Summary: Ms X complained the Council failed to pay her the correct fostering allowance when she was a family and friend foster carer and that it encouraged her to apply for a Child Arrangement Order. The Ombudsman found the Council paid the correct allowance and was not at fault in the advice it gave Ms X. However, we find the Council was at fault for not assisting with Ms X’s legal costs in accordance with its policy and not completing a financial assessment after she asked for support. The Council has agreed to reimburse her legal costs and complete a retrospective financial assessment. That remedies any injustice caused.

The complaint

1. Ms X complained the Council:
1. did not pay the correct financial allowance when she became a family and friend foster carer for her granddaughter, Y;
2. failed to provide financial support for new clothes and personal belongings Y needed when she moved in;
3. encouraged her to apply for a Child Arrangements Order and not a Special Guardianship Order;
4. failed to tell her about financial support for independent legal advice when she applied for a Child Arrangements Order;
5. failed to provide financial support after the Court made the Child Arrangements Order.
2. Ms X said the lack of support from the Council has meant they have struggled financially. She thinks she would have received greater support from the Council if the Court had made a Special Guardianship Order.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
5. 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)
6. 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

• I discussed the complaint with Ms X and considered the Council’s responses to her.
• I referred to the relevant legislation and statutory guidance.
• I asked the Council questions about the complaint and considered its response.
• I read Y’s case records and the Council’s policies and procedures.
• Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Looked after children

7. Under Section 20 of the Children Act 1989 a person with parental responsibility can give consent for their child to ‘be accommodated by the council’. These children are known as looked-after children. The Council can ask relatives or other suitable adults (connected persons) to foster the child.
8. When a child is looked-after, the Council holds looked-after child reviews. These are meetings to discuss and agree the permanency plan for the looked-after child.

Family and friend foster care

9. If the Council needs to place a child urgently it may not have time to approve the connected person as a foster carer before placement. In these circumstances, Regulation 24 of the Care Planning, Placement and Case Review (England) Regulations 2010 allows the Council to immediately approve the connected person as a foster carer for a maximum period of sixteen weeks. This allows time for the Council to complete the foster carer assessment and approval process.
10. Councils must treat family and friend foster carers the same as other foster carers. They must pay them the National Minimum Fostering Allowance set by Government.
11. The Council pays temporary Regulation 24 carers and approved family and friend foster carers the National Minimum Fostering Allowance- it calls these level 1 carers. The Council pays an additional skills-based fee for foster carers dependent on their training, qualifications, and the range of tasks they are willing and able to undertake- these carers are level 2-4.
12. Foster carers are not entitled to claim child benefit or working tax credit.

Child Arrangements Orders and Special Guardianship Orders

13. The Child Arrangements Order (CAO) is legislated for under section 8 of the Children Act 1989. It is an order made at court which sets out who and when a child will live or have contact with a person. The holder of the CAO shares parental responsibility with the child’s parents.
14. Families can make an application for a CAO without any involvement of the Council. Where a child is looked-after, the Council might consider a CAO as part of their permanency planning. The final decision whether to make a CAO is for the Court, and therefore outside of the Ombudsman’s jurisdiction.
15. A Special Guardianship Order is also a court order that gives a carer parental responsibility for a child. However, it is more secure than the CAO therefore may be used when the permanence plan for a child is not to return to their parent’s care.

Financial support before and after a Child Arrangements Order

16. The Council’s policy for legal support states it will provide one hour’s legal support for any application made under section 8 of the Children Act 1989 and that it will pay the court application cost.
17. Under Schedule 1 of the Children Act 1989, councils have the power, but are not under a duty, to pay the holder of the CAO an allowance towards the child’s maintenance costs and accommodation.
18. The Council does where needed offer financial support for a CAO. Its procedures state the need for ongoing support will be identified as part of the child’s permanency planning.
19. The Council completes a means-tested financial assessment before deciding whether to provide financial support. The holder of the CAO is expected to claim all entitled child benefits. The Council’s Child Arrangements Order Panel consider all requests for financial assistance based on the financial assessment and assessed needs of the child. If the Council decides to pay an allowance it may make a one-off payment or a weekly payment for an identified period. If a regular allowance is assessed as needed, the Council pays the fostering allowance minus child benefit.
20. The Council states it provides the same financial support for a SGO as it does a CAO and any allowance paid is means tested.

What happened

21. Y moved in with Ms X at the end of January 2019. That was privately arranged by Y’s family and the Council was not involved in the placement. Around the same time, the Council received a safeguarding referral about Y. It held a strategy meeting to discuss the safeguarding concerns. It decided it needed to make further enquiries into the possible risks to Y and to assess the suitability of her living with Ms X.
22. Ms X contacted the Council four days later. She asked about receiving fostering allowance whilst she cared for Y. The Council told her she was not entitled to the payment as it had not placed Y in her care. It suggested she take legal advice.
23. The Council met with Ms X and Y’s parents on the 7 February 2019. In that meeting, Y’s parents agreed to the Council making Y looked-after. Ms X told me that in that meeting, the Council discussed different options for Y’s long-term care, but did not fully explain these. The Council’s case records refer to the Council discussing a CAO and advising Ms X to get legal advice.
24. Following that meeting, the social worker, Officer A, completed a ‘viability assessment’ to check the immediate suitability of Y living with Ms X. The viability assessment said Ms X was a full-time carer for her disabled adult daughter but that would not impact on her ability to care for Y. It identified she had a monthly income of approximately £986 made up of benefits, carers allowance and her pension. The Council assessed Ms X as suitable to care for Y as of 12 February 2019 and began the family and friend foster carers assessment.
25. During a home visit, Ms X asked Officer A for ‘exceptional funding’ as she could not get legal aid for the CAO. Officer A was unclear whether it could provide funding and said Ms X could fund the CAO herself at a cost of £250.
26. The Council held Y’s first looked-after child review at the start of March 2019. In that, the Council supported the plan for a CAO because it would offer the option of Y returning to her parent’s care, if and when they were able to care for her. In that meeting, the Independent Reviewing Officer (IRO) recommended Ms X get legal advice.
27. Ms X arranged to meet a solicitor in March 2019. Ms X told me she could not attend that meeting and did not arrange a further appointment because she was worried about legal costs. In the Council’s case records Ms X is recorded as telling the Council she did visit a solicitor when she applied for the CAO.
28. Later that month, Ms X asked Officer A what funding it would provide after the CAO was in place. Officer A said she could apply for discretionary payments to potentially help in the first instance, but that she would also be entitled to claim child benefit and child tax credit.
29. The Council started to pay Ms X a fostering allowance of £132.02 a week in April 2019. It backdated those payments to February 2019. Although there were delays in starting the payments, Ms X told the May 2019 looked-after child (LAC) LAC review it had not caused an issue. The Council also provided financial support for Y to go to nursery.
30. Officer A requested additional financial support for Ms X from the Finance Panel in June 2019. Her case records show she had concerns about Ms X’s transition off foster carers allowance onto benefits after the Court made the CAO. The Finance Panel agreed to pay Ms X £20 a week for three months.
31. The Court made the CAO in June 2019. In July 2019, Ms X contacted the Council and said she was struggling financially. The Council established Ms X was not claiming all the benefits that she was entitled to and told her she needed to do that.
32. The following month, Ms X sent several emails of complaint to the Council. She said it had not paid her the correct rate when she was Y’s foster carer; that it had pushed her into a CAO and that it had failed to provide financial support after the Court made the CAO. The Council did not uphold her complaints. However, it offered to review whether she was eligible for any support as she had raised concerns about finances.
33. The Council visited Ms X the following month. It wrote to her in November 2019. It said she was not entitled to transitional funding as the CAO was a private arrangement. It said the Council could consider discretionary payments. It agreed to a one-off payment for Y’s swimming lessons.
34. Ms X remained unhappy and brought her complaint to the Ombudsman.

The Council’s response to enquiries

35. The Council said it paid Ms X the correct age-related fostering allowance for a level 1 carer at £132.02 per week. It said because of initial administration issues her payments were delayed, but it backdated the correct allowance from February 2019 until the Court made the CAO on 24 June 2019.
36. The Council said Ms X had not previously complained about the lack of financial support when Y first moved in with her, and there was no evidence in the case records that she asked the Council for support with moving in costs. However, it acknowledged that the Council could have been more proactive in this matter and asked Ms X if she needed funds for new clothes and personal belongings for Y.
37. The Council confirmed that its policy on legal costs did apply to the arrangement of the CAO as it came under section 8 of the Children Act 1989. It said it should have told Ms X that it would pay for the cost of her CAO application to court and for the costs of her initial solicitor appointment. It said it would reimburse those costs to Ms X.
38. The Council said it did not complete a financial assessment of Ms X in October 2019 after she asked for financial assistance. It said it relied on its viability assessment of Ms X and Y which did not indicate any assessed needs that would cause Ms X extreme financial hardship in caring for Y. It accepted the Council could have been more proactive in completing a financial assessment to assure itself that Ms X had sufficient funds to meet Y’s needs. The Council has offered to complete a full financial assessment of Ms X in retrospect to determine the level of discretionary support available.

My findings

The Council did not pay Ms X the correct financial allowance when she became a family and friend foster carer for Y.

39. The Council’s policy states that temporary foster carers and family and friend foster carers receive the basic weekly fostering allowance and are not entitled to the skills-based payment. The Council paid Mrs X in line with its policy and at the Government set rate. The Council was not at fault.

The Council failed to provide Ms X financial support for new clothes and personal belongings Y needed when she moved in.

40. Ms X said she had to buy Y new clothes when she first moved in. There is no evidence that Ms X asked the Council for financial support with Y’s moving in costs. However, the Council has accepted it could have been more proactive in finding out if Ms X needed financial support. Its failure to do so was fault. However, that did not cause Ms X or Y a significant injustice. In the first LAC review Ms X reported no financial concerns. The Council has offered to apologise. That remedies any injustice caused.

The Council encouraged Ms X to apply for a Child Arrangement Order.

41. Ms X said that when she met with the Council it discussed CAO and SGO but she felt pushed into the CAO.
42. The case records indicate the Council advised Ms X to get independent legal advice on three occasions, and that she saw a solicitor in March 2019 when applying for the CAO.
43. In addition, the case records show the Council discussed the suitability of the CAO during the LAC reviews. It was the preferred outcome in the permanence plan as it supported Y’s possible return to her parents care if they could meet her needs in the future. There is no evidence that Ms X was not happy with the permanence plan. The Council was not at fault.
44. However, even if I were to find fault in the actions of the Council, it would not have caused Ms X an injustice. That is because it was the Court who decided the CAO was in Y’s best interests not the Council. We cannot investigate decisions made in Court.

The Council failed to tell Ms X about financial support for independent legal advice when she applied for the Child Arrangement Order.

45. In its response to enquiries the Council said it should have paid for Ms X to receive one hour of legal advice and the application cost for the CAO. However, it failed to do that. That was fault. The Council has agreed to reimburse any legal costs in line with its policy that Ms X incurred as part of the CAO. That remedies any injustice caused.

The Council failed to provide financial support after the Court made the CAO

46. Any financial support for a CAO is discretionary and not an entitlement. The Council said it did not identify Ms X needed financial support and that she had not asked for any financial assistance. Although Ms X did not explicitly ask for a financial assessment, the case records show:
• Ms X was unemployed and reliant on state benefits.
• Ms X asked for financial assistance with Y’s nursery fees and with legal costs for the CAO.
• Ms X asked the Council what financial support she would receive after the CAO.
• Officer A identified Ms X would financially struggle after the Court made the CAO and asked the finance panel to support her transition from fostering allowance onto benefits.
47. The above were indications that Ms X may have needed financial assistance following the making of the CAO. The Council should have been more proactive in discussing how Ms X would financially manage and offered to complete a financial assessment before the Court made the CAO. Failure to do so was fault.
48. In response to enquiries the Council confirmed it did not complete a financial assessment after she asked for financial assistance in October 2019. The Council’s policy says it determines eligibility for assistance after it has completed a financial assessment. The Council was at fault. The Council has offered to complete a retrospective means-test from the start of the CAO. That remedies any injustice caused.

Agreed action

49. Within one month of my final decision the Council has agreed to:
• Apologise to Ms X for not proactively identifying whether she needed financial support when Y moved in with her and as part of the CAO permanence plan; for not providing the correct legal financial support when she applied for the CAO and for failing to complete a financial assessment after she asked for financial support.
• Complete a financial assessment to assess whether Ms X is eligible for any discretionary financial support in line with its policy.
• Ask Ms X for evidence of any legal costs incurred as part of the CAO and reimburse these in line with its policy.
• Ensure relevant staff are reminded of the Council’s policy on legal support for applicants of CAO.
• Ensure relevant staff are reminded of the Council’s ability to pay a discretionary allowance to CAO holders, and they should determine whether applicants need financial support as part of the permanence planning process.

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Final decision

50. The Council was at fault because it did not provide Ms X with legal support in line with its policy or consider her need for financial support after the Court made the Child Arrangements Order. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman