Summary: Mr X complained about the Council’s failure to assess him for a Residence Order Allowance in 2009. The Council was at fault for failing to consider his need for a Residence Order Allowance in 2009. That caused Mr X avoidable uncertainty as he does not know whether he would have been eligible for support. The Council has offered to pay Mr X £1500. This remedies the injustice it caused him.

The complaint

1. Mr X complained about the Council’s failure to assess him for a Residence Order Allowance in 2009. He said he financially struggled after the Court awarded him a Residence Order to care for his non-biological son Y.
2. Mr X wants the Council to make a financial back payment for the time that Y has been in his care.

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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 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)
5. Mr X said he did not know about Residence Order Allowances in 2009 and only found out about these recently. As he would have been unable to complain to the Council about something he did not know about, we have exercised our discretion to investigate his complaint.
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)
7. 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

8. I read the Council’s responses to Mr X’s complaint and the Independent Investigation completed at stage two.
9. I referred to the relevant legislation including the Children Act 1989.
10. Mr 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

11. Where a council has significant concerns about a child’s safety and wellbeing, it can apply to the Court for an Interim Care Order making the child ‘looked after’. That means the council shares parental responsibility with the child’s parents and can decide where the child should live.
12. The council can accommodate the looked after child by:
1. making an arrangement with any person with parental responsibility for the child; or
2. if this is not possible, placing the child in a placement with a relative, friend or other person connected with the child, a local authority foster carer, or a children’s home.
13. The statutory guidance says councils must treat family and friends foster carers equitably to other foster carers. This includes paying them a financial allowance to care for the child. Fostering allowance cannot be paid if the foster carer is the parent of the child.

Parental responsibility

14. Parental responsibility (PR) is automatically given to the biological mother of a child. However, a father can only get parental responsibility if they:
• were married to the mother at the time of the birth;
• are registered as the child’s father;
• make a parental responsibility agreement with the child’s mother; or
• apply to the Court for a parental responsibility order.

Special Guardianship Order

15. A Special Guardianship Order is a court order that gives a carer parental responsibility for a child. Special Guardians share parental responsibility with the child’s parents, but they can exercise their parental responsibility to the exclusion of all others. A Special Guardianship Order cannot be made if the applicant is a parent of the child.

Residence Order (now called a Child Arrangements Order)

16. A Residence Order is made by the court and sets out who a child should live with. Council’s may provide financial support to a person with a Residence Order; this is called a Residence Order Allowance. The allowance is discretionary and usually means-tested. Councils have the power but are not under a duty to pay it. It is usually only paid where the child was previously fostered or on the verge of becoming a looked after child.
17. Residence Order Allowance is not payable when the person the child lives with is a parent of the child or, the husband or wife of the parent of the child.

The Council’s policy on financial assistance in 2009

18. This stated the Council may provide financial assistance where:
1. There are or were grounds for care proceedings but the Local Authority has agreed to support a relative who has not been a foster carer for a child, in applying for a Residence Order.
2. A Residence Order is made and the Local Authority has had no involvement in the case but there is a likelihood of the child becoming Looked After by the Local Authority if assistance is not given.
3. It is clear that unless financial support is provided the child/young person will become looked after and the Local Authority is supporting a plan for a child to be cared for by extended family.
4. Private fostering arrangements have been approved and necessitate financial assistance.
19. The policy states the Council would provide ongoing financial assistance until the benefit agency awarded child benefit and/or income support payments. However, “There may be exceptional circumstances where the child’s/carers’ needs merit continuing financial assistance beyond the receipt of the benefits”. The Council’s policy does not refer to a means-test, nor does it set out how it assessed the amount of support it would pay.

The statutory complaints procedure

20. There is a formal procedure, set out in law, which councils must follow to investigate complaints made by looked-after children and children in need. This procedure applies to complaints made by parents or carers of these children. The procedure involves three stages:
• Stage one - local resolution by the Council. This stage takes between ten and twenty working days.
• Stage two - an investigation by an independent investigator who will prepare a detailed report and findings to which the council must respond. The independent investigator does not line manage anyone involved in the complaint. If a complainant is still dissatisfied after stage two, they have the right to ask for their complaint to be considered at stage three. A stage two investigation for a complex case should take no more than 65 working days.
• Stage three - consideration by an independent review panel which may make further recommendations. A review panel should begin within 30 working days of the request.

Background

21. Mr X was in a relationship with Y’s mother when he was conceived but they were not married. Mr X believed he was the biological father of Y. Mr X did not stay in a relationship with Y’s mother, and Y eventually ended up living in his grandmother’s care.
22. In 2007, the Police removed Y from his grandmother’s care. The following day, the Council started care proceedings for Y and the Court made an Interim Care Order making Y a looked after child. Alongside this, the Court made a Parental Responsibility Order giving Mr X parental responsibility for Y. That Order was made on the understanding Mr X was Y’s biological father. The Council placed Y in the care of Mr X and his then partner, Ms X, whilst it assessed the most suitable long-term plan for Y’s placement.
23. As part of the Court proceedings, Mr X had a paternity test for Y. That revealed Mr X was not Y’s biological father. However, Mr X continued to care for Y whilst the Council further considered the best long-term placement for Y.
24. As part of those considerations, the Council assessed Mr and Ms X’s suitability for a Special Guardianship Order. That assessment was not successful based on concerns about the longevity of Mr and Ms X’s relationship. The Council decided long-term foster care was the best outcome for Y.
25. An independent social worker completed a further report for the Court. That recommended Y should remain in the care of Mr X through a Residence Order and a Supervision Order.
26. The Council changed its final care plan based on the independent social worker’s recommendations. In May 2009, the Court made a Residence Order alongside a twelve-month Supervision Order. At the time the Court made the Order, Mr and Ms X’s relationship had broken down and he was caring for Y alone.

Mr X’s complaint to the Council

27. Mr X complained to the Council in May 2019. He said he had recently found out about Residence Order Allowances and that the Council could have provided him with financial assistance back in 2009. He said he had asked the Council for financial support on multiple occasions after Y was placed in his care but it refused because he was Y’s father.
28. The Council did not uphold Mr X’s complaint. It said there was no evidence Mr X had asked for a financial assessment whilst Y was in his care. Mr X disagreed and asked the Council to escalate his complaint to stage two.
29. The Council allocated the complaint to the independent investigating officer (IO) on 25 June 2019. The submitted their report on 13 September 2019. The IO reviewed the case files and found that:
• After the DNA finding, Mr and Ms X continued to care for Y under the terms of a Local Authority Friends and Family Placement.
• As part of the Special Guardianship Assessment the Council had said Mr and Ms X would benefit from financial assistance.
• Ms X had complained to the Council in January 2009 about the lack of financial support for Y. The Council responded and said that as Mr X was not Y’s biological father, it could assess Mr and Ms X as foster carers. If successful, they would receive a fostering allowance for caring for Y. Mr X and Ms X turned down the fostering assessment because they did not want the intrusion of further assessment.
30. The IO upheld the complaint stating the Council had not considered an allowance despite its previous Special Guardianship Assessment stating financial support would be beneficial and the complaint by Ms X. It also noted Mr X was the sole carer at the time the Court made the Residence Order, therefore had only one income. The IO recommended the Council consider a payment to Mr X taking into consideration its procedure on allowances from 2009.
31. The Council wrote to Mr X and accepted the findings. It offered him £1500 in recognition of the ‘lost opportunity’ of an assessment for support. Mr X was unhappy with the amount offered and asked the Council to consider his complaint at stage three.
32. The stage three panel fully upheld Mr X’s complaint. It made recommendations for the Council to consider financially compensating Mr X for the loss of support.
33. The Council wrote again to Mr X in December 2019. It now rejected the stage two IO’s report and panel findings and said that neither understood the legal context of Y’s placement. It said Mr X had parental responsibility for Y through a Parental Responsibility Order and the Council had placed Y with him in a “placement with parents”. That meant Mr X did not have the right to means tested financial support as the Council “do not support ‘parents’ to care for their children when they have a Residence Order”.
34. It went onto state that despite disagreeing with the findings of the statutory investigation, the Council would not seek to reclaim the £1500 it had paid him. Mr X told me he had not received any money from the Council.

My findings

35. The Council has disregarded the IO’s and stage three panel’s findings because it considers Mr X to be Y’s parent and therefore not eligible to be assessed for financial support by a Residence Order Allowance. However, during the 2009 Court proceedings the Council:
• Completed a Special Guardianship assessment for Mr X and Ms X; and
• Offered to complete a ‘friends and family’ fostering assessment to pay Mr and Ms X a fostering allowance for Y acknowledging Mr X was not Y’s biological father.
36. These demonstrate the Council did not consider Mr X to be Y’s parent because:
• A Special Guardianship Order cannot be made if the applicant is a parent of the child.
• Fostering allowance cannot be paid if the foster carer is the parent of the child.
37. Therefore, I disagree with the Council’s rationale for not upholding the IO’s and stage three panel’s findings. Mr X would have been eligible for consideration of Residence Order Allowance in 2009. The Council failed to do so and that was fault.
38. The Council’s fault has caused Mr X avoidable uncertainty and was a missed opportunity; however, I cannot say it caused Mr X quantifiable financial loss. The Council’s policy from 2009 states that the Council only provided ongoing financial support in exceptional circumstances. It is not possible for the Ombudsman to say whether the Council would have considered Mr X’s circumstances as ‘exceptional’ at the time or during the intervening years.
39. The Council has offered Mr X £1500. That remedy is line with the Ombudsman recommendations on symbolic payments for avoidable distress caused by uncertainty and missed opportunities.

Agreed action

40. Within one month of my final decision the Council has agreed to pay Mr X £1500 for the avoidable uncertainty and lost opportunity caused by failing to consider his need for a Residence Order Allowance in 2009.

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Final decision

41. The Council was at fault for failing to assess Mr X for Residence Order Allowance in 2009. The Council has offered to pay Mr X £1500 for the missed opportunity of support that remedies the injustice caused. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman