Wirral Metropolitan Borough Council (19 010 155)

Category : Children's care services > Friends and family carers

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.

The complaint

  1. 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.
  2. She said she felt pressured into becoming a special guardian and unsupported by the Council.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I considered the information Mrs X provided in her written complaint and on the phone.
  2. I considered the Council’s responses to our enquiries.
  3. I considered relevant legislation, statutory guidance and caselaw including the London Borough of Southwark v D [2007] EWCA Civ 182.
  4. Mrs X and the Council had the opportunity to comment on the draft decision. I considered their comments before making my final decision.

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What I found

Background information

Arrangements for the care of a child

  1. 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.
  2. The courts have considered the question of whether arrangements for a child to live with a relative or friend are truly a private arrangement. In a key case, the Court said 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.

Financial support for carers

  1. 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.
  2. 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

  1. 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

  1. 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.
  2. 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.
  3. 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.

What happened

  1. 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.
  2. 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.
  3. The Council visited Mrs X. It found Z was being well cared for. It concluded Mrs X was meeting Z’s needs and protecting them from harm. Mrs X said Ms Y had told her she did not want the baby. The Council said it would try to contact Ms Y to discuss the situation.
  4. The Council met with Ms Y, who told the Council she wanted to see Z. The Council encouraged Mrs X to allow Ms Y to come home and spend time with Z.
  5. The Council visited again in July. It found Z’s needs continued to be met by Mrs X. Mrs X told the Council Ms Y had made no effort to see Z. She said Ms Y had asked her to care for Z until she had secured her own accommodation and could care for Z herself. The Council advised Mrs X to seek legal advice about care orders, which Mrs X did during July.
  6. In August, the Council visited Mrs X again. Mrs X said Ms Y had not visited Z since she left her in her care. The Council said Ms Y was not responding to its attempts to work with her. The records show Mrs X told the Council she wanted to obtain parental responsibility for Z. The Council discussed the options with Mrs X. The records say Mrs X told the Council she would need financial support to obtain a court order for Z but did not wish for any ongoing financial support or involvement from social care. The Council told Mrs X it would support her wish to care for Z in the longer term.
  7. In September 2018, the Council met with Mrs X and Ms Y. Ms Y told the Council she was not able to care for Z at the current time. She said she had agreed with Mrs X that Z would remain with Mrs X and Ms Y would continue to see Z when she visited the family home. Mrs X told the Council she was happy to care for Z on a long-term basis and that she wished to apply for a Special Guardianship Order (SGO). Ms Y said she did not object to this.
  8. In November, Mrs X told the Council that caring for Z was putting a strain on her marriage. The Council advised her to think carefully about the decision to proceed with the SGO as it was a lifelong commitment not to be taken lightly.
  9. In December, the Council formally agreed to support Mrs X to apply for an SGO. In January 2019 it agreed to fund the application.
  10. In July 2019, the Council visited Mrs X and her husband to complete a financial assessment. It gathered information on their weekly income and expenditure.
  11. The first SGO court hearing was at the end of July. The court did not grant the SGO because:
    • 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.

  1. 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.
  2. 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.
  3. During August and September, the court agreed to two further adjournments to give the Council and Mrs X more time to reach agreement over the level of Council financial support.
  4. The Council responded to Mrs X’s complaint. It said it could not investigate her complaint about Z’s legal status as there were active court proceedings. It advised her to seek legal advice and raise the matter in court if she wished to do so. It said special guardianship allowance was discretionary and special guardians could claim benefits in the same way parents could. It said its financial assessment had identified a shortfall of £96.57 in their finances and this was how it had calculated the offer of special guardianship allowance. It said it had also agreed to fund the SGO court costs.
  5. In October, the court granted Mrs X the SGO.
  6. Mrs X remained unhappy and brought her complaint to us.

My investigation

  1. 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.
  2. The Council said it calculated the amount offered to Mrs X as special guardianship allowance in line with the Special Guardianship Regulations 2005.
  3. 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.

Analysis

  1. 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.
  2. 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.
  3. Although the Council was present during some of the discussions between Mrs X and Ms Y, it did not play a major role in the arrangements. The initial decision was made by Ms Y and Mrs X and subsequent discussions between them determined Z’s long term care arrangements.
  4. The Council did not place Z in Mrs X’s care, so did not have a legal duty to support Mrs X as a family and friends foster carer. It worked appropriately with Mrs X and Ms Y to facilitate discussion about Z’s long-term care and provided Mrs X with advice. The Council provided Mrs X with appropriate support and was not at fault.
  5. Mrs X says the Council pressurised her into becoming a special guardian for Z, but the records do not support this. The records show:
    • 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.

  1. 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.

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Final decision

  1. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman

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