Decision : Upheld
Decision date : 20 Jan 2020
The Ombudsman's final decision:
Summary: Mr and Mrs X complain the Council wrongly considers the placement of their grandchildren with them is a family arrangement and it failed to advise them on the options for securing the case of their grandchildren. There is no evidence to show the Council placed the grandchildren with Mr and Mrs X. The Council is at fault as it failed to provide sufficient advice to Mr and Mrs X about securing their care for their grandchildren and it delayed in considering their complaint through the children’s services statutory complaints procedure. The Council has agreed to remedy this injustice by making a payment of £450 to Mr and Mrs X.
- Mr and Mrs X complaint that the Council wrongly viewed the placement of their grandchildren as a family arrangement rather than a placement by the Council and failed to give them advice on their options for securing the care of their grandchildren. Mr and Mrs X consider the Council should pay foster carer allowance for the period 2011 to 2017 when they obtained a special guardianship order.
What I have investigated
- Mr and Mrs X made a number of complaints to the Council. I have investigated the issues of the placement of the children and the advice provided on securing the care of the children as these are the matters Mr and Mrs X raised with us.
The Ombudsman’s role and powers
- 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)
- Mr and Mrs X were first aware of their complaint in 2017 but only made a complaint to the Ombudsman in 2019. I have exercised discretion to investigate the complaint as it took over two years for their complaint to complete the children’s services statutory complaints procedure.
- 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)
- 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)
- 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)
How I considered this complaint
- I have:
- Considered the complaint and the information provided by Mr and Mrs X;
- Discussed the issues with Mrs X;
- Considered the responses to Mr and Mrs X’s complaint through the statutory children’s services complaints procedure;
- Made enquiries of the Council and considered the information provided.
- Invited Mr and Mrs X and the Council to comment on the draft decision.
What I found
- The principle in law is that all children, including ‘looked after children’, should wherever possible be cared for by their families and friends. So, a council may fulfil its legal duty to accommodate a child by placing them with relatives or friends. That relative would be considered to be a family and friends foster carer. The local authority would have to undertake certain checks and approvals of their suitability to care for the child, and monitor the child’s welfare. The family member caring for the child would then be entitled to receive weekly fostering payments to help care for the child at the same rate as an authority foster carer and would receive support from a social worker.
- An informal family arrangement is where a relative has chosen to take on the care of a child but does not have parental responsibility for the child and the arrangement was not made by the council. They may have chosen to care for the child as they perceive the parent is unable to do so or there may be an agreement between the relative and parent. In this case, the child would not be a looked after child and financial responsibility for the child remains with the person who has parental responsibility for them.
- The courts have held that:
- If a local authority plays a major role in making arrangements for the child, the most likely conclusion is that it is exercising its powers and duties to accommodate the child.
- Informal family care arrangements are usually made direct between individuals.
- If a local authority intends to merely assist in arranging informal family care rather than accommodating a child itself, the local authority must be explicit with those involved, including giving clear information about who will be financially responsible for the child. If this is not made clear, the courts and others are likely to decide the local authority is making the placement itself. Only on receiving such information can a potential foster carer give informed consent to accept the child on an informal family care arrangement.
- Mr and Mrs X are the parents of Ms Y who has four children. At the time of the complaint the children were aged between two and 11 years old. In February 2011 the children’s school contacted Mrs X as it had refused to allow Ms Y to collect the children as she was intoxicated. Mrs X collected the children and took them to her home.
- A few days later officers A and B, social workers, visited Mr and Mrs X at home to carry out an initial assessment. The record of the visit notes Ms Y and the children had been staying with Mr and Mrs X for three months as additional support for Ms Y due to her alcohol misuse. Mr and Mrs X dispute Ms Y and the children had lived with them.
- The record also notes Mrs X wanted Ms Y and the children to live with her to ensure the safety of the children. Mr and Mrs X have said they did not invite Ms Y to live with them at this time. The record notes Mrs X said she would be prepared to give up work to care for the children if she knew she would be financially supported. Officers A and B also spoke to Ms Y who agreed the children should stay with Mr and Mrs X until she could get the support she needed.
- The record of the visit also notes officers A and B advised Mr and Mrs X to seek legal advice about obtaining a residence order for the children, contact welfare rights and claim benefits now the children were in her care. Mr and Mrs X have said officers A and B said that if they wanted to keep the children in their legal care they would have to be taken into the Council’s care and they may not get the children back. There is no record of this conversation in the officers’ record of the visit.
- The Council’s records show it raised payments of £100 per week to Mr and Mrs X for eight weeks while they made applications for child tax credit and child benefit. I understand these payments were child in need payments made in accordance with section 17 of the Children’s Act 1989. Mr and Mrs X have said they only £400.
- The Council’s initial assessment record notes there had been previous concern about Ms Y’s drinking and this had led to a crisis situation where Mrs X felt it was appropriate to take responsibility for the care of the children. The assessment records Mrs X is the grandchildren’s main carer. It also notes Mr and Mrs X advised they would like to seek parental responsibility for the children due and would seek legal advice. The assessment concludes there was no further role for the Council and the children would remain in Mr and Mrs X’s care with consent from Ms Y until appropriate legal advice was sought.
- In 2012 Mrs X contacted the Council for advice as she and Mr X wanted to apply for a residence order as they did not have parental responsibility for the children but could not afford the legal fees. She also advised the children were unlikely to return to Ms Y’s care as her alcohol misuse had worsened. The Council’s records show an officer advised the Council could not assist with legal fees.
- The children remained in Mr and Mrs X’s care and they did not have further contact with the Council until 2016 following a referral to children’s services from one of the children’s colleges. The Council raised concerns with Mr and Mrs X that they did not have parental responsibility for the children.
- In 2017 Mr and Mrs X applied for and were granted SGOs for three of the children. The eldest was now an adult so Mr and Mrs X did not require guardianship for her.
- Mr and Mrs X sought legal advice when applying to be special guardians for the children. Following this advice they considered the Council placed the children with them so they should have been paid foster carer’s allowance.
- In early 2017 Mr and Mrs X made a complaint to the Council about a number of matters. The complaints relevant to this investigation are that the Council failed to give them full advice about the options to secure the care of the children and wrongly viewed the placement as a family arrangement. Between early 2017 and mid 2019 the Council considered the complaint through the children’s services statutory complaints procedure.
- The independent investigation at stage two of the complaints procedure upheld Mr and Mrs X’s complaint about that they were not given full advice about the options they could pursue to secure their grandchildren in their care. It found officers did not consider all the options for placing the children, including placing the children with the Council if Mr and Mrs X could not accommodate them. The Council did not give sufficient advice about options for parental responsibility and it was not good practice to simply advise Mr and Mrs X to seek legal advice. The Council apologised for this fault. The independent investigation made no finding about whether the Council had placed the children with Mr and Mrs X. It made recommendations for the Council to improve its practice including the Council should provide information about the implications of special guardianship orders and the criteria used to assess if it is accommodating a child or if it is a family arrangement. The Council has provided evidence to show it is implementing these recommendations.
- Mr and Mrs X escalated their complaint to stage three of the complaints procedure and attended a review panel as they disagreed with the outcome of the independent investigation. The review panel partially concluded there was a lack of evidence to show the placement was not a family arrangement but partially upheld the complaint as it considered officers had lacked knowledge of the issues family and friends carers and had not determined if Mr and Mrs X would be providing long term care.
- A senior officer then issued an adjudication response to Mr and Mrs X. The officer accepted there had been shortcomings in the Council’s practice but did not find the Council had placed the children with Mr and Mrs X.
- Mr and Mrs X remained unhappy with the outcome of their complaint so made a complaint to the Ombudsman.
- In response to my enquiries the Council has said:
- It was not involved in placing the children with Mr and Mrs X as they were already in their care when the assessments took place;
- Ms Y and the children had been staying with Mr and Mrs X and Mrs X appeared to be the children’s main carer;
- Mr and Mrs X wished to seek parental responsibility for the children and Ms Y did not contest this.
- I asked the Council to account for why Mr and Mrs X’s complaint took over two years to complete the children’s service statutory complaints procedure. The Council has shown some delays were agreed with Mr and Mrs X and some delay was caused by exploring if it could seek a resolution. However, the Council has acknowledged it exceeded the statutory timescales at all stages of the complaint process. It has offered to make a payment of £150 to Mr and Mrs X to acknowledge any distress caused by the delays.
- Mr and Mrs X consider the Council placed the children with them so it should pay foster carers allowance to them as they have suffered financial hardship as Mrs X had to give up work to look after the children. Mr and Mrs X also consider the Council neglected its duty of care by not giving them sufficient information to allow them to foster or obtain special guardianship of the children in 2011.
Family arrangement or placed by the Council?
- Mr and Mrs X consider the Council placed the children with them. The Council consider Mr and Mrs X accommodated the children under a family arrangement. I could only question the Council’s decision if there was evidence to show the Council had a major role in placing the children with Mr and Mrs X. On balance, I do not consider there is such evidence.
- The Council carried out an initial assessment but the evidence shows the Council did not assist, or have major involvement, with the placement of the children with Mr and Mrs X. Ms Y and the children had been living with Mr and Mrs X for a period of time prior to the incident in February 2011 to support Ms Y. Mr and Mrs X had accommodated the children following the incident of February 2011 without the involvement of the Council. The evidence shows they wanted them to stay with them to ensure their safety and have parental responsibility. The evidence also shows Ms Y agreed with this arrangement. So, on balance, I consider the Council’s did not assist or have major involvement in placing the children. I therefore do not consider there is fault in the Council’s decision that Mr and Mrs X were looking after the children under a family arrangement.
Advice provided to Mr and Mrs X
- The stage two independent investigation and stage three review panel found the Council did not provide sufficient advice to Mr and Mrs X about their options for obtaining parental responsibility for the children. This is fault. It was not sufficient for the Council to simply advise Mr and Mrs X to seek legal advice. It should have been able to provide advice on what options were available to Mr and Mrs X including SGOs. The Council failed to do this in February 2011 and May 2012 when Mrs X contacted it again for advice. The Council should also have explained the financial implications of the family arrangement. This failure to provide sufficient advice does not undermine the Council’s decision that this was a family arrangement as it was not involved in the placement of the children. But the lack of advice made it more difficult for Mr and Mrs X to obtain information about their options.
- On balance, I cannot say Mr and Mrs X would have obtained the SGO sooner if the Council had properly advised them on their options. Mr and Mrs X did not pursue the matter of parental responsibility between 2012 and 2017 so I cannot say, on balance, they would have pursued the SGO. Furthermore, Ms Y still had some involvement until 2016.But the failure to provide sufficient advice meant Mr and Mrs X were uncertain about the options for parental responsibility for longer than necessary. The Council has previously apologised to Mr and Mrs X for the failure to provide sufficient advice but it should also remedy the uncertainty caused to them.
- Mr and Mrs X have said officers A and B told them the children would have to go into the Council’s care if they wanted to foster or have parental responsibility for them. There is no record of this conversation with officers A or B or any other officer. I also do not consider further investigation will establish if the Council gave this advice to Mr and Mrs X as the events occurred over eight years ago. So I cannot come to any view on whether the Council is at fault here.
- In response to my draft decision Mr and Mrs X have said they received £400 of child in need payments over four weeks, not £800 over eight weeks. The Council’s records show total payment of £800 over eight weeks were approved for payment to Mr and Mrs X. However, there is no record of what payments were actually made to Mr and Mrs X. I therefore do not know if Mr and Mrs X received £400 or £800 as the Council intended. But I will not investigate the matter further. The events are nine years old and I do not consider I could reliably investigate the payments due to the passage of time.
Statutory complaint process
- The Council took over two years to consider the complaint through the statutory complaints process. While I acknowledge there is evidence to show some of the delays were agreed with Mr and Mrs X, the time taken was excessive and is likely to have caused distress to them. The Council has agreed to remedy the injustice to Mr and Mrs X by making a payment of £150 to them. This is an appropriate and proportionate remedy and in line with our guidance on remedies.
- The Council has provided evidence to show it is implementing the recommendations for service improvements made by the independent investigation. It has provided a draft of a booklet detailing information about SGOs and is producing a Friends and Family Carers policy to address the issues raised in this complaint. I am therefore satisfied it is implementing the recommendations of the independent investigation.
- There is no evidence to show the Council placed Ms Y’s children with Mr and Mrs X. The Council is at fault as it failed to provide sufficient advice to Mr and Mrs X about securing their care for their grandchildren and it delayed in considering their complaint through the children’s services statutory complaints procedure. The Council should remedy the injustice as recommended.
Investigator's decision on behalf of the Ombudsman