Decision : Upheld
Decision date : 21 Oct 2020
The Ombudsman's final decision:
Summary: Mrs X complained the Council failed to offer financial support when her grandchildren came to live with her. She says this caused her financial hardship. The Council was at fault for not providing basic information about the different ways someone can care for another person’s child and for not considering whether it could offer financial support when she asked for it. It should pay her £150 for the uncertainty caused and consider the request for financial assistance.
- Mrs X complains about the Council’s support when her grandchildren came to live with her in May 2018 and, in particular, a failure to provide financial support. She says this has caused financial hardship.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I considered:
- the information provided by Mrs X and the Council;
- relevant law and guidance, as set out below; and
- our guidance on remedies.
What I found
Relevant law and guidance
Child in need
- The law says children are “in need” if they:
- need a council to provide them with services so they can achieve or maintain a reasonable standard of health or development; or
- need a council to provide them with services to prevent them suffering significant or further harm to health or development; or
- they are disabled.
Section 17 of the Children Act 1989
Councils’ duty to provide accommodation to a child in need
- The law says councils have a duty 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; or
- 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 and care.
Case law on family and friends care arrangements – the Southwark judgement
- A private family arrangement, sometimes called an informal family arrangement, occurs when a close relative has agreed with the parent to take on the care of their child. Under these arrangements, there is no right to any financial support from any council but if the child is a ‘child in need’ a council could provide support under section 17 of the Children Act 1989. Councils do not supervise private family arrangements.
- The courts have looked at whether an arrangement for a child to live with a relative or friend was truly a private arrangement. The Court said where a council takes a major role in making arrangements for the child to be fostered it is likely to conclude it is acting under its duties to provide the child with accommodation. If the council is simply facilitating a private arrangement the Court said councils must make it clear to all parties that those holding parental responsibility for the child were responsible for the financial arrangements to care for the child. (London Borough of Southwark v D  EWCA 182)
- A special guardianship order (SGO) is a private court order for children who cannot live with their birth family. It gives the special guardian parental responsibility for the child without removing entirely the parental responsibility of the birth parent. Children cared for by a Special Guardianship Order are not ‘looked after children’ under the Children Act.
- A special guardianship allowance is a means tested allowance available to special guardians. There is statutory guidance for councils on setting the level of special guardianship allowances. In addition, case law has confirmed the starting rate for special guardianship allowances should be in line with local fostering allowance, minus an amount for child benefit and child tax credit as foster carers cannot claim these benefits.
Child arrangement order
- A child arrangement order (CAO) is a private court order (previously called a residence order) that says where a child should live and who should care for them. A CAO gives the person named as the carer “parental responsibility” for the child, which means they can make decisions for the child.
- Councils have a power to pay an allowance to carers who have a CAO but there is no duty to do so.
Child protection plan
- The law says where a council has reasonable cause to suspect a child is suffering, or is likely to suffer, significant harm, it should make enquiries to enable it to decide whether it should take any action to safeguard and promote the child’s welfare. The enquiries should include talking to the child to ascertain their wishes and feelings. There may be a need for immediate protection whilst the assessment is carried out. (Section 47 of the Children Act 1989)
- After making section 47 enquiries, where the council considers a child is at risk of significant harm, the child may become subject to a child protection plan or may be taken into care. A child who is taken into care is known as a “looked after child”.
This Council’s policy
- This Council’s guidance “Caring for somebody else’s child” says the Council may consider paying a CAO allowance to carers if the child was previously fostered or, in exceptional circumstances, where making a CAO prevents the child becoming a looked after child.
- Mrs X’s daughter, Ms M, had mental health difficulties and had been in an abusive relationship. As a result, Ms M’s two children were on a child protection plan (CPP) from August 2016. Mrs X supported Ms M and cared for her children when Ms M was suffering from poor mental health or relationship difficulties.
- Ms M formed a relationship with a new partner, Mr P, who had a history of domestic abuse and had been in prison for abusing a former partner. The Council was concerned about the risk to the children of contact with Mr P and Ms M signed a written agreement there would not be any contact between them.
- In May 2018 Ms M left the children with Mrs X. Mrs X told the Council the children were living with her in early June 2018. The children have lived with Mrs X ever since because Ms M prioritised her relationship with Mr P. Ms M had some contact with the children but this was not consistent.
- Since there was a CPP in place the Council carried out regular statutory visits to check on the welfare of the children. The record of the statutory visit in June 2018 stated that the older child had lived with Mrs X most of the time for about a year and wished to stay there. The Council did not have concerns about Mrs X’s care of the children. It carried out a child and family assessment in August 2018, which stated Mrs X was advised to seek a child arrangement order (CAO) to ensure stability for the children. Mrs X says she asked about applying for a special guardianship order (SGO) but was told a CAO would be quicker.
- At the statutory visit in September 2018, the social worker recorded he had discussed whether Mrs X would care for the children permanently and suggested she seek legal advice about making an application for a CAO. Mrs X disputes the social worker suggested she should get legal advice. The record states Mrs X agreed to seek legal advice but Mrs X disputes this.
- There was a further discussion about this at the October visit. The record states Mrs X had sought legal advice and made the court application. Mrs X did make the court application but did not seek legal advice first. She was told the Council would pay the application fee and I understand it did so.
- There was a court hearing in early December 2018. The court asked the Council to prepare a report, which was provided to the court in January 2019. The Council’s report supported Mrs X’s application for the CAO. The Court made the order in February 2019. Shortly after the order was made, the Council ended the CPP. It decided the children’s needs could be met by universal services, that is services that are generally available.
- At the statutory visit in January 2019 Mrs X asked for financial support for the care of the children. She said she wanted to reduce her working hours to care for the children. The record states the social worker agreed to speak with their manager about this. In its replies to my enquiries, the Council said there was no record that the Council considered financial support. It said: “It may be that the Social Worker did not consider that [Mrs X] would be entitled to any financial support … due to their income”.
- Although the children were on a CPP from August 2016, Council records show it thought Ms M had made progress and the children’s basic needs were being met. But in early May 2018, her new relationship caused some concern. Ms M agreed there would be no contact between Mr P and the children until the Council could assess the risks this posed. There is no suggestion the Council were considering removing the children from her care.
- Later in May 2018 Ms M asked Mrs X to care for the children, although Mrs X says she understood this was only for one night. Mrs X told the Council the children were living with her in early June. The record of the statutory visit in June 2018 states the older child had been living with Mrs X for a year by then and Mrs X had also provided regular care for the younger child. There is no record to show the Council was involved in deciding the children should live with Mrs X. Ms M left the children with Mrs X, who agreed to care for them, at least on a temporary basis. Therefore, this was a private arrangement between Ms M and Mrs X.
- In such circumstances, Ms M retained parental responsibility and the law says it is her responsibility to provide any financial support needed to enable Mrs X to care for her children. There is no right to financial support from the Council in these circumstances, although the Council has the power to provide financial support to children it has assessed as being “in need”.
- In September 2018, the Council’s social worker asked Mrs X if she could care for the children permanently. The record states Mrs X agreed to seek legal advice, although Mrs X disputes this. The social worker suggested Mrs X apply for a child arrangement order (CAO). There is no record of any discussion about other ways to secure the placement, such as a special guardianship order (SGO), although Mrs X says she repeatedly asked about special guardianship. There is no record the Council gave Mrs X any information about the different ways in which someone can look after another person’s child or that it shared its guidance “Caring for somebody else’s child” with her. I consider the Council should have given her some basic information and its failure to do so was fault.
- There is a conflict of evidence about whether the Council advised her to seek legal advice. Mrs X says she was not advised to do so but the Council’s records state she was advised and had agreed to seek legal advice. I cannot resolve this conflict.
- Mrs X did not seek legal advice and therefore was not able to make an informed choice about whether it was appropriate to apply for a CAO or a special guardianship order.
- In January 2019, Mrs X asked the Council for financial support. The record states the social worker agreed to discuss this with their manager. The Council says there is no record of any such discussion. I have seen no record that the Council gave Mrs X any advice or information about financial support in response to her request. By this point, the application for a CAO was with the court and the Council had prepared a report supporting it. It could also have considered financial support on the basis the children were assessed as being “in need” because they were still on CPPs at that point. When the CAO was made in mid February 2019, the Council could have considered a child arrangement allowance. The failure to consider the request for financial support was fault.
- I have considered whether this fault caused significant injustice to Mrs X. I understand Mrs X has claimed child benefit for the children but was not able to claim child tax credit due to her income. The Council’s policy states that an allowance will usually be made where the carer was previously a foster carer, which does not apply here, or in exceptional circumstances where a CAO prevents a child becoming a “looked after child”.
- Had Mrs X said she could not continue to care for the children, the Council would have been under a duty to consider whether other family members or friends could do so. The children may have become “looked after children” whilst it made enquiries and may have continued to be “looked after” if a family and friends carer could not be identified. But given Mrs X has been willing to care for them, they have not at any point been at significant risk of becoming “looked after” children. Therefore, it is not clear that the exceptional circumstances criteria would be satisfied in this case.
- Even if it was, the Council would carry out a means-test before agreeing to pay an allowance and it is unclear whether Mrs X would have qualified since she did not quality for child tax credit.
- In light of this, I cannot conclude Mrs X has missed out on financial support. However, she has suffered the uncertainty of not knowing whether, if her request had been properly considered, she would have received an allowance. Given that she wanted to reduce her working hours and may now have done so, the Council should now consider whether it can offer financial support.
- The Council will, within one month of the date of the final decision:
- Apologise to Mrs X for its failure to provide basic information about different ways she could care for the children and for not considering her request for financial assistance;
- Pay her £150 for the uncertainty caused; and
- Consider her request for financial assistance. This will include completing a means test to assess her income, outgoings, assets and savings, and ensure she is receiving all the benefits for the children that she is entitled to.
- I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy the injustice and prevent recurrence of the fault.
- 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.
Investigator's decision on behalf of the Ombudsman