would continue to need support and practical skills training. Notes reflect that by November 2017 Child A spent some unsupervised time with his parents. In December 2017 the family plan contained the comment that Ms Y and Mr Z “wish to spend two to four hours alone with [Child A]”. It says “this was agreed by […] social worker”. The plan says “if this is positive, a gradual plan, starting with [Child A] staying with his parents one night a week up to three nights” would begin.
23. By the end of November 2017, Child A’s social worker changed again. Mr and Mrs X again asked about financial help. The Council recorded telling them that “with the Court order there would be financial assistance”. The note also recorded that Mr X would begin working as Ms Y’s personal assistant.
24. In January 2018 Council social workers took Child A’s case to ‘legal gateway meeting’. It recorded wanting “to support [Mr and Mrs X] in obtaining a Child Arrangement Order”. The Council said it would invite Mr and Mrs X to make an application for such an order and help with the court fee. It said this would “trigger financial assessment for CAO [allowance]”.
25. In February 2018 the Council assessed whether Mr and Mrs X would receive CAO allowance. It found they would not qualify. The Council recorded in its notes telling Mr and Mrs X the result of its assessment in March 2018. It did not put a decision in writing or give them details of its calculation or its CAO allowance scheme.
26. I asked the Council send me details of its CAO allowance scheme. It has sent me details of its special guardian allowance scheme. A special guardianship order (SGO) is not the same as a CAO. However, I understand the Council uses the same scheme to calculate both allowances.
27. The Council uses a means tests to decide eligibility for these allowances. It finds out the family income and takes account of certain expenses. In cases where the applicant pays rent or mortgage the Council caps this expense at £100 a week. The policy contains no explanation for this. The Council then considers what excess income remains and compares this amount with one and a half times the minimum income above state benefit levels plus. It next compares that figure with national fostering allowances. If it exceeds the national fostering allowance then the Council will not pay a Child Arrangement Order allowance.
28. But I note the Rotherham Safeguarding Children and Families Procedural Manual (available online) says “when Foster Carers apply for a Child Arrangements Order, the allowances are based on the basic rates of fostering allowance only (minus child benefit), and are not means tested for a period of two years. The social worker must ensure that the Foster Carer is aware of this”
29. Mr and Mrs X applied for a CAO in March 2018. After an initial hearing in May, the Court made an order in July 2018. The Order agreed a shared parenting arrangement between Ms Y and Mr Z and Mr and Mrs X.
30. Notes indicate the Council paid Mr and Mrs X’s legal costs, although it had not intended to further to its meeting in January. The Council accepted it potentially gave a confusing message in conversations with them. The Council closed its case soon after the Court made the CAO order.
31. In general comments on this complaint the Council pointed out that it did help pay some nursery costs for Child A, a passport application fee and for some clothing. It did this under its Section 17 powers (see paragraph 11 above).
32. During this investigation the Council also agreed that it should have treated Mr and Mrs X as ‘family and friends’ foster carers when Child A first left hospital (for explanation see below). It paid them around 10 weeks fostering allowance. However, it initially said it would have stopped the allowance in October 2017, following completion of Ms X and Mr Y’s parenting assessment. Although in line with my findings below it now accepts this was also incorrect.

My findings

The Ombudsman’s jurisdiction

33. Some of the events covered by this complaint took place more than 12 months before Mrs X complained to the Ombudsman. However, I have decided to use my discretion not to treat any of Mrs X’s complaint as a late complaint.
34. I find the Council ended its involvement in Child A’s case within 12 months of Mrs X complaining. Her complaint spans the whole time of its involvement. It asks us to consider the whole sequence of events during the Council’s involvement. I do not consider it reasonable to try and split that sequence. For example, I could not reasonably come to a view on how the Council responded to Mr and Mrs X’s requests for financial help without considering all the times they raised this issue. I am also satisfied the Council has kept enough records and the events are not so long ago that an investigation is practical.

Complaint about the family group conference

35. The Council has recognised it was at fault here. It should not have disclosed sensitive information about Mr Z without first considering the implications of doing so. However, while the Council could have shown greater sensitivity, I do not consider it could have continued working on Child A’s case without considering the impact of what it knew. So, the Council was always likely to have decided it did not want Mr Z having unsupervised contact with his child without first carrying out a risk assessment. It is difficult to see how it could have done that without disclosure at some point.
36. So, I do not find the disclosure caused injustice to Mr and Mrs X beyond the distress which arose at the meeting itself. Any longer term consequences which impact on them were always probable given what I have said above.
37. I consider the Council’s recognition that it disclosed information inappropriately enough to remedy any injustice caused to Mr and Mrs X.

Complaint about the safeguarding agreement

38. Mrs X considers the Council imposed too restrictive an agreement on the supervision she and Mr X had to provide over Ms Y and Mr Z’s parenting. I can understand why she considers the Council’s concerns excessive. But I am not going to criticise the judgement exercised by social workers that Child A could not leave hospital to enter the unsupervised care of his parents. The Children’s Act explains the Council’s overriding concern had to be for Child A’s welfare. It was this which led social workers to decide he should not enter his parents’ care without supervision before suitable assessments completed. This was not a decision taken with fault, because as the safeguarding agreement shows the Council could advance sound reasons for its decision.
39. The social work notes suggest the Council quickly recognised that expecting Mr and Mrs X not even to take a comfort break while supervising Child A was unreasonable. Because the Council quickly clarified this position, I consider no significant injustice arises from any fault here. Although, as I discuss below, it is a recurring feature of this complaint that the Council’s records are deficient in many regards. The first example is that it should have clarified any amendments to the safeguarding agreement in writing, but it failed to do this.

Complaint about financial support

40. I find that if Mr and Mrs X not taken care of Child A after birth, the Council would have begun proceedings to take Child A into its care. That is clear from the social work notes, various care planning documents and the safeguarding agreement.
41. If the Council needs to take a child into care, then the law says it must first consider placing the child with family or friends. They must be suitable and able to provide suitable care. In such circumstances the carer becomes a ‘family and friends foster carer’. They become entitled to a fostering allowance and other practical support. The fostering allowance is to cover the cost of caring for the child.
42. Statutory guidance and case law says family and friends foster carers must receive the same fostering allowance rate as professional, unrelated foster carers (minus any professional fostering fee). The council can also take off an amount equivalent to child benefit and child tax credit if the carer receives these. Councils should regularly visit the family and friends foster carer, draw up a placement plan for the child, hold looked after child reviews overseen by an Independent Reviewing Officer and supervise contact. Failure to properly identify a family and friends foster carer has financial implications for the carer and, potentially for the child too.
43. A private, or informal, family arrangement happens when a close relative has agreed with the parent to take on the care of the child. Under this arrangement the family carer has no right to any financial support from the council, although councils can decide to pay an allowance.
44. The courts have considered cases which focus on what arrangements for children to live with a relative or friend are private or informal. The key case is that of the London Borough of Southwark v D in 2007. This held that where a council had taken a major role in arranging for the child to be cared for by the friend or relative it was likely acting under its duties, under the Children Act, to provide the child with accommodation. The judgement also said that where the Council was facilitating a private law arrangement, it 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.
45. 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 side-step its duty, the carer must give ‘informed consent’ to accepting a child under a private fostering arrangement. To do this they must know, because of what the council told them, the child’s parent would continue being financially responsible. Without that informed consent, the council could not side-step its duty.
46. Statutory guidance says councils must have policies explaining:

• How family and friends carers are made aware of the eligibility criteria for financial support and when means testing applies.
• How to apply for any such financial help.
• How and when it makes decisions about eligibility.

47. Where the Council offers financial support, it should draw up a written agreement detailing the level of support and its duration. It should also explain any review mechanism, to ensure that all parties remain clear about the arrangements.
48. I noted the Council does have a Family and Friends Policy and Procedure as part of its Safeguarding Children and Families Procedural Manual (available online). This explains that children cared for by family and friends carers are those who circumstances are such: “that, if Family and Friends had not come forward to be assessed to care for the child, then the child would be placed with Local Authority Foster Carers or in residential care whilst permanency planning takes place”. The policy explains the Council will encourage consideration of longer-term arrangements such as CAOs, special guardianship or adoption.
49. The policy describes how the Council should assess family and friends foster carers. It also refers in general terms to the need for such carers to access support services. It refers to providing foster care allowance to children “within the LAC (Looked after child) system”. Another section of the policy defines “circumstances under which children in Family and Friends care may need to enter the Looked After system”. It gives some examples, but these refer mainly to circumstances where birth parents are uncooperative with such placements.
50. In applying all the above to the facts of this case it is clear the Council fell short of its responsibilities towards Mr and Mrs X. It did not:

• Consider if they were family and friends foster carers.
• Pay them the appropriate foster care allowance.
• Put anything in writing to explain why if it held this was a private arrangement, why that was.
• Put anything in writing to Mr and Mrs X explaining the differing financial support which might apply if there was a Child Arrangement Order for Child A.
• Offer any signposting for support for Mr and Mrs X.

51. All of this is fault. I also find it particularly concerning that Mr and Mrs X’s case came to the attention of three different social workers and their supervising senior officers. At one point it also went to a ‘legal gateway meeting’ with I assume the presence of legal officers. Yet there is not one entry in all the notes on the case which suggest that at any point any individual aware of Child A’s case recognised the Council’s failure in meeting these duties owed to Mr and Mrs X.
52. I consider part of the fault for this may lie with the Council’s policy. The policy defines a family and friend carer. But I do not consider it adequately reflects the range of circumstances where a child might become ‘looked after’, in line with the principles of the Southwark judgement. It also mentions only briefly the need for family and foster carers to receive foster care allowance.
53. The Council belatedly recognised the need to pay some family and foster care allowance to Mr and Mrs X. But I did not consider this enough. I commented above at how poor the child in need plans are in this case. The Council failed to properly update them after each monthly meeting. So, in July 2018 they still read as if Child A had just come out of hospital. Nor was the family plan updated after December 2017. But what is clear from the notes and the December family plan is the Council only wanted Child A having minimal unsupervised contact with Ms Y and Mr Z then. It was wrong therefore for the Council to imply that after the parenting assessments completed, it stopped regarding Mr and Mrs X as being Child A’s primary carers. They continued being Child A’s foster carers.
54. Social workers clearly encouraged a slow, gradual approach towards Child A having unsupervised contact. And they never supported the view that Ms Y and Mr Z should take on the full parenting for Child A encouraging the shared approach later confirmed by the CAO. The notes suggest that it was only in the early months of 2018 that Child A first spent a single night unsupervised with his parents. I consider it safe to assume that it was not until July 2018 that Child A’s parenting became more equally shared between Mr and Mrs X and his parents.
55. Consequently, I consider the first injustice arising from the Council’s fault is that Mr and Mrs X did not receive adequate financial support for taking on Child A’s care. I am satisfied that in effect they remained his family and friends foster carers until the CAO was made. They should have received financial support in this capacity until then.
56. The second injustice is that Mr and Mrs X have suffered distress arising from the Council’s failure to adequately support them. It denied them the opportunity to make informed decisions about choices available to them. It consistently failed to clarify its involvement in Child A’s care and how it regarded the support they provided.
57. The CAO provides long-term security for decisions around Child A’s welfare. I find at the time Mr and Mrs X sought this agreement they knew the Council would not provide discretionary financial assistance under its CAO allowance policy. Although I note they did not know the reasons for this (see further comments below).
58. However, that decision flowed from the Council’s failure to consider them family and friends foster carers. Had it been treating them as foster carers then the section of policy I quoted at paragraph 25 should have applied. This says CAO allowance is “not means tested” for foster carers obtaining a CAO “for a period of two years”. So, the Council’s decision was wrong. It did not need to means-test CAO allowance for Mr and Mrs X at all. That was fault.
59. The fault causes further injustice to Mr and Mrs X as they have again lost out on receiving financial support. Although I consider the Council could take account that Mr and Mrs X share parenting of Child A with Ms Y and Mr Z which would not lead it to pay the full CAO allowance.

Complaint about communications

60. It follows from what I have set out above that I consider this part of the complaint should also be upheld. I have addressed above some of the occasions when the Council’s communications fell short of basic good administrative practice.
61. But there are other examples. I have explained why I find the Council wrongly decided Mr and Mrs X had no eligibility to CAO allowance. But I note here there was another failure by the Council when it reached its decision. It never put anything in writing to Mr and Mrs X to explain what its CAO allowance policy is and how it assessed their means against the tests in that policy. As part of my research in this case I also could not access information about the policy online. That is a fault.
62. It is also clear Mr and Mrs X received contradictory information about their eligibility to a CAO allowance. Most references in the notes suggest that social workers only gave qualified advice to Mr and Mrs X. That they might receive financial support, but only after means testing. They do not support Mrs X’s account that she was consistently told the couple would receive financial support. But there is one note, I quoted at paragraph 22 and made in November 2017 where Mr and Mrs X were told that with a Court order they would get financial help. That was unqualified advice which raised their expectations.
63. These further examples of poor communications add to Mr and Mrs X’s injustice. They were caused further avoidable frustration and distress.

Agreed action

64. In paragraphs 55, 56, 59 and 63 I explain where I consider faults by the Council led to injustice for Mr and Mrs X. The Council accepts this analysis. It has agreed to take a series of actions in the next 20 working days to remedy their injustice. The Council will:
1. Provide an unreserved apology to Mr and Mrs X accepting the findings of this investigation.
2. Pay Mr and Mrs X family and friends foster payments to cover the full period when they cared for Child A up to the making of the CAO.
3. Begin a reassessment of Mr and Mrs X’s eligibility to CAO allowance taking account of the requirement this is not means-tested for foster carers obtaining CAOs; so Mr and Mrs X will qualify to receive it until July 2020. In this reassessment the Council will take account of the shared parenting arrangement with Ms Y and Mr Z set out in Child A’s CAO. It will establish facts on what percentage of unsupervised child-care Ms Y and Mr Z have undertaken since July 2018 (and any changes to that) and pay Mr and Mrs X allowance based on the remainder. For example if Mr and Mrs X care for Child A 50% of the time they should receive 50% of the weekly CAO allowance.
4. Pay Mr and Mrs X an additional £500 in recognition of their distress.
5. Commit to further reviewing the CAO allowance paid to Mr and Mrs X in July 2020. At that point the allowance will become means tested again.
65. In addition, the Council has agreed to learn lessons from this complaint. It has agreed that within three months it will have:
1. Completed a review of its current written policy covering family and friends foster carers. This is to ensure social workers and relevant others can identify family and friends foster carers. The policy will cover the requirement to put in writing all decisions around family and friends foster care to explain the authority’s role; sources of financial help; what financial help is being provided and so on.
2. Put on its website more information about the sources of financial support available to childrens’ carers to include details of family and friends foster payments, CAO allowance and special guardianship allowance schemes.
3. Considered if it should adopt a stand-alone CAO allowance policy to avoid confusion. It will also consider allowing a management review of decisions that no allowance is payable, to avoid fettering discretion in cases with exceptional circumstances.
4. Sought to identify other cases where the authority has failed to identify family and friends foster carers and pay them the appropriate allowance in line with its legal responsibilities.

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Final decision

66. For reasons explained above I uphold this complaint finding fault by the Council causing an injustice to the complainant. The Council has agreed action that will remedy this injustice and provide for a fair outcome to the complaint. Consequently, I can now complete my investigation satisfied with its actions.

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Investigator's decision on behalf of the Ombudsman