Decision : Not upheld
Decision date : 23 Dec 2020
The Ombudsman's final decision:
Summary: Mrs X complained the Council did not provide her with sufficient advice to make an informed choice about her options when she became a carer for her grandchild, Z. She said the Council then pressurised her into becoming a special guardian and had not provided enough financial support. The Council was not at fault.
- Mrs X complained the Council did not provide sufficient advice for her to make an informed choice about her options for caring for her grandchild, Z. She also complained it has not provided adequate financial support for her as a special guardian.
- She said she felt pressured into becoming a special guardian and unsupported by the Council.
The Ombudsman’s role and powers
- 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)
- 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 considered the information Mrs X provided in her written complaint and on the phone.
- I considered the Council’s responses to our enquiries.
- I considered relevant legislation, statutory guidance and caselaw including the London Borough of Southwark v D  EWCA Civ 182.
- Mrs X and the Council had the opportunity to comment on the draft decision. I considered their comments before making my final decision.
What I found
Arrangements for the care of a child
- Where those with parental responsibility are unable to care for a child, a child may be cared for by friends or family. These arrangements can be made in two ways:
- The child can be “looked after” by the council. Under the Children Act 1989, councils have a duty to accommodate children they look after. A council can identify a family member or friend who agrees to foster the child. A council meets its duty to accommodate the child and the person is deemed to be a family and friends foster carer; or
- A private family arrangement. This happens when a close relative agrees with the parent to take on the care of the child. The Council does not have a duty to provide support in these cases but may choose to do so.
Financial support for carers
- If the person becomes a family and friends foster carer, they are entitled to receive a fostering allowance and other practical support from the council for them and the child. A fostering allowance is provided to cover the cost of caring for the child.
- If the arrangement is a private family arrangement, those holding parental responsibility for the child continue to be responsible for the financial arrangements to care for the child.
Special Guardianship Orders
- Some family and friends carers decide to go to court (sometimes with the help of a council) to gain a Special Guardianship Order (SGO). An SGO granted by a court gives the Special Guardian parental responsibility for a child who is not their own. It does not entirely remove the parental responsibility of the birth parent but limits it.
Financial support for Special Guardians
- A special guardian can ask the council for support including financial support. The legal framework for this is the Special Guardianship Regulations 2005, which say financial support can be paid to special guardians to support continuing the arrangement after an SGO is made.
- In cases where the special guardian was the child’s foster carer immediately prior to the making of the SGO, the council must complete an assessment for special guardianship support services, including financial support. The financial support provided is called Special Guardianship Allowance. The regulations set out how this should be calculated and that it should have regard to the amount of fostering allowance which would have been paid if the child continued to be fostered.
- In cases where the child was not looked after by the council immediately prior to the making of the SGO, a council may provide services and financial support, but at its discretion. However, statutory guidance says special guardianship arrangements should not fail because of financial problems.
- In 2018, Mrs X lived with her husband and her daughter, Ms Y. In April, Ms Y gave birth to a child, Z. In May, Ms Y decided she could no longer care for Z and left the family home. She left Z in Mrs X’s care.
- Mrs X contacted the Council in June 2018. She said Ms Y had left Z in her care. The Council decided it needed to visit Mrs X urgently to:
- ensure Z’s needs were being met and they were being protected from harm;
- ascertain the views of Mrs X and Ms Y regarding the future care of Z.
- The Council and Mrs X had not yet agreed the financial support the Council would provide;
- Efforts needed to be made to contact Z’s father to ascertain if he had any objection to the granting of the SGO.
It adjourned the case for two weeks.
- The Council wrote to Mrs X with the outcome of its financial assessment. It decided that due to some outstanding loans, it would pay Mrs X £96.57 a week in special guardianship allowance.
- Mrs X complained to the Council. She said:
- She did not agree with the Council’s view that her caring for Z was a private arrangement;
- She did not agree with the Council’s proposed offer of special guardianship allowance and wanted the amount to be increased.
- In its response to our enquiries, the Council said the arrangement for Mrs X to care for Z was a private arrangement between Ms Y and Mrs X. It said its records showed that Ms Y left Z in Mrs X’s care and wanted Z to remain in Mrs X’s care. The records also showed that Mrs X knew Ms Y’s wishes, told the Council she wanted to obtain parental responsibility for Z and independently sought legal advice about this.
- The Council said it calculated the amount offered to Mrs X as special guardianship allowance in line with the Special Guardianship Regulations 2005.
- It said Mrs X was now being supported by the Council’s SGO Support Team, which undertook annual reviews of the support the Council offered.
- Case law has determined that where a council has taken a major role in making arrangements for the child to be cared for by the friend or relative it is likely to have been acting under its duties, under the Children Act, to provide the child with accommodation.
- The Council did not play a major role in making the arrangements. The evidence shows the decision for Mrs X to care for Z was a private family arrangement because:
- In May 2018 when Ms Y left Z in Mrs X’s care, the Council had no involvement with the family. Council records show Mrs X first contacted the Council to tell it what had happened in June.
- When the Council visited Mrs X in July, the records show Mrs X told the Council Ms Y wanted her to care for Z until she had found accommodation and could then care for Z herself.
- In the meeting in September, the records show Mrs X and Ms Y agreed that Mrs X would care for Z. The records say Mrs X was happy to care for Z on a long-term basis, that she wished to apply for an SGO and that Ms Y did not object to this.
- Mrs X independently sought legal advice about care orders in July 2018;
- The Council discussed the different legal options with Mrs X in August;
- Mrs X told the Council she wanted to apply for an SGO in September;
- The Council advised her to carefully consider the long-term implications in November, before submitting the SGO application.
There is no evidence the Council pressurised Mrs X into applying for the SGO. The Council was not at fault.
- In the period immediately prior to the making of the SGO, Z was not a looked after child and Mrs X was not a family and friends foster carer. Because of this, the Council did not have a duty under the Special Guardianship Regulations 2005 to provide Mrs X with financial support, but could choose to at its discretion. It funded her SGO application and completed a financial assessment. Based on the assessment, it offered Mrs X financial support, to ensure the arrangement would not fail because of financial problems. As this support was discretionary, it did not have to base its calculations on the current foster care rate. It considered her income and expenditure and calculated what support it felt was needed. The Council acted in line with the regulations and was not at fault.
- I have completed my investigation. The Council was not at fault.
Investigator's decision on behalf of the Ombudsman