Summary: Mrs B complains the Council has failed to provide sufficient financial help to support the accommodation needs of her household, after her and her husband agreed to care for four looked-after children following the death of their parent. We uphold the complaint, finding multiple failings in Council policy towards providing such help and in how it has sought to apply it to this case. The injustice this creates is that for over two years the household has lived in overcrowded conditions with no satisfactory decision on the extent of extra accommodation needed or how this will be provided. The Council agrees to apologise, pay a significant financial remedy to the household and reconsider its decisions following a methodology set out in this statement.

The complaint

1. I have called the complainant ‘Mrs B’. She complains on her own behalf and that of her husband ‘Mr B’. In addition, she is supported in her complaint by seven children and young people who live with Mr and Mrs B and form their household. This includes four looked after children who moved in with Mr and Mrs B in February 2018. During events described by this complaint the children have made their own complaints about the Council’s actions which I detail below.
2. The complaint can be summarised that the Council has failed to provide finance for Mr and Mrs B to provide suitable living space for all the household. A second strand to the complaint is there was delay in the Council agreeing finance to enable Mr and Mrs B to buy a vehicle big enough for the family.
3. Mr and Mrs B and the children say as a result they have lived in significantly overcrowded accommodation since February 2018. Until December 2018 they also had no suitable vehicle they could all travel in. This has caused them all distress and inconvenience. Mrs B also feels frustrated in the time she has spent trying to resolve this complaint with the Council.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. Before issuing this decision statement I considered the following:

• Mrs B’s written complaint to the Ombudsman and all supporting information she has provided subsequently.
• Details of a complaint made by Mrs B considered via the statutory complaint procedure for complaints made about council children’s services (described below).
• Complaints made separately by the children in Mr and Mrs B’s household. Investigation of these merged with investigation of Mrs B’s complaint.
• Information provided by an advocate working on behalf of the children in Mr and Mrs B’s household.
• Information provided by the Council in response to written enquiries.
• Relevant law and Council policy summarised below.
• Comments and further information provided by Mrs B and the Council in response to a draft decision where I set out my provisional findings.

8. 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

Relevant Law

9. Section 17 of the Children’s Act 1989 says it is the general duty of local authorities who provide children’s services to “safeguard and promote the welfare of children within their area who are in need”. It says services provided by the authority can include providing accommodation or giving assistance in kind. That assistance “may be unconditional or subject to conditions as to the repayment of the assistance or of its value” (although the Council cannot seek repayment in cases where the recipient is in receipt of certain welfare benefits). Before providing assistance the Council should “have regard to the means of the child concerned and each of his parents”.
10. The Children’s Act defines a ‘child in need’ as one who “is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority”.

Council policy

11. The Council publishes a ‘Family and Friends Guide for Carers’ for foster carers who act as ‘family and friends’ foster carers (sometimes referred to as kinship foster carers or connected foster carers). The guide recognises that where children move in these circumstances their carers can find “they have insufficient living and sleeping space”. It says living in cramped conditions “adds to the pressures of caring for a child”. The guide says the Council has “a duty to take steps that secure, as far as reasonably practicable, sufficient accommodation within the authority’s area that meets the needs of children that are looked after, and who circumstances are such it would be consistent with their welfare for them to be provided with accommodation in the local authority’s area”. It refers to the Council’s power under Section 17 of the Children’s Act to provide financial support towards accommodation costs. The Council says it will do this where it considers this “the most appropriate way to safeguard and promote a child’s welfare”.
12. The guide says the Council will consider funding property adaptations in the following circumstances:

• where a sibling group can be placed together;
• to support a permanence solution for children so they are no longer in care; and
• to support children’s specific needs.

13. The guide also says that carers may receive “financial assistance to adapt a vehicle or contribution towards vehicle purchase”. This is “not an automatic right” but the Council will consider if carers need a “multi-seat vehicle” to transport children placed with them.
14. The guide says there is a procedure which sets out what contributions the Council may expect carers to pay towards vehicles and adaptations. It also says: “family and friends carers may also be able to apply for a loan from the local authority to assist with any such requirements”.
15. Separately the Council publishes a ‘family and friends care policy’. This refers to sources of financial support for family and friends foster carers. It does not refer specifically to support for accommodation or vehicles (except for a passage on those children living in social rented housing). But it says all payments must be “to safeguard and promote the welfare of the child” and that “a view should be taken on whether the carers need financial support based on their reasonable requirements in taking care of the child”.
16. The Council also has a policy on ‘discretionary payments and capital loans to foster carers and adopters’. This says the Council makes decisions on financial support on a case-by-case basis. It has a permanence panel which considers items such as “large financial loan requests such as property adjustments”. The panel makes recommendations which are then considered by the Assistant Director of Children’s Services. The policy says that when the panel receives proposals these should include three quotes for the work needed and details of the carer’s income and expenses. It says that loans for work should “where possible” be repaid within the same financial year. It says loans for property adaptations should be secured by way of a charge against the property.
17. The policy says the Council used to offer grants for home adaptations, but “this is no longer the case – subject to the following:” Here, the policy says the Council must ensure “suitable accommodation is available and provided for any looked after children”. It notes the Council has powers under Section 17 of the Children’s Act to provide financial support for accommodation “where it is assessed as the most appropriate way to safeguard and promote a child’s welfare”.
18. During the investigation the Council provided information that its permanence panel will only consider requests for financial support up to £10,000. A request for financial support up to £50,000 is at the discretion of its Director of Children’s and Family Services. While financial support above £50,000 must be approved by its Cabinet.

Complaint procedures

19. The Children’s Act 1989 sets out the complaint procedure where a child or young person is unhappy with the actions of Council’s children’s services. This includes complaints made on behalf of a child or young person. Regulations and guidance contained in a publication entitled “Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others” underpin the procedure.
20. The statutory procedure has three stages. Stage one gives a council chance to resolve a complaint informally. If it cannot do this, then at stage two it must appoint an independent Investigating Officer (IIO) and an Independent Person (IP), who oversees the investigation. The IIO produces a report with their findings and the IP produces a report commenting on the investigation. The Council must then respond to the IIO’s report.
21. If a complainant remains unhappy they can then ask for a stage three review. A panel made up of three people independent of the Council hears the review. The panel will consider the grounds for dissatisfaction with the outcome of the stage two investigation and may recommend the Council take further action.
22. The Council produces its own guidance in support of complaints engaging the statutory procedure described above. This says: “children making complaints about social care will be given information about advocacy support and assistance in obtaining an advocate if requested”.
23. The Council guidance also has a section on “alternative dispute resolution”. It says in some circumstances it will suspend investigation of a complaint for up to three months. For example, if a decision on a complaint may hinge on an outstanding assessment. In other cases, it will suspend investigation to seek a resolution through a process of “conciliation”. It describes this as where a complaints manager will convene a meeting between a complainant and service manager designed to resolve a complaint. Another alternative is mediation, where the Council asks an outside agency to try and mediate a satisfactory outcome to the complaint.

Chronology of events

Background

24. In July 2017 the mother of four looked-after children at the centre of this complaint passed away. I will call her ‘Mrs C’. The children are two boys and two girls. At this time, the boys were aged 15 and 9 and the girls aged 12 and 6. Immediately following Mrs C’s death the children were cared for by a family member, but they lived abroad and intended to return to their home around the end of the year.
25. Mr and Mrs B were relatives of Mrs C. They made themselves known to the Council and said they would be willing to care for the children. The Council agreed to assess their suitability and completed a viability assessment in October 2017. This found Mr and Mrs B suitable as carers for Mrs C’s children. The assessment noted Mr and Mrs B already had three children in their household; a boy and girl aged 12 and a girl aged 10. It noted also they were owner-occupiers with a three bed house.
26. Part of the assessment considered housing conditions. The assessment said living conditions would not be ideal, but there would be enough room to accommodate Mrs C’s children. It noted Mr and Mrs B planned on dividing a downstairs kitchen/diner to use half as a bedroom for the three boys to share. The girls would then share the upstairs bedrooms with the two older girls sharing one room and two younger girls sharing the other. The assessment said: “a larger property would benefit the family greatly in terms of reducing the likelihood of tensions and ensuring the children have some privacy and alone time.” It said Mr and Mrs B planned on extending their home but did not comment on the detail of the extension or how it might be funded.
27. The assessment noted Mr and Mrs B had requested various items to support the children’s placement including the need for a nine-seat car. The assessment said that request needed “to go to panel”.
28. Mrs B added comments to the assessment in December 2017. She said: “We are realistic that the accommodations could be more appropriate for everyone. We intend to seek resources for the extension by various sources including from the Local Authority”.
29. In January 2018 Mr and Mrs B’s suitability to act as foster carers for Mrs C’s children went to the Council’s fostering panel. The panel asked questions about the proposed accommodation for the children and Mrs B said she wanted to extend the family home. The minutes recorded the panel asking a Council social worker “the department’s position in relation to helping the couple financially with the house and a car”. It recorded the answer that “there has been a similar case where there was a robust support plan in place and have helped by contributing towards a house and a car, so it is definitely something that we have ask for” [sic]. The social worker’s notes said “panel were assured that the couple would be supported. e.g. finance for an extension”.
30. The panel recommended approving Mr and Mrs B as foster carers. Its decision contained advice to the Council that the case “go to the funding panel ASAP to ask for funding to help with house costs and car”. In recording the decision, the Council noted this advice.
31. In February 2018, the family court made an interim care order that Mrs C’s children could begin living with Mr and Mrs B. In April 2018 it made a full care order. While I have not seen notes of the Court hearings I understand from Mrs B that at both hearings the subject of financial support for a house extension and a vehicle was raised again. Mrs B says she stressed the need for financial help from the Council.
32. Since this time Mrs C’s children have remained living with Mr and Mrs B under foster care arrangements. Mr and Mrs B intend to apply for a special guardianship order (SGO) for the children. However, they say they will not do this until the Council has satisfactorily resolved the need for all the household to have bigger accommodation.
33. In May 2018, the Council says it first contacted Mr and Mrs B to advise on its consideration of their request for financial support towards a home extension. The Council kept no record of that decision. Investigation of this complaint through the statutory complaint procedure has suggested the request for finance went via the permanence panel. But in answer to my enquiries the Council says the case went to its Assistant Director due to the sums of money needed.

Stage One complaint

34. In June 2018, the Council recorded Mrs B being unhappy with the lack of financial help and a few days later she made a written complaint about this. At the time the family were under extra pressure as their car had recently broken down and found uneconomic to repair. The Council recorded two of Mrs C’s children expressing unhappiness also at the Council’s unwillingness to fund an extension to the home. One child described the pressure on getting ready in the morning, with only one bathroom in the property. Mrs C’s youngest son explained how hard it was for his elder brother having to share with two younger boys.
35. In her complaint Mrs B set out the family’s need for a bigger vehicle and living accommodation. She said plans prepared for an extension would cost up to £200,000 inclusive of building costs, fixtures and fittings. She said at present the family had many items in storage and this cost them around £140 per week.
36. The Council referred Mrs B’s complaint to a senior officer who compiled a report into the family’s circumstances. The officer’s report noted contact between Mrs C’s eldest child and the Council’s Children’s Rights Officer (CRO). The CRO noted the boy had no suitable space for homework or quiet study. The CRO also noted the lack of wardrobe space for all the children.
37. The officer noted that in late 2017, as part of their viability assessment, Mr and Mrs B had mentioned plans to extend their home but there had been no discussion of how this might be funded. They said it was ‘unfortunate’ the Council had not carried out a detailed assessment of accommodation needs at the time. The officer said she had asked Mrs B to provide a quote for an extension to the property for one extra bedroom and bathroom. Their report also mentioned discussion with Mrs B about the alternative of renting their property instead. It suggested Mrs B would consider a long-term rental of a bigger house as an alternative to an extension. The report did not reference Council policy, but the author said they were aware the Council had previously loaned up to £10,000 for home improvements. The report made no recommendation for what finance the Council might offer towards a home extension or other solution to meet any housing need.
38. The report also addressed the household’s need for a larger vehicle. The author said a larger vehicle of equivalent age to Mr and Mrs B’s existing car would cost between £8000 and £15000. It noted Mrs B’s preference for a specific manufacturer of vehicle and for a newer model of nine-seat vehicle. This would cost between £23000 and £31000. It noted the Council had recently funded a vehicle purchase for a family in similar circumstances. It had made that payment as a grant but said it would be subject to repayment of a percentage loaned in the event the looked after children left the household within three years. The officer recommended offering £7000 to Mr and Mrs B for a new vehicle.
39. In September 2018 the Council wrote to Mrs B saying “we do not pay grants” for home extensions. It said it would make “small loans” in “very limited circumstances” .
40. In November 2018 the Council again wrote to Mrs B saying it could not fund the quotes for a home extension she provided “for reasons discussed with you previously”. The Council said it would support her to buy a new vehicle. It offered £12000.
41. Mrs B wrote back to say the money offered for a vehicle would not buy one big enough to come with a warranty and low mileage. She asked the Council “what more is expected of us?” in respect of the requested support for a home extension.
42. In reply, the Council said it wanted to resolve Mrs B’s complaint. It said that it accepted the household needed more space but the scale of the extension she wanted was “over and above what we could reasonably agree [as] a steward of public funds”. The Council said it would consider funding an extension to provide up to two extra bedrooms and one bathroom. It asked Mrs B to provide revised quotes accordingly. The Council also wrote to Mrs C’s children recognising their concerns about their living conditions.
43. Next, managers from the Council met with Mrs B at her home. The meeting notes record the Council saying it could only provide a loan to support a home extension. It offered to involve the Council’s project design team in drawing up plans. Officers also recorded some discussion of the potential of a long-term rental arrangement for the household as an alternative, although Mrs B does not recall this.
44. Mrs B followed up that meeting by explaining in writing why her plans for extending the property were preferable. Mrs B said her plans would create three extra bedrooms, a larger downstairs living area, a study room, extra WC and utility room. She said Mrs C’s eldest son needed his own room because he had ‘learning challenges’, confirmed by a recent educational psychological report. She said the other boys were willing to share, with Mrs C’s son giving up his own room. He also had no access to his drum kit because of the need to put items in storage. This was difficult for him as it is something he has a particular interest in. Mrs B said Mrs C’s elder daughter should have her own room as she got older. She said the family needed more space downstairs to sit around a table to eat. Mrs B said they had now spent over £2000 in storage charges and £4000 on professional fees, including obtaining planning permission for the proposed extension. Mrs B also asked the Council to again reconsider its support for a vehicle.
45. In December 2018, the Council wrote twice more to Mrs B. It initially refused to increase its offer of financial support for a new vehicle. However, the Council then reconsidered and offered a payment of £22000 which Mrs B accepted. The Council says that it increased its offer after further considering the difficulties faced by the household and to ensure a long-term solution for their need. Mrs B says in purchasing a new vehicle she spent £28000, putting the Council money towards this. Around this time Mrs B also agreed the Council’s project design service could draw up alternative extension plans.
46. The Council completed and shared those plans with Mrs B around the beginning of March 2019. The plans proposed a two-storey extension on a more modest scale than those proposed by Mrs B. The plans would create a second bathroom downstairs and two extra bedrooms upstairs. Four of the upstairs bedrooms would measure over 10 metres square in size and one would be 8 metres square. There would be a separate dining room downstairs with the option to use this as a sixth bedroom instead. The Council plans show bedroom furniture and single beds in shared rooms. The Council also obtained quotes for the cost of the extension to include finishes such as painting, tiling, floor covering and so on. The quote it has provided me is £76,000. But elsewhere the Council has referred to a cost of just under £100,000 to complete the proposed extension.
47. Mrs B considered these plans would not provide enough space. She again asked the Council to agree to her plans for an extension instead. She asked the Council to now escalate her complaint to Stage 2 of the complaint procedure. The Council said it would not do this straight away as it was still considering its offer of assistance.
48. Around this time the Council again received separate correspondence from Mr and Mrs B’s children and Mrs C’s children, who liaised with its CRO. The CRO referred to the “incredibly cramped condition” of the family. She said: “there are piles of boxes and storage containers in most rooms and on hall and landing”. She noted the family used their garage as a pantry. She stressed comments made by the children including that their:

• morning routine began around 6:00am because they only had one bathroom;
• friends could not come over or sleep over due to the shortage of space;
• books and toys remained in storage because of a lack of room.

49. The CRO also included statements from the children including one from one of Mrs B’s daughters saying that they felt excluded from the Council’s consideration which focused on the needs of Mrs C’s children. And that it was taking too long to resolve their housing needs.
50. The CRO noted that while any accommodation solution for Mrs C’s children would cost a lot of money, the Council would have to expend money also to provide them accommodation elsewhere. It would be unlikely it could find a family able to accommodate all four children. The CRO noted how well Mr and Mrs B met the children’s needs.
51. In April 2019, the Council wrote to Mrs B saying it considered it had made a reasonable offer of support. It would offer a loan to fund the building of an extension and all professional costs to the value of £99,000.
52. The Council wrote to Mrs B around the same time saying if she was dissatisfied with this offer she could escalate her complaint to Stage 2 of the statutory procedure. It also explained that it would consider the children’s complaints as joined to her own. It wrote separately to the children and said that if their complaint progressed they would be involved in any future investigation.

Stage Two of the complaint

53. Mrs B responded expressing dissatisfaction her complaint had not already been passed to Stage 2.
54. The Stage 2 investigation followed with an IIO producing a report in July 2018. Their report says that as part of the investigation they met with Mr and Mrs B and all seven children at their home. The IIO report found:

• Council policies did not contain any detail about how the Council decided what was “sufficient accommodation” for looked after children. There was little evidence of the Council discussing this.
• The Council had asked for and amended its own plan. The IIO said they would not carry out an independent assessment of the plans. But they implied they considered them satisfactory to meet the household’s accommodation needs.
• The Council operated a presumption of funding home improvements through loans. But it had not explained on what terms. The Council was at fault for not having explained any loan terms to Mr and Mrs B.
• The Council had taken “an inordinate amount of time” to arrive at its offer of support.

55. The report recommended:

• The Council should meet with Mr and Mrs B within 28 days to provide them with a “full set” of figures for loan repayments and answer any questions.
• The Council should decide if it was willing to fund temporary accommodation during the extension works.

56. The Council accepted these findings. In early August 2019, it wrote to Mr and Mrs B apologising for “any lack of clarity to date” in explaining its financial offer. It said it was willing to “submit a business case to elected members for a loan of up to £100,000” subject to terms including:

• It would be charged at zero interest unless Mr and Mrs B defaulted on a payment.
• It would be repaid once the youngest of Mrs C’s children reached 18 (before the end of 2028).
• It would be secured against the house.
• The loan would become repayable “immediately” if Mr and Mrs B sold their house or Mrs C’s children were no longer in their care.
• It could not be used towards purchase of a larger home or extension.

57. The Council has confirmed it discussed details of this proposal with the lead elected Member for Children and Family Services before the end of August 2019. It then put a paper to Council Cabinet which approved the proposed loan funding.

Stage Three of the complaint

58. Mrs B did not consider the Council’s proposal adequate to meet the household’s housing needs. So she escalated her complaint to Stage 3 of the statutory procedure. She said the Stage 2 report did not recognise that since Autumn 2017 the Council had known the family home was not big enough. Mrs B’s comments reflected that she did not consider the Stage 2 report had adequately considered the needs of the children.
59. A Stage 3 hearing took place in October 2019. Mrs B arranged for an advocate to attend to represent the children. Mrs B says that she had previously asked the Council to provide an advocate, but it had declined. The children’s advocate said the family did its best to cope in the circumstances, but the overcrowding made the situation “appalling”. The Review Panel heard representations also from Mrs B and the Council.
60. The Panel concluded the Council’s offer to support the household’s accommodation needs was inadequate. It reached this view finding:

• It had not carried out a robust assessment of the children’s accommodation needs taking account of their ages, genders, any special needs, their wishes and feelings; and the impact of the introduction of four children into the household and effect on family life.
• In briefing its project design team to draw up extension plans, it had not advised them on recognised space standards, relevant guidance and the needs of the household referred to above.
• It had not provided a record of its decision or reasoning for turning down Mr and Mrs B’s request for support to build a larger extension. This included how it had considered offering funding as a grant or a loan or a mix of the two.

61. The Panel recommended the Council:

• “draw up a comprehensive report to include an assessment of the children and adult’s needs, statements of space standards and policy, options for building to meet those needs, options for financial support for the building project, and a statement of how the Council would expect the family to meet its obligations following an assessment of the circumstances. The report should explain clearly the methodology and rationale for indicating which options are preferred. Such report to be presented within 45 working days to a body authorised to approve whatever option is decided and the body to give its reasons for its decision to the family as soon as possible afterwards. In the interests of fairness and openness we consider the family should have sight of the report in advance and be invited to attend the event, although we accept that parts of it may need to be kept confidential to protect the Council’s financial and legal interests”.

62. Before the end of October 2019, the Council wrote to Mrs B giving a qualified acceptance of this recommendation. The Council said it would implement the recommendation before the end of December 2019. It said it would not give Mrs B sight of the report in advance or ask her to attend the decision making ‘event’. But she could see a draft of the report for comment.
63. Mrs B expressed dissatisfaction with the time proposed by the Council to reach its decision and her exclusion from any decision making meeting. She asked the Council to meet with her again face to face which it declined.
64. In December 2019, the Council produced a report in response to the Stage 3 recommendation. It was written by a senior officer who had been involved in responding to Mrs B since November 2018. The report set out the Council’s extension proposal in some detail. It said the bedrooms proposed would be of adequate size to accommodate single beds for all the children. The Council says it reached this view after considering guidance produced by Shelter. I have noted on its website Shelter produces guidance which sets out the law on overcrowding and how this is calculated with reference to the number of rooms in a house, room size and family composition. This guidance would suggest the household would not meet the legal definition of overcrowding based on those room dimensions quoted in paragraph 47 (as a room more than 10 metres square is considered adequate to accommodate two people).
65. It said the proposals would provide Mrs C’s oldest child with his own room. It recognised there would still be challenges, such as around Mrs B’s son wanting to play his drums. But it hoped there was enough space for the children’s friends to visit or stop over. It said the Council must take account of its resources in any decision.
66. Mrs B provided her comments on the report. She complained the Council had not spoken to any of the children before writing it. She said the family had a need for a minimum of an extra three bedrooms. Mrs B also said the Council plans did not address the loss of a garage currently used for storage, including food storage. It did not take account that as the children grew older they would want separate rooms. Her plans did take these matters into account including space for kitchen appliances.
67. In January 2020 the Council wrote to Mrs B reiterating that it considered a five bed property would adequately house the household. It has not therefore changed the offer of support to fund an extension through a loan that it first made in April 2019.

Discussions over a rental property

68. Separately, from November 2019 onward the Council began a dialogue with Mrs B about the alternative of renting accommodation. The Council said that it would pay Mrs B the deposit to secure a rental property and pay “a reasonable share” of any monthly rental. It suggested that it would expect Mrs B to rent out her home and pay towards the rent. The Council suggested its share would be “the rent equivalent for the four children and then ½ contribution to the rent equivalent for both adults”. The Council said this would also be on the understanding that Ms B did not rent a property for more than £1500 a month.
69. In December 2019, the Council modified this proposal, saying it would pay £1250 towards a rental property “for a maximum of four months”. In January 2020 it said it would consider providing some support towards utilities and council tax also. I noted further correspondence in April 2020 suggesting the Council had asked for information from Mr and Mrs B about their current income and outgoings.
70. In June 2020, the Council suggested Mrs B could find a rental property for up to £2500 a month. It calculated that she would need to contribute around £850 a month towards the rent for a property of that value. I understand this is around twice what Mr and Mrs B currently pay towards their mortgage.
71. In comments to me, the Council has qualified that its proposal is to pay four sevenths of Mrs B’s monthly rent after she contributes the rent received for renting her property (minus any mortgage and agency fee costs). The Council also says that it accepts Mrs B might not find tenants straight away for her property and so it would also pay the first month rent in full. The Council says that it considers £1500 a month a reasonable sum for which Mrs B could rent a suitably large property. It would also be willing to consider providing support for Mrs B to move and any one-off items of furniture needed.
72. The Council says it is willing to consider supporting both long-term and short-term rental options for the household. The latter would enable the building of the house extension.
73. Mrs B does not consider the Council’s offer to support rental accommodation adequate. She says a rental property of sufficient size will cost between £2500 and £4000 a month in the area where she lives. Mrs B also wants any rental agreement to potentially last beyond the eighteenth birthday of Mrs C’s youngest child, so that all the looked after children can potentially stay with the household into adulthood under ‘stay put’ arrangements (Mrs C’s eldest son now remaining with Mr and Mrs B under such an arrangement).

My findings

Council policy

74. The first matter I have considered in my findings is Council policy towards supporting looked after children and their carers with accommodation and/or transport needs. I am satisfied the Council is aware of the relevance of Section 17 of the Children’s Act as policies refer to this. This makes clear the Council’s duty to safeguard and promote the wellbeing of children in need. This can include providing financial help towards meeting their accommodation needs. The Council will have wide discretion in how it does that in practice. In most cases it can make such support repayable, but I note that it must take account of the impact of repayment on the child and their parent or carer.
75. The Council will therefore need a clear decision making framework to help officers respond to requests to meet housing needs which engage Section 17. A sequential decision process requires the Council to consider:

• Does the child in need have accommodation needs?
• How can those needs be met?
• Does the Council need to support any accommodation needs financially and if so, how should it do so?
• If it has a policy of offering loans what does this say about their purpose, repayment terms and so on?

76. I do not find existing Council policy helpful to officers in going through these questions. I can find no advice to officers on how they should assess what accommodation needs a child has. For example, when it might be considered reasonable for a child to share a bedroom or when because of reasons such as age, sex, special needs or constraints of existing accommodation they cannot be expected to do so. This in turn will inform the second question, of how such needs should be met.
77. The Council policies explain a general presumption against giving grants for home extensions. I find this reasonable as the Courts have held that local authorities can balance scarce financial resources in deciding how to discharge their duties.
78. Yet Council policy also implies it might waive this presumption in the interests of children’s welfare. But the policy gives no guidance on where such an exercise of discretion may be appropriate.
79. The Council policies also give no explanation of where it offers loans, on what terms it offers these. Nor how it will assess ability to repay loans.
80. I also find existing Council policy does not provide a clear structure of decision making. One policy refers to the role of the permanence panel in looking at “large financial loan requests”. But its involvement in this case was limited as the sums involved exceeded its remit; something not explained in policy documents. The role of the Director of Children and Family Services and elected Members in taking decisions around large request for financial support is also not explained in those documents.
81. I consider this lack of clarity in policy has undermined the Council’s ability to take a clear and coherent decision about what support it can or should offer to Mrs B. The lack of a clear policy justifies a finding of fault.

Council consideration of the size of the household’s accommodation

82. Returning to the list of questions I posed in paragraph 75, I am satisfied the Council has accepted Mrs C’s children are ‘children in need’ as defined by the Children’s Act. Further, that they have housing needs. It is not disputed that Mr and Mrs B’s house is seriously overcrowded. That comes through clearly in the statements made by all the children who are living there. Both Mr and Mrs B and their children made a considerable sacrifice to their own comfort and had to compromise their day to day activities in accepting Mrs C’s children into their home. The Council accepts that to safeguard and promote the welfare of all the children in the household it can consider providing support to help them all obtain more suitable accommodation.
83. The Council has made some effort to answer the next question about how that need can be met. However, it was fault that it did not begin to apply itself to this question until December 2018. I find its viability assessment failed to consider this point and its August 2018 review was similarly flawed. Neither attempted to address what accommodation Mrs C’s children needed, nor the impact of living conditions on the other children in the household.
84. In April 2019 the Council came to the view that to meet the needs of Mrs C’s children, Mr and Mrs B need a house with a minimum of five bedrooms, two bathrooms and an extended living area. It accepted Mrs C’s oldest son needed his own room. It considered it reasonable that the four girls in the household could share two bedrooms and the two youngest boys share a bedroom also. It provided a plan for extending Mr and Mrs B’s home that it believed would give all the children adequate space.
85. On the surface I can understand how the Council has reached this view. I think it represented good practice for the Council to consult with in-house design experts who could draw up professional plans. I also recognise the long hours individual officers put into discussions with Mrs C around what these plans may contain. But I consider the Stage 3 review board reasonably identified gaps in the Council’s justification for this scheme. Its recommended action, which the Council agreed, required the Council to further assess the children’s needs and set out any “statements of space standards”.
86. It is therefore disappointing to note the December 2019 review which followed did not address these matters. That report contains no view on what the Council considers a reasonable space requirement for a child taking account of factors such as their age, sex, any individual needs and so on. It also does not refer to what accommodation needs Mrs C’s children may have beyond turning 18. The Council has now referred to guidance on statutory overcrowding but that was not mentioned in the December 2019 report. While I accept the Council proposals would not result in statutory overcrowding it does not mean the Council has to follow those standards in setting out what it thinks is reasonable for a family. It could adopt different standards if it chooses. Further, the Stage 3 recommendation made clear the Council needed to address what the individual children may needed in terms of accommodation with reference to factors other than room size alone. I find the Council review did not do this, except for Mrs C’s eldest son.
87. It is fault therefore that the Council has still not set out an adequate rationale for its view that its extension proposals (or by implication a rented house of similar proportions) will be sufficient to address the household’s accommodation needs.

Council’s consideration of financial support

88. I have next considered if the Council should provide Mr and Mrs B with a grant to fund an extension to their property. I reiterate my view the Council is not under any duty to do this. An extension of the size needed to accommodate the whole family will cost a minimum £100,000 on the Council’s estimate or double that, in the estimation of Mr and Mrs B. Whichever is correct the sum of money involved is significant. I consider where such sums of money are involved, the Council will legitimately and reasonably want to work from the presumption that it should safeguard its resources where possible.
89. I also consider home extensions in a different category to other financial support the Council may provide such as furniture or vehicle purchases. While those items will deteriorate in value and therefore confer no long term benefit to the recipient the same cannot be said for property improvements. It is reasonable therefore, for the Council to consider how it may recover any funds it provides to improve property, over the long-term. This is most obviously achieved through making any payment for a home improvement conditional on securing a charge over the property. That charge may then be subject to loan repayment terms, but charges over property can also be given without being tied to fixed repayments but repayable when a house is sold at any given time in the future.
90. And none of this means the Council cannot give any consideration to a grant, or an element of a grant, in funding a home extension. I note here the Council’s apparent willingness to commit a six figure sum of money, over the long-term, to part fund a rental option for the family. The Council has failed to provide any rationale for why it is willing to fund one option by way of what in effect would be a series of small grants, but not consider a large grant for the other option. Its position appears inconsistent.
91. If the Council is only willing to fund a loan for a home extension then it must consider Mr and Mrs B’s ability to repay this. It is not clear to me how it has done this. For example, in August 2019 it set out a loan repayment arrangement that would appear to require Mr and Mrs B to repay at least £900 a month (in order to clear a £100000 loan by the time Mrs C’s youngest child reaches 18), without any consideration of their ability to do so.
92. I am satisfied it was these considerations which the review panel wanted the Council to grapple with when it made its recommendation in October 2019. It expected the Council to set out “options for financial support for the building project” (with “methodology and rationale”) and how it “would expect the family to meet its obligations”. But again, the December 2019 review falls short of what the Council promised. It does not set out any options or consideration of Mr and Mrs B’s ability to repay a loan. It continues to provide no clear rationale for the Council’s position.
93. As I noted above it does not help the Council has no clear policy to guide this work. But by December 2019 it had known of the need for larger accommodation for the household for over two years. It is therefore exceptionally disappointing to note the Council did not use this opportunity to find a solution. Instead it has maintained a position of putting forward a loan which I consider maybe unaffordable and may not meet the accommodation needs of the family.
94. The failure to adequately consider its offer of financial support for a home extension is therefore fault.
95. Turning to the Council’s offer to support a rental option, the Council again appears to expect Mr and Mrs B to pay significantly more for their housing than they do now, with no assessment of its affordability.
96. I also find other parts of the Council’s offer inadequate. I consider it reasonable that if exploring a long-term rental option, the Council will want Mr and Mrs B to rent their home and put any net profit towards their rental home in turn. But I am not persuaded it has considered all the costs Mr and Mrs B will have. They will have the overheads of mortgage, agency costs, buildings insurance and maintenance before they gain any profit which might also be taxable income. Also, that if the rental is for the long term their property may stand empty both at the outset of the letting and when between tenants. I do not find the Council has explored all these issues in its offer to Mr and Mrs B.
97. I am also unclear to what extent it has been thought through that long-term rental will provide stability for the children at the centre of this complaint. Private sector rentals are commonly on an assured shorthold basis of six or twelve months. Mr and Mrs B may struggle to find a landlord willing to countenance a rental period that stretches years into the future.
98. The failure to adequately consider its offer of financial support for a rental option is therefore also fault.

Other matters

99. I referenced above the missed opportunity in December 2019 for the Council to put forward a coherent plan to support Mrs B and her household with their accommodation needs. But this was only the latest in a series of poor communications with her. I consider a separate finding of fault necessary to recognise these communication failings as follows:

• By February 2018 at the latest the Council was under notice that Mrs B wanted its financial help to pay for more suitable accommodation for all the children in her household. The Council missed an opportunity at an early stage to consider and explain its policy in this area and how it would decide on financial help. Mrs B clearly received some assurance at the fostering panel of the Council’s willingness to help, raising expectations. But was given no detail of how the Council would consider her request.
• The Council’s initial consideration of financial support in May 2018 was flawed by a lack of clear record keeping or decision making. Mrs B again received no coherent explanation of Council policy or its thinking in response to her requests.
• The August 2018 review of Mrs B’s request for support, triggered by her complaint, made no reference to Council policy. The author appeared unaware the Council had discretion to pay grants towards meeting housing needs. It should have been readily apparent that a ‘small loan’ to fund a house extension would not suffice to meet needs in this case.
• Mrs B did not receive a final reply to her initial complaint until November 2018. This was nearly five months after she made it. This delay was unacceptable.
• The Council did not set out the terms for a loan until August 2019 despite having suggested this in September 2018.

100. I also consider there has been some fault in the Council’s complaint handling. Where the Council decides to suspend investigation of a complaint to try and reach a remedy, I do not consider it can do so without the consent of the complainant. I am satisfied the Council had implied consent for the approach it took in November 2018 to seek resolution of the complaint through further dialogue with Mrs B. That resulted in its proposal in March 2019 to fund an extension of its design through a loan to Mrs B. I find Mrs B then immediately expressed dissatisfaction with this. So, the case should have gone to Stage 2 at that point. But the Council did not action this as it continued to consider its position. I therefore consider a month of unnecessary delay was added to the investigation of the complaint as a result.
101. However, I do not find fault in the Council’s merging of the complaints made by Mrs B and those of the children. They are about the same underlying matter; the overcrowded living conditions. I am satisfied the Council intended the Stage 2 investigation to include the children’s voice. If that did not come across clearly enough in the subsequent Stage 2 report then I think this regrettable. But I do not consider it the result of fault by the Council.
102. Although I note that at no point were the children offered advocacy to pursue their complaint with the Council. I recognise the Council gave access to its CRO, who helped to put across their voice. But the lack of any of offer of advocacy would appear at odds with the Council complaint policy. I accept it may not have added much to the Council’s knowledge of the case and that remedy will ultimately depend on agreement between Mr and Mrs B and the Council; rather than the children in the household. But the Council should have offered advocacy if asked or explained why it did not consider it suitable despite its policy guidance.
103. Finally, I have considered the position in respect of Mrs B’s request for a vehicle which also formed part of her initial complaint. There was fault in the time taken by the Council to consider this request which it knew about from Autumn 2017. I do not find the Council responded until November 2018 and I can find no satisfactory explanation for this. The delay was fault.

Summary of findings of fault

104. In summary then I find fault in the Council:

• Not having a satisfactory policy to consider funding requests for supporting the housing needs of children in need.
• Not providing a satisfactory explanation for its position that a smaller house extension than that proposed by Mrs B will meet the household’s housing need.
• Not providing a satisfactory offer of financial support to meet the family’s need for larger accommodation. In particular, failing to demonstrate it has taken Mr and Mrs B’s ability to repay any loan or higher rental costs into account.
• Delaying and missing multiple opportunities to resolve these matters including when agreeing a recommendation arising from Mrs B pursuing a complaint via the statutory complaint procedure.
• Several times failing to communicate effectively in its consideration of this matter.
• Not referring Mrs B’s complaint to Stage 2 of the statutory complaint procedure at the appropriate time. Not offering advocacy for the children who complained.
• Delays in considering Mrs B’s request for support in obtaining a larger vehicle for the household.

Findings on injustice

105. These faults have caused Mr and Mrs B, their children and Mrs C’s children injustice. The family have lived in unsatisfactory living conditions for around 30 months. I consider that but for these faults the Council could have put forward a robust offer to meet their housing need within six months of Mrs C’s children moving in. So that is two years of unnecessary delay with accompanying distress and inconvenience of living in such conditions. In deciding what is a suitable remedy for the injustice I have considered advice published by the Ombudsman in cases of homelessness or unsatisfactory living conditions caused by disrepair. I also take account of the costs Mr and Mrs B have incurred in keeping many of their possessions and those of Mrs C’s children in storage. But I do not consider the Council need take account of Mr and Mrs B’s professional costs as I do not find at any point it has indicated its willingness to support their preferred extension proposals.
106. Mrs B has also been put to unnecessary time and trouble in pursuit of her requests for support and in making her complaint. I also consider this extends to arranging advocacy for the children to be represented at the Stage 3 review panel.
107. I consider any injustice caused by the delay in offering support to buy a vehicle, offset by the Council’s offer of support made in December 2018. I consider that offer generous, more than the amount needed to meet the family’s need for a roadworthy nine-seat vehicle. Had the Council kept to its initial offer of £12000 then I consider an amount in that ballpark likely to have been reasonable and justifiable to meet the need. I do not consider the Council was obliged to agree to Mrs B’s request that it support the purchase of a vehicle of specific manufacturer with a low mileage model. However, having done so I accept the Council may have made a longer term saving given that such a vehicle should remain roadworthy and reliable for longer.

Agreed action

108. The Council accepts these findings. It has agreed within 20 working days of this decision it:
1. Provide a written apology to Mr and Mrs B; and a separate apology to the children in the household accepting the findings of this investigation.
2. Make a payment of £6000 to recognise the failure to provide a satisfactory proposal to resolve the family’s housing need (24 months at £250 a month).
3. Make a payment of £4000 towards the storage costs incurred by Mr and Mrs B subject to Mr and Mrs B providing evidence of such costs.
4. Make a payment of £500 to recognise Mrs B’s time and trouble and any costs Mrs B incurred in arranging advocacy for the children at the Stage 3 review panel (subject to proof of such costs).
5. Commit to carrying out a further review of the household’s housing need in line with the guidance set out in paragraphs 109 to 111 below. The review should complete within three months of a decision on this complaint.
109. The review of the family’s housing need will contain the following elements:

• An assessment of how much space the family needs to meet their needs including an assessment of each child’s need for their own bedroom. As part of this work the Council should consider consulting those with expertise in housing standards; for example, local environmental health officers. But it should not restrict consideration to that of room size alone.
• A consideration of the cost of funding an extension on Mr and Mrs B’s home to meet these needs. This should also include consideration of the cost of any temporary accommodation needed during building works.
• A consideration of the Council’s willingness to consider a grant to fund or part-fund the housing extension.
• A consideration of the Council’s willingness to consider a loan to fund or part-fund the housing extension, taking account of the affordability of any proposals it puts forward.
• A consideration of the Council’s willingness to fund a larger extension than that it considers suitable to meet needs if Mr and Mrs B are willing to contribute additional funds to the cost.
• A consideration of the viability of supporting a long-term rental option for Mr and Mrs B as an alternative to a home extension. This should consider the costs involved to Mr and Mrs B of renting a home of suitable size; the feasibility of long term-rental and its affordability and a realistic assessment of any profit they may derive from renting their own home which they may contribute to their rent.
• A consideration of whether the Council may itself purchase a home of suitable size for rental by the family at an affordable rent, which may result in less net cost to the Council over the long-term than other options.

110. The review will also be carried out the following way:

• The Council may commission its own senior officer to author the review but they should be someone with no previous involvement in the events covered by the complaint.
• The review’s author should offer to meet with Mr and Mrs B (an online meeting may be acceptable given social distancing) at an early stage to ascertain matters relevant to some of the considerations I have outlined in paragraph 109. They should also offer to speak to each of the children as part of this work.
• Mrs B should receive a copy of the review and be invited to comment before the Council considers it.
• The review should be considered at Director or Cabinet level and in consultation with the senior Councillor with responsibility for looked after children.
• Once the review has been completed the Council will formalise in writing how it proposes to support the household to move to larger accommodation.

111. In the event Mrs B is dissatisfied with proposals put forward by the Council at the end of the review process described in paragraph 110 then the Council should consider her comments on their merits. But if it matters are at an impasse, it should signpost Mrs B back to this office without reference to the statutory complaint procedure in order for us to give the matter further consideration.
112. I also want the Council to consider what wider lessons it can learn from this complaint. Within three months of a decision of this complaint it will:

• Complete a review of its existing policies referred to in this statement which refer to the Council providing financial support to meet the housing needs of children in need. The Council should provide clearer advice to its officers on how they should consider such requests with reference to housing need; when it will consider grants or loans; terms on which it will offer loans and which decision making body or individual within the Council approves such requests.
• Decide how it will communicate policy changes to relevant staff. For example, through training sessions, staff briefings or other approach as it considers appropriate.

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Final decision

113. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mrs B and her household. The Council has agreed to take action that I consider will provide a fair remedy for the injustice they have been caused. Consequently, I can now complete my investigation satisfied with the Council’s response.

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Investigator's decision on behalf of the Ombudsman