Summary: the Council misled Miss B about the support she was applying for when she took on care of her brother and unreasonably stopped the financial support without warning. That caused Miss B financial difficulty and led to her going to time and trouble to pursue her complaint. An apology, payment to Miss B and reminder to officers is satisfactory remedy for the injustice caused.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council:
• misled her about the support she was applying for when she took on care of her brother; and
• stopped financial support without warning or telling her the support was time-limited.

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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. 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

4. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided;
• considered Miss B’s comments on my draft decisions; and
• gave the Council an opportunity to comment on my draft decisions.
5. 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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What I found

Legal and administrative background

6. The Children Act 1989 says that children’s needs and welfare are paramount and the needs and wishes of the child should be put first.
7. A Council can decide that a child is a Child in Need under Section 17 of the Children Act. This is a child who is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining a reasonable standard of health or development without services from the Council.
8. 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.
9. A private, or informal, family arrangement happens when a close relative has agreed with the parent to take on the care of the child.
10. This private arrangement could be confirmed in court in a private law order called a child arrangements order. 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.
11. 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.
12. 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, and how and when decisions are made about eligibility. Where financial support is offered, a written agreement should be drawn up detailing the level and duration of the support that is to be provided and the mechanism of review, to ensure all parties remain clear about the arrangements.
13. 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 a special guardianship allowance. The council must review this at least annually and it can be removed.
14. The starting point for calculating special guardianship allowance is the council’s fostering allowance rate minus child benefit and child tax credit. The allowance is means tested and the guardian may end up receiving no allowance at all.
15. The Council’s friends and family carers policy says families have to be able to make an informed choice about the support they offer one another and not to commit to a child, only to find it unrealistic. The policy says social workers need to be clear and understand what it is they are asking the family to do and what support is required for them to do it before the family member takes on responsibility of caring for the child. It says it may be possible to offer some limited financial support under section 17 of the Children Act 1989. It says this could be a one-off payment, a payment for specific items or more regular payments over a period of time. It says those payments will be monitored and reviewed regularly.
16. The policy says in all cases it is essential parents and family and friends carers have a clear understanding of the status of the arrangements. The policy says the Council will need to be clear about the level of support that will be provided.
17. The policy says the Council has discretion to pay a residence order allowance (now a child arrangements order allowance). It says the allowance is reviewed annually. The policy says payments under a special guardianship order are means tested and also reviewed annually.

Chronology of the main events

18. In 2015 Miss B’s mother became ill and went into hospital. Miss B’s brother at first went to stay with his grandparents but Miss B told the Council he could not stay there long. Miss B, who lives in London, told the Council the family were keen for her to take over the care of her brother and she had contacted her home council to look for accommodation. The Council agreed to telephone the London council to support her application. When the Council did that it told the London council it wanted to place Miss B’s brother with her.
19. Miss B received an offer of a flat and told the Council her brother would move in with her in April. The Council awarded funding of £120 per week.
20. On 12 February 2015 a Council officer visited Miss B’s brother at his grandparent’s house. The officer told the grandmother the Council intended to visit Miss B’s mother in hospital to make sure she agreed to Miss B applying for a special guardianship order. When the Council did that Miss B’s mother agreed.
21. Miss B contacted the Council on 25 February because the London council had told her she was not financially stable enough to support a flat. The Council told Miss B it had awarded the maximum amount it could pay her.
22. Council officers met to discuss the case on 20 March. The Council noted it had awarded a residence allowance and would support via section 17. The Council noted Miss B had a school place available for the brother. The meeting agreed for officers to advise Miss B to progress with an application for a child arrangement order.
23. On 31 March Council officers attended court with Miss B. The court granted a child arrangement order.
24. On 1 April the Council began paying £120 per week which is recorded as awarded because of a special guardianship order. The amount is noted as equivalent to the Council’s fostering allowance less child benefit and child tax credits.
25. On 9 April Miss B’s mother sadly died.
26. Miss B moved into shared accommodation with her brother in around June 2015 and the Council closed the case. The Council continued to pay Miss B £120 per week.
27. On 16 April 2018 Miss B telephoned the Council to ask why it had stopped her allowance. The Council told Miss B it had only agreed the allowance for three years. Miss B said she had understood the allowance would be reviewed and continued. Miss B said she had recently moved house and had a baby and her brother had extra needs which required the extra finance. The Council told Miss B it could look at reviewing the allowance if Miss B provided the details for a financial assessment. The Council emailed Miss B to tell her what it needed from her and provided her with a copy of the allowance forms.
28. On 19 April the Council told Miss B after reviewing her file it had identified she had a child arrangement order. The Council said this meant it could not review the allowance and Miss B would need to apply to her own local authority to seek a special guardianship order. Miss B said she felt the Council had misled her as she had understood she had a special guardianship order.
29. On 1 May the Council told Miss B it had made a referral to the London council for her brother’s needs and extracurricular opportunities. The Council told Miss B her case would go to panel the following day to seek a lump sum as a final payment to cover the interim.
30. On 2 May the permanency panel agreed to pay Miss B £1,100 as a gesture of goodwill. When the Council told Miss B that she again raised concerns as she said she had asked for a special guardianship order and that is what she thought she had.
31. Miss B contacted the Council on 8 May 2018. Miss B told the Council it had never told her it would stop the allowance. Miss B explained her financial circumstances.
32. On 3 July the Council’s permanency panel considered the case and agreed to fund £215 for Miss B to apply for a special guardianship order.
33. On 17 July 2019 the Council wrote to Miss B to explain it had no legal responsibility to provide support. The Council said a special guardianship order may have been more suitable for her than a child arrangement order. In recognition of that the Council agreed to pay an allowance for up to six months. That was to allow Miss B to apply for a special guardianship order through her home local authority. The Council explained it hoped that would provide Miss B with time to seek the correct order. The Council said it would consider extending the allowance beyond six months if Miss B had not secured the order by that point.

Analysis

34. Miss B says the Council misled her about the support she was applying for when she took on care of her brother. Miss B says the Council led her to believe she had applied for a special guardianship order. Miss B is therefore concerned the Council ended its financial support for her in 2018 and only then told her she had applied for a child arrangement order rather than a special guardianship order.
35. I have carefully considered the documentary evidence from 2015, which is when Miss B’s brother went to live with her. The Council’s documentation at that time refers to Miss B applying for a special guardianship order. In addition to that, when awarding £120 per week financial support the form completed by the Council again ticked the box for a special guardianship order. Given the Council’s records at the time I consider it likely, on the balance of probability, the Council did not properly explain to Miss B what order she was applying for. Indeed, it seems to me the Council had also misunderstood the order Miss B had applied for given its records in 2018 show it sending Miss B an application to have the special guardianship payment extended and then, within a few days, telling Miss B this was not possible because the Council had discovered she had a child arrangement order instead. Failure to make clear to Miss B what order she was applying for and the implications of that decision in 2015 is fault.
36. The Council says Miss B knew she was applying for a child arrangement order because she ticked the box on the form confirming that was what she was applying for. However, the Council is aware when completing the application paperwork Miss B did not have any legal representation. Miss B was therefore wholly dependent on the Council providing her with the right advice. The form the Council is referring to has three tick boxes on it. One is for a child arrangement order, one is for a prohibited steps order and one is for a specific issue order. I see no reason why Miss B would have known a child arrangement order was different to a special guardianship order given there is no evidence the Council had explained the difference to her. I therefore do not consider completion of that form meant Miss B knew a child arrangement order was different to a special guardianship order and that this is what she had chosen to pursue.
37. I am also concerned the Council did not confirm in writing what it had agreed in terms of financial support for Miss B. The Council suggested it awarded £120 a week as transitional support for three years. However, that is not supported by the documentary evidence. The documentary evidence shows an award of £120 as ‘ongoing financial assistance.’ There is nothing in the Council’s documentary records from 2015 to suggest it intended the financial support to be time-limited. Nor is there anything in the Council’s records to show it told Miss B the support would be time-limited. Failure to make the position clear to Miss B in 2015 is fault.
38. It is also not clear to me what the £120 financial support was intended to fall under in terms of the Council’s policy. Under the Council’s policy if it awards either a residence order allowance (which is now a child arrangements order allowance) or a special guardianship order allowance the Council should review the award on an annual basis. Clearly that did not happen in this case. Failure to follow the policy and write to Miss B to confirm the nature of the financial arrangements made is fault.
39. I now have to go on to consider what injustice the fault I have identified caused Miss B. It seems to me Miss B believes if she had a special guardianship order the Council would have provided an allowance until her brother reached 18 years of age. However, that is not accurate. Payments under a special guardianship order are subject to a means test and reviewed annually. So, the fact Miss B has a child arrangement order rather than a special guardianship order does not necessarily mean she has missed out on ongoing financial support.
40. However, given the Council had not told Miss B the award was time-limited she had a reasonable expectation payments would continue in 2018. I welcome the Council’s decision to award a discretionary payment and put in place weekly payments for six months from July 2019 to allow Miss B time to secure a special guardianship order. However, I do not consider that remedies the sudden removal of funds in April 2018. As the Council did not put in place a further six months funding until July 2019 this, in effect, means Miss B was unexpectedly without funding for her brother between July 2018 and July 2019. As the Council had not told Miss B the funding was time limited I recommended the Council backdate funding for the period July 2018 to July 2019. I also recommended the Council pay Miss B £250 on top of that to reflect her distress at having the allowance removed without notice and the time and trouble she had to go to in pursuing her complaint. I further recommended the Council send a memo to officers dealing with these types of cases to remind them of the Council’s policy. The Council has agreed to those recommendations.

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Agreed action

41. Within one month of my decision the Council should:
• apologise to Miss B;
• backdate the allowance for the period July 2018-July 2019;
• pay Miss B £250; and
• send a memo to officers to remind them of the Council’s policy for annual reviews of payments made to family and friends carers and the need to confirm any financial arrangements in writing.
42. The Council has already made two lump sum payments to Miss B and agreed to pay a further allowance for six months to allow Miss B to apply for a special guardianship order, unless Miss B secures the order and financial support from her home local authority before then. The Council has agreed if the order is not made within six months it will look to extend the allowance.

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Final decision

43. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman