Summary: The complainant alleged that the Council failed to regard her nephew, who she cares for, as a child in care and, if it had, the Council would have had to provide both financial and other support to her and to her nephew. We find fault in that the Council failed to recognise that it played a significant part in placing the nephew with the complainant and it did not give reasons for not exercising its discretion to investigate the complaint out of time. The Council has agreed the recommended actions to remedy the injustice caused.

The complaint

1. I refer to the complainant as Mrs X and her nephew as Child B.
2. Mrs X complained that the Council did not take sufficient protective action when Child B initially went to live with his grandparents (Mrs X’s parents) in 2011/2012 and subsequently when he moved to live with her. Mrs X considers that there were enough grounds for Child B to be taken into care by the Council and, if it had done so, Child B would have been a ‘looked after’ child and it would have had a legal responsibility to support him and her financially in caring for Child B long-term.
3. Mrs X complained to the Council. But she was told in November 2019 that, because her complaint concerned events which occurred over a year ago, the Council could not investigate it.
4. I have included the Council’s decision not to investigate Mrs X’s complaint as part of this investigation.

Back to top

What I have investigated

5. I have not investigated the complaint which Mrs X submitted on behalf of her parents. The reasons for this are explained in the final paragraph of this statement.

Back to top

The Ombudsman’s role and powers

6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. We have discretion under 26(D) to investigate matters coming to the Ombudsman’s attention during an investigation, if he considers that a member of the public, who has not complained, may have suffered an injustice as a result.
10. 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)

Back to top

How I considered this complaint

11. Mrs X has been looking after Child B since 2013. She does not have parental responsibility for her nephew. This remains with her parents who obtained a private order, a Residence Order (now called a Child Arrangement Order) for Child B in 2013. But we have decided that Mrs X has sufficient interest in Child B to make this complaint on her and his behalf.
12. Mrs X lives in another council area, Council Z. We have dealt with a complaint from her about Council Z’s failure to regard Child B as a looked after child, whereby it would have responsibility to support her financially. Council Z has said that this was a decision for this Council. We have accepted that view.
13. Some of the events date back to 2012. However, we have decided to exercise our discretion to investigate the complaint back to 2011 even though the complainant has not complained to us within 12 months of when she first realised something had gone wrong. This is because Mrs X has been caring for Child B, who has complex difficulties, and her terminally ill sister, who died in 2018, and she has also had other significant personal difficulties.
14. I have made enquiries of the Council and received written information from Mrs X. I have also spoken to her on the telephone. I issued a draft decision statement to the Council and to Mrs X and have taken into account their further comments before reaching the final decision.
15. The Council has sent the case records for Child B and copies of its children and family assessments. Mrs X is not entitled to see these records because she does not have parental responsibility. I therefore have had to limit the amount of information which I can disclose.
16. 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.

Back to top

What I found

Legal and administrative arrangements:

17. Under the Children Act 1989, a child is considered a ‘child in need’ if his/her development is likely to be impaired if services are not provided.
18. Councils must make enquiries where a child is considered to be suffering or likely to suffer significant harm. It must decide whether protective action is needed under section 47 of the Children Act 1989. If it decides the child is at risk of significant harm the council must arrange a child protection conference to consider what needs to happen to protect the child.
19. The statutory guidance - Working Together to Safeguard Children 2013 (now updated) - provided information about how councils should manage child protection cases. A council’s multi-agency Local Children Safeguarding Board sets out the local inter agency arrangements.
20. Councils have a duty, under section 20 (s20) of the Children Act 1989, to provide accommodation to any child in need in their area who requires it, as a result of:
• there being no person who has parental responsibility for the child;
• the child being lost or having been abandoned;
• the person who has been caring for the child being prevented (whether or not permanently, and for whatever reason) from providing the child with suitable accommodation or care.
21. The provision of accommodation under s20 does not remove the parent’s parental responsibility and a parent can ask for the child to be returned to their care at any time.
22. Where councils consider that a child should be removed from their parents, they can seek consent from the parents to accommodate the child under s20 of the Children Act 1989. The council will try to place with family relatives. Alternatively, the council can apply to the Family Court for an interim care order. If the Court grants this, it will allow councils to share parental responsibility with the parents.
23. Under s20, or a care order, the child becomes known as a ‘looked after’ child and the council has specific duties to safeguard and promote the child’s welfare.

Private or informal family arrangements

24. A private, or informal, family arrangement happens when a close relative has agreed with the parent to take on the care of the child.
25. This informal arrangement can be confirmed in court in a private law order called a Residence Order or now called a Child Arrangement Order. A Residence Order/ Child Arrangement Order sets out with whom the child should live, spend time or other contact arrangements and gives the holder of the Order equal parental responsibility for the child with the parents. This Order lasts until the child is 16.
26. Under this arrangement there is no right to any financial support from the council although councils have discretion to provide financial assistance if it is considered necessary.
27. The Adoption and Children Act 2002 came into force in December 2005. It provided a new legal status, Special Guardianship Orders, for non-parents who wished to care for children in a long term, secure placement.
28. A Special Guardianship Order (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. Special guardians may be entitled to a financial allowance from the council, subject to a means test and in accordance with the council’s policy. Children, subject to an SGO, are no longer looked after children. The Order lasts until the child is 18.

Family and friends foster carers

29. The statutory 2005 guidance - Family and Friends Care - states that:

“When a local authority is considering whether a child cared for by family and friends “requires accommodation”, the question at (c) will be particularly relevant: does the child appear to the authority to require accommodation because the person who has been caring for the child is prevented from providing the child with suitable accommodation or care? If it appears to the authority that the child does require accommodation, then it must provide that accommodation. Under section 20(4) the local authority may also provide accommodation for any child in their area (even though a person who has parental responsibility for the child is able to provide them with accommodation) if they consider that to do so would safeguard or promote the child's welfare. When a child in need requires to be accommodated by a council, the law says the council must first consider placing them with family or friends. The relatives must be suitable and able to provide appropriate care. If the carer becomes a family and friends foster carer, (sometimes referred to as a kinship carer), they are entitled to receive a fostering allowance and other practical support for them and the child from the council. The fostering allowance is provided to cover the cost of caring for the child”.

30. Statutory guidance says that family and friends foster carers must be paid the same fostering allowance rate as professional, unrelated foster carers (minus any professional fostering fee). The council can also deduct an amount equivalent to child benefit and child tax credit if the carer receives these.
31. As councils are responsible for arranging kinship arrangements, a formal process is followed to assess the suitability of the family member or friend. Councils should regularly visit the family and friends foster carer, draw up a placement plan for the child and hold looked after child reviews overseen by an Independent Reviewing Officer.
32. Where special guardians were previously foster carers, councils can pay them the fostering amount for a two year transitional period to give them time to adjust. The Regulations say:

“The purpose of the two year transitional provision is to enable local authorities to maintain payments to foster carers who become special guardians, at the same rate as they received when they were fostering the child. This should give the family time to adjust to their new circumstances”.

33. Failure to properly identify a family and friends foster carer can have financial and support implications for the carer and for the child too.

Legal considerations

Relevant case law

34. 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 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 Children Act duties to provide the child with accommodation.
35. If the council is just facilitating a private law arrangement, the court said councils must make clear to all parties that those holding parental responsibility for the child would continue to be responsible for the financial arrangements to care for the child (London Borough of Southwark v D [2007] EWCA Civ 182)
36. The court considered a private arrangement might allow a council, (otherwise likely to have had to provide accommodation for a child), to ‘side-step’ its s20 duty. Assessing whether an arrangement is a private family or kinship arrangement will be fact specific. However, there are two key questions;

• how much has the council done to get the child placed with the carer?; and
• has the council made it clear that the council is treating the placement as a private family arrangement and that any financial support will come from the parents?

The statutory complaints procedure

37. The Children Act 1989 sets out a statutory complaints procedure for those dissatisfied with a council’s actions. There are three stages to the process.
38. The 2006 guidance - Getting the Best from Complaints - states councils do not need to consider complaints made more than one year after the grounds to make representations arose. But this time limit can be extended if there are:

• “genuine issues of vulnerability;
• the local authority believes that there is still benefit to the complainant in proceeding;
• there is likely to be sufficient access to information or individuals involved at the time to enable an effective and fair investigation to be carried out; and
• action should be taken in light of human rights based legislation”.

The Council’s policy on family and friend carers

39. The Council issued a family and friends policy in March 2012 which stated:

“The local authority has a duty to promote informal arrangements within families to enable children to be cared for wherever possible by family members. We will support families to make their own arrangements to care for their children and to avoid the need for the children to be looked after by the local authority.

When a child cannot remain with their immediate family, and the local authority is considering the need to look after the child, we will make strenuous efforts to identify potential carers within the child’s network of family or friends who are able and willing to care for the child.

A residence order, special guardianship order or adoption order may reinforce the child’s sense of belonging and security when a successful return to the child’s birth parents is not possible.

Support from the local authority will be based on the assessed needs of the child and North Somerset will ensure that family and friends carers (whether or not they are approved foster carers) are provided with support to ensure that children do not come into care or remain in care longer than is needed”.

The Ombudsman’s Focus Report on Family Carers

40. In December 2013, the Ombudsman issued a focus report about family carers. The Ombudsman highlighted certain key issues as follows: Has the council published a clear policy on family and friends carers? Are the rates to carers being paid in accordance with statutory guidance? Are timely checks being made on family and friends carers to ensure the suitability of the placement?
41. The Ombudsman made several recommendations to promote good practice. One recommendation is that, where a council has had involvement with the child’s family before that child came to live with a family member, the council should be able to show it has explained to the carer the implications of agreeing to an informal family care arrangement, rather than becoming a family and friends foster carer.

What happened

42. Child B’s mother had difficulties in caring for him because of her disabilities. She was also terminally ill. Mrs X’s parents were very concerned about the parents’ care and they provided some support.
43. The Council also had concerns about Child B’s father.
44. The Council initially monitored Child B under the child in need arrangements. However, concerns continued about the parents’ care and Mrs X says that the Council approached her parents to ask them to look after Child B, otherwise it said that he would have to go into care and be adopted. Mrs X says the Council told her parents that Child B was very ‘adoptable’. Child B started to spend more time with Mrs X’s parents.
45. In August 2012, Child B’s name was placed on a child protection plan, under the category of neglect, because of the increased concerns about the adequacy of the parents’ care. There was recognition by the Council in the case notes that the parents could not provide safe and long-term care and alternative caring arrangements were required to protect Child B.
46. Child B’s mother came to live with her parents. Mrs X’s parents asked for the Council to initiate care proceedings and then place Child B with them. The Council decided that this was a disproportionate response given Child B was already living with his grandparents.
47. The Council agreed to pay for Child B’s nursery fees to support the grandparents in looking after Child B. These payments were stopped without telling Mrs X’s parents.
48. Mrs X says that the Council insisted her parents apply for a Prohibited Steps Order to prevent Child B’s father absconding with him. There is evidence on the Council’s files that Child B’s father could be threatening and there was a history of this in his relationship with Child B’s mother.
49. Mrs X’s parents did apply and were granted a Prohibited Steps Order.
50. Child B’s mother returned to live with Child B’s father. Child B remained living with Mrs X’s parents because it was not considered safe for her to take him.
51. Mrs X says that she started building work to extend her property so that she could accommodate Child B eventually. The plan had never been for her parents to care for Child B long-term because of their age and ill health.
52. In October 2012, Mrs X emailed the Council as follows:

“[Child B’s parents] should be encouraged to recognise (when the time comes), that we are offering a good deal for them. Their son will be well cared for and loved and kept within the family. However, we are not prepared to go into battle over this, it is a take it or leave it deal. We hope that [Child B’s parents] will sign [Child B] over to us under the Section 20 of the Children's Act, you described. We [Mr and Mrs X] are also prepared to be "audited" under the reg 24 for foster carers if that's required”.

53. Mrs X explained that they would not apply for a special guardianship order (SGO) because they were concerned about the parents’ involvement if they cared for Child B permanently. Mrs X also wanted to know that the Council would support them financially.
54. I cannot see that the Council formally responded to Mrs X’s email.
55. In March 2013, Mrs X’s parents told the Council that they did not want to apply for a Residence Order or a SGO. By this stage, Child B was living with them permanently because of the child protection concerns. The Council forewarned Mrs X’s parents that it would be seeking to end the child protection plan now that Child B was safe in their care.
56. In April 2013, the Council decided to step down the case to a child in need. This was because Child B was not living with his parents and was considered safe in the care of the grandparents.
57. Mrs X’s parents’ health deteriorated. In August 2013, at a child in need visit by the social worker, Mrs X’s parents told her that Child B was due to move to live with Mrs X. Mrs X’s parents also told the social worker that they had agreed to apply for a Residence Order. The social worker apologised to Mrs X’s parents that she had failed to tell them that the financial support for the nursery had ceased.
58. In November 2013, the Council closed Child B’s case because it was decided that Child B was safe living with his grandparents, and they had applied for a Residence Order.
59. In November 2013, Child B came to live with Mrs X because her parents could no longer cope.
60. In November 2013, the family court made a Residence Order to Mrs X’s parents. It was noted on the court order that Mrs X’s parents had made this application because they were adhering to the suggestion from the Council.
61. In 2014, Mrs X asked the Council whether Child B was regarded as a looked after child. I cannot see that she was given a formal written response to her query.
62. In 2017, Council Z enquired of the Council about Child B because there were concerns about Child B’s father’s contact with him and concerns because, by this stage, Child B’s mother was receiving palliative care. The Council told Council Z that the responsibility for the case rested with it.

The Council’s comments in response to our enquiries

63. The Council says that at no point can it be seen in the case notes that there was a request for Child B to be accommodated under s20. It says that the social workers did receive some legal advice which is confidential, but which was not in relation to the question of s20.
64. The Council cannot locate any guidance to social workers about the use of s20 at the time of the events of this complaint.
65. The Council says that the case notes do not record that any financial commitments were made to Mrs X or to her parents by the Council when they agreed to care for Child B. The only discussion was in relation to Child B’s nursery fees.
66. The Council says that Mrs X was not given any advice about the care options for Child B or what financial support might be available.
67. In respect of the statutory complaint procedure, the Council says that:

“The Children Act statutory complaints process allows councils to exercise discretion to investigate complaints out of time. The Council as per the regulations felt in this case, the amount of time elapsed it would have been a challenge to conduct a fair and thorough complaint investigation”.

Analysis

68. It is clear from the Council’s records that it had child protection concerns about Child B’s parents’ care of him, which led the Council to make him the subject of a child protection plan under the category of neglect.
69. It is also clear that the Council subsequently came to the view that Child B was not safe in his parents’ care and that it was necessary to look at alternative long-term arrangements.
70. Mrs X and her parents told the Council that they were willing to care for Child B and that they did not want him to go into the care of the Council.
71. The family suggested two ways to achieve this. Mrs X’s parents suggested the Council took care proceedings and then placed Child B in their care. And Mrs X suggested that the Council encouraged Child B’s parents to allow him to be accommodated under s20 and that she and her husband were assessed by the Council as family foster carers.
72. It is also clear that, but for Mrs X and her parents’ willingness to care for Child B, the Council would have had to accommodate him because the Council had assessed the parents’ care as unsafe and therefore it was required to take action to protect him. The statutory duty here rested with the Council, not with the family.

Has there been fault?

The Council’s child protection duties

73. The Council supported Child B’s placement with Mrs X’s parents and this placement resolved its child protection concerns. The Council suggested that Mrs X’s parents applied for a private order to ensure that they shared parental responsibility with Child B’s parents, and this would ensure Child B remained in their care.
74. In March 2013, the Council decided that child protection procedures were no longer required, and it stepped down Child B’s case to one of a ‘child in need’ in April 2013. At this time, Mrs X’s parents did not have a Residence Order so, in theory, Child B’s parents could have had Child B returned to their care, had they insisted on this, because Mrs X’s parents had no legal right to care for him.
75. In August 2013, Mrs X’s parents told the Council that they could not continue to care for Child B and that he would be living with Mrs X. They also told the Council that they would apply for a Residence Order. However, even though the Council had had child protection concerns, it decided that there was no need to assess this new arrangement for Child B.
76. In November 2013, Child B came to live with Mrs X. There was no follow up by the Council or consideration whether this was a suitable long-term placement.
77. Overall, the Council failed to consider properly its duty to protect Child B, effectively leaving the family to protect Child B. This amounts to fault.

Should the Council have regarded Mrs X as a family foster carer?

78. The 2005 statutory guidance says:

“When a local authority is considering whether a child cared for by family and friends “requires accommodation”, the question at (c) [s20] will be particularly relevant: does the child appear to the authority to require accommodation because the person who has been caring for the child is prevented from providing the child with suitable accommodation or care? If it appears to the authority that the child does require accommodation, then it must provide that accommodation”.

79. In considering this complaint, I am taking into account the statutory guidance at the time of the events of this complaint, the 2007 Southwark judgement, that the Council had a statutory duty to protect Child B and it had decided that he could not remain safely with his parents. Therefore, s20 (c) applied: “that the person who has been caring for the child being prevented (whether or not permanently, and for whatever reason) from providing the child with suitable accommodation or care”.
80. The Southwark court decision of 2007 helped to clarify how to assess whether a placement was a genuine private family placement or whether the Council’s involvement meant that it had played a significant role in placing the child with the family carers.
81. Each case is fact specific. But, on balance, my view is that the Council played a significant role in encouraging the family to care for Child B. The fact that the family was willing to do so and that they did not want Child B to be placed in care does not negate the part the Council played in this family placement, primarily to ensure that Child B was protected from harm from his parents.
82. Had there been no threat of such harm from Child B’s parents, it is unlikely the family would have had Child B live with them, although it is likely that they would have helped support Child B’s parents in the same way as many grandparents and other family members might help each other.
83. I also have no doubt that, but for the family’s involvement, the Council would have had to accommodate Child B, either by agreement with his parents or through care proceedings, or both. The Council’s case files demonstrate that there were justified concerns about Child B’s parents’ ability to care for him.
84. It is also the case that, on the evidence available, the Council failed to respond to Mrs X’s request of 2012 to be assessed as a family foster carer. It also failed to answer her query in 2014 about whether it had regarded Child B as a looked after child. It should have replied to Mrs X and explained that it did not. That might have prompted Mrs X to make a complaint sooner.
85. My view, therefore, is that the Council was not just ‘facilitating’ a private arrangement. The Council was acting under its child protection duties and it acted proactively to arrange for Child B’s removal from his parents’ care and ensure he was placed with the wider family.
86. Accordingly, the Council has been at fault by not considering its duty properly to accommodate Child B, whereby he should have been regarded as a looked after child, and at fault in not then assessing Mrs X and her husband as family foster carers, as she had requested.

What injustice has been caused?

87. But, for the faults identified, it is more likely than not that Child B would have been regarded as a looked after child, and the Council would have assessed Mrs X as a family foster carer. I cannot say what decision the Council would have reached. But, given Mrs X has cared for Child B for the past eight years, it is likely she would have been approved.
88. On that basis, the Council would have had to pay her a family fostering allowance since November 2013 when Child B came to live with her.
89. However, like many councils, it also likely that the Council would have wished for Mrs X to apply for a SGO in order to secure Child B’s placement with her as a permanent long-term arrangement.
90. It is difficult to decide when would be an appropriate cut-off point for any family fostering payments. But, on balance, I consider that Mrs X would have been paid by the Council a family fostering allowance for one year, from November 2013, while she made her SGO application and for the Court to consider it. I also consider that Mrs X would have needed a little time to allow Child B to settle and for her to decide that she would proceed to secure his placement with her long-term.
91. Mrs X has also been caused avoidable frustration and distress in trying to establish whether the Council acted in line with its statutory duties.

The Council’s decision not to investigate Mrs X’s complaint on time grounds

92. The Council had the discretion to investigate Mrs X’s complaint and the 2006 statutory guidance provides examples when councils might wish to exercise its discretion.
93. The Council told Mrs X that it could not investigate because her complaint was over 12 months old. The Council has now explained that it made this decision because it was not satisfied that it could carry out a fair and effective investigation. I recognise that it can be difficult to establish material facts when investigating historical complaints. But the Council should have explained in writing to Mrs X how it considered its discretion rather than simply telling her the complaint was out of time.
94. Mrs X therefore complained to us and we have exercised discretion to investigate. That helps to resolve this aspect of the complaint. But, nonetheless, Mrs X had to go to much time and trouble to reach this stage.

Back to top

Agreed actions

95. It is to the Council’s credit that it now accepts its actions back in 2011 to 2013 were not in accordance with its statutory duties. Therefore, it has agreed the recommended actions.
96. Where there has been avoidable distress and time and trouble, we recommend payments between £300 to £1,000 depending on the severity of the injustice, the vulnerability of those affected and whether the injustice is over a prolonged period. However, there is discretion to recommend a higher amount where the injustice is severe and/or prolonged.
97. Within two months of the date of the final statement, the Council will:

• apologise to Mrs X for the faults I have identified and calculate what it would have paid Mrs X as a family foster carer between November 2013 and November 2014 and make this payment. The Council has now agreed to pay the backdated fostering allowance at its current rate (rather than its 2013/2014 rate), and this amounts to £6,862.44;
• pay Mrs X a transitional fostering payment for two years after November 2014 in line with the statutory guidance. Again, it will pay this at its current rate and will not deduct any child benefit payments which Mrs X might have received during this period. This amounts to £13,724.88;
• make a symbolic distress payment of £1000 which includes Mrs X’s time and trouble in pursuing matters; and
• exercise its discretion to investigate historic complaints from families which approach it within twelve months of the date the final statement is published on our website, who are complaining about events up to five years ago.
• help Mrs X to make a SGO application or pay her £500 so that she can have some help in completing the application form. However, it will be for Council Z to assess Mrs X for an SGO and allowance.

Back to top

Final decision

98. I have found fault by the Council causing injustice and it has agreed to the recommended actions. I have therefore completed my investigation and am closing the complaint.

Back to top

Parts of the complaint that I did not investigate

99. Mrs X made a complaint on behalf of her parents. However, we decided that it was not appropriate to exercise our discretion to investigate this complaint because Mrs X’s parents had legal advice (albeit paid for by them) at the time.

Back to top

Investigator's decision on behalf of the Ombudsman