Summary: Mr B complains about the Council’s handling of matters relating to the care of his two grandsons and his related complaints. The Council has already apologised, made a payment to Mr B and taken steps to address the issues highlighted by the independent complaint investigation, which is an appropriate response to the injustice caused. We make no further recommendation to remedy the faults identified.

The complaint

1. The complainant, who I have called Mr B, complains about the Council’s handling of matters relating to his two grandsons’, Child X and Child Y, care and his complaints about this. Mr B complains specifically about:
1. the Council submitting a false document to the court while obtaining a Special Guardian Order (SGO) for Child X;
2. the Council’s delays in obtaining the SGO for Child X and his complaints about this process;
3. the Council improperly ending his and his wife’s roles as mainstream foster carers; and,
4. the Council’s failure to honour its commitment that he and his wife would receive the same rate of fostering allowance for Child Y as Child X.
2. Mr B says the Council’s actions have caused him and his family considerable distress and worry. Mr B also says he has lost confidence in the Council and feels Child Y has lost out financially because of the Council’s faults.

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What I have investigated

3. I have investigated points b to d of Mr B’s concerns listed above. I have set out why I am unable to investigate point a at the end of this decision statement.

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The Ombudsman’s role and powers

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

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How I considered this complaint

8. I have spoken to Mr B and considered the information he has provided.
9. I have considered information the Council has provided in response to my enquiries.
10. 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.
11. Mr B 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

Relevant legislation and guidance

Child protection and Looked after Children

12. The Children Act 1989 (the Act) and statutory guidance Working Together to Safeguard Children sets out the council’s responsibilities to safeguard children.
13. The Act says that, “where a local authority…have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.” (The Children Act 1989, section 47(1)).
14. Anyone who has concerns about a child’s welfare should make a referral to local authority children’s social care. Where a child is in need of immediate protection the council, the police or the NSPCC must act as soon as possible after the referral if removal is required. The council can apply for an Emergency Protection Order (EPO) or the police can issue a Police Protection Order (PPO) which means a police officer can remove the child immediately, who may be placed with family or foster carers while the council completes its enquiries. 
15. A Looked after Child (LAC) is any child who is subject to a care order or accommodated away from their family by a local authority. The accommodation can be voluntary or by care order. The child becomes looked after when the local authority has accommodated them for a continuous period of longer than 24 hours. (Children Act 1989, section 20)

Family and friends carers and Special Guardianships

16. Where parents cannot look after their children, some family and friends carers may decide to go to court (sometimes with the help of the council) to gain a Special Guardianship Order (SGO) or Child Arrangement Order for a child. The SGO gives the person with the order some, but not all, parental responsibility for the child. The carer would then be free of the controls placed on LACs and their carers. It allows them to decide such things as the child’s health matters and schooling. Special guardianships are intended to give a firm footing on which to build lifelong relationships between the children and their carers. Overall, a Special Guardianship Order is more secure and can lead to more support from councils than a Child Arrangement Order.
17. The Special Guardian can ask councils for support. This may include a Special Guardianship Allowance (SGA). Any support, including financial, should be reviewed at least annually, and could be removed. The starting point for calculating SGA is the council’s fostering allowance rate minus child benefit and child tax credit. These are deducted because the Guardian can claim these benefits when professional foster carers cannot. The SGA is also means tested.
18. The council where the Special Guardian lives is responsible for undertaking an assessment of need and provision of any special guardianship support services in response to that assessment. The only exception to this is where the child is a LAC before the SGO is made. (Special Guardianship Guidance and Regulations 2017, Regulation 5(31))
19. Any person who wishes to apply for a special guardianship order must give three months’ notice to the council of their intention to apply. On receipt of an application, or if the court made a request, the council must investigate and prepare a report to the court about the suitability of the applicants to be special guardians. The court may not make a special guardianship order unless it has received the report covering the suitability of the applicant. (Special Guardianship Guidance and Regulations 2017, Regulation 21)
20. In 2013, we published a focus report, ‘Family Values: Council services to family and friends who care for others’ children’. The report highlighted common faults in councils’ handling of cases where children were living with family and friends. This noted most family carers are grandparents, older siblings, or aunts and uncles. They may have their own family, work commitments, health or financial problems before taking on the care of their relative’s children. Sometimes family and friends have stepped in to care for a child out of goodwill because they are worried about the possible impact on the child. In the case of young children, often the carer has had to give up work at short notice to care for the child which in turn leads to financial problems for the family. Any extra strain on such a placement could lead to it breaking down.

Children Social Care Complaints

21. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Investigating Officer (IO) and an Independent Person (IP). The IP is responsible for overseeing the investigation. If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, we would not normally re-investigate it unless we considered that investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
22. The timescales in working days for the procedure are:

• 10 days at stage 1 (with a further 10 days for more complex complaints or additional time if an advocate is required);
• 25 days at stage 2 (with maximum extension to 65 days);
• 20 days for the complainant to request a Review Panel;
• 30 days to meet and hold the Review Panel at stage 3.
• 5 days for the Panel to issue its findings; and,
• 15 days for the local authority to respond to the findings.

Background

23. This chronology provides details of key events leading up to Mr B’s complaint to us, it does not cover everything that happened.
24. The Council became involved with Child X’s mother, Ms Z, while she was pregnant with Child X. The Council placed Child X with foster carers straight after his birth. The Council assessed and approved Mr B and his wife, Mrs C as family and friends foster carers in late March 2016 and Child X was placed in their care in early April 2016. A care order from the Court approved Child X’s placement with his grandparents at the end of April 2016.
25. Mr B and Mrs C indicated from the outset that they wished to become special guardians for Child X. The Council told Mr B and Mrs C that it would review Child X’s placement with a view to applying for a special guardian order (SGO) in 12 months’ time. The Council started the assessment process in January 2017 and prepared the paperwork for the SGO application for checking with the Council’s Legal Team in early April 2017. The report was revised and resubmitted to the Legal Team for rechecking in June 2017.
26. Between June and the end of 2017, Mr B and the Council corresponded about the level of foster carer payments he and his wife would receive. In March 2018, the Council agreed to level two foster carer payments to Mr B and Mrs C.
27. The court hearing to consider the SGO application for Child X’s care by Mr B and Mrs C took place at the end of March 2018. Child X’s parents attended the hearing and indicated they wanted contact with Child X. Child X’s mother objected to the SGO application and told the court she wanted to care for her son. The parents attendance at the court hearing was unexpected as the Council had struggled to sustain regular contact with Child X’s mother and father since his placement with his grandparents. The case was adjourned to allow the court to consider any applications made by Child X’s parents.
28. At the end of June 2018, the court relisted the case to be heard on 16 and 17 October 2018. During the intervening period, another Council (Council B) placed Child Y in Mr B and Mrs C’s care. Child Y’s placement impacted on the progress of the SGO application for Child X as the courts wished to join the cases and consider their care by Mr B and Mrs C together. The Council asked the court to consider Child X’s SGO application sooner and it granted special guardianship to Mr B and Mrs C on 16 October 2018.

Mr B’s complaints

29. Mr B first complained to the Council about its handling of the SGO application for Child X on 3 July 2018. He was unhappy with the delay in obtaining the SGO for Child X and felt Child X’s parents had forced the Council to change its position in court. Mr B was also concerned about the impact the delay had on the security of Child X’s placement with him and his wife and the risks he may be exposed to in his parents’ care.
30. The Council responded on 5 July 2018. It upheld his complaint about delay and explained the reasons it took the approach of asking for an adjournment in court. The Council reassured Mr B that Child X’s parents had not forced it to change its position, but it had to consider and assess their requests for contact.
31. Between 6 July and 26 November 2018, Mr B and the Council continued to correspond about matters relating to the delays in obtaining the SGO for Child X and the level of SGO payments Mr B and his wife would receive.
32. The Council met with Mr B on 26 November 2018 to discuss matters and agreed to provide Mr B with a further stage one complaint response to clarify any outstanding issues.
33. The Council sent Mr B a second stage one complaint response on 19 January 2019. In this, the Council provided a detailed chronology of Child X’s case to the point the SGO was granted. The Council apologised to Mr B for the impact of the delay in the SGO process. It also explained the steps it had taken to ensure the same mistakes did not reoccur. The Council told Mr B it now had a dedicated team of experienced Social Workers who worked solely on Care Orders and SGO applications. The Council reported this teams’ work had so far resulted in higher quality paperwork for the courts.
34. The Council said it hoped its meeting with Mr B on 23 January 2019 would bring his complaint to a positive conclusion. On 28 January, Mr B asked to escalate his complaint to stage two following the meeting. Mr B remained dissatisfied as he felt the Council had misled him to believe it could make the same level of foster carer payments to his and his wife for the care of Child Y.
35. In early February 2019, the Council appointed an Investigating Officer (IO) and Independent Person (IP) to investigate Mr B’s stage two complaints. The IO and IP met with Mr B on 22 March 2019 to discuss his complaints.
36. Mr B agreed his statement of complaint on 13 June 2019. The statement consisted of nine separate heads of complaint, which related to the Council’s:
1. handling of the SGO application for Child X, including delay, changing its position because of Child X’s parents and failing to identify and correct mistakes during the process;
2. superficial and partial handling of Mr B’s stage one complaint, especially about the integrity of documents presented to the courts;
3. failure to provide appropriate support and legal expertise to Mr B and Mrs C during the SGO process;
4. going back of an agreement to take over management of Child Y’s from another council and especially paying a higher level of foster carer payment in line with the level the Council pays for Child X’s care; and,
5. unfair treatment by not allowing Mr B and Mrs C to continue as mainstream foster carers when the SGO for Child X was granted.
37. The IO completed their stage two report on 24 October 2019. They upheld Mr B’s complaint about the Council’s delay in obtaining Child X’s SGO. The IO did not uphold five of Mr B’s nine complaints and made no finding in respect of one other complaint. The IO partially upheld two of Mr B’s complaints about delays or failures in responding to his correspondence and not providing all the support he and his wife needed.
38. To remedy the upheld and partially upheld complaints, the IO recommended the Council should:

• apologise to Mr B;
• provide an updates on how the changes made to the Council’s SGO procedures has improved service levels;
• update on how staff training about SGOs has been revised; and,
• make a payment of £250 to Mr B to recognise the time and trouble he had been put to when the Council’s service fell below an acceptable standard.

39. The IO and IP both noted it had taken longer than the maximum statutory timeframe of 65 working days to complete their reports. The IO said they had kept Mr B updated on their progress throughout the process.
40. The Adjudicating Officer for the Council provide its response to the IO’s findings to Mr B on 15 November 2019. The Council accepted the IO’s findings and recommendations.
41. Mr B remained dissatisfied and requested escalation of his complaint to stage three on 2 December 2019. The Council arranged for the stage three Review Panel to meet to consider Mr B’s complaints on 21 January 2020. Mr B attended the Review Panel meeting, which considered the following outstanding concerns:
1. the length of time it took to complete the stage two complaint investigation – the Panel upheld this element of Mr B’s complaint as it took 109 working days from agreed statement of complaint to the Adjudicating Officer’s response.
2. the IP had been unhappy there were children present when they and the IO met with Mr B, making it difficult to discuss his stage two complaints – the Panel did not uphold this complaint.
3. only six of the 16 Council Officers involved in Mr B’s case were interviewed by the IO – the Panel did not uphold this complaint as the IO had attempted to contact former Council Officers.
4. the integrity of a key document placed before the court, which Mr B felt was illegal – the Panel noted Mr B will receive a higher rate of SGO allowance (equal to level two fostering allowance) for Child X until he reaches the age of 18. The Panel said this was generous as most councils only pay allowances for two years following the granting of an SGO. Mr B also had opportunities to raise this issue in court and did not. The Panel did not uphold this complaint as Mr B had not been disadvantaged by the Council’s actions.
5. Mr B and Mrs C had to obtain advice from other sources because of the poor service they were offered by the Council – the Panel upheld this complaint.
6. Mr B was concerned the Council asked for an adjournment because Child X’s mother opposed the plan – the Panel did not uphold this complaint. The Panel felt the Council could have better explained to Mr B the adjournment was in Child X’s best interests.
7. request for a barrister to help with legal proceedings – the Panel did not uphold this complaint as while the Council had committed to enquiring about instructing a barrister, it had not promised to instruct one.
8. inadequate procedures and mechanisms to identify and address mistakes – the Panel upheld this complaint as quality assurance mechanisms were not as robust as they should have been at identifying and correcting mistakes when Child X’s SGO application was processed.
9. the Council had reneged on an agreement to take on responsibility for Child Y and led to them missing out on the same level of SGO allowance as Child X – the Panel spent considerable time considering this element of Mr B’s complaints. His main concern was that Child Y would receive more than £100,000 less in SGO allowance than Child X as a result. The Panel concluded the Council had unintentionally misled Mr B into believing Child Y could be placed with him and his wife as foster carers and that it could claim back any allowances and payments from the other council. This error was not identified until a Fostering Panel meeting on 13 December 2018, which was cancelled at the last minute. Child Y could not be placed with Mr B and Mrs C as mainstream foster carers as they were only approved as family and friends carers for a named child (Child X). The Panel said the Council should have explained why it could not pay the same level of allowance for Child Y as soon as it realised the error.
10. Mr B and Mrs C were unhappy they were deregistered as foster carers – the Panel upheld this complaint as it found the Council should have explained beforehand that Mr B and Mrs C’s approval as family and friend foster carers would end when they obtained the SGO for Child X.
42. The Panel made the following recommendations:

• That all IO and IPs be reminded of the complaints procedure, particular timescales.
• To amend practice guidance to advise and explain in writing that foster carers need to resign when they become Special Guardians for the child, unless they apply to become mainstream foster carers. The Council should also remind staff of this.
• The Council should consider sharing the Panel’s findings with the other council that had placed Child Y in Mr B and Mrs C’s care.
• Increase the payment to Mr B to £500 (from £250) to acknowledge the distress, time and trouble he had experienced.

43. The Council sent its response to the stage three review to Mr B on 4 February 2020. The Council accepted all of the Review Panel’s findings and shared an action plan with Mr B to show the action it would take to complete the Panel’s recommendations. The Council apologised to Mr B and offered the higher payment of £500 for the distress, time and trouble he had experienced.
44. Mr B brought his complaint to us shortly after the Council’s stage three response because he remained dissatisfied with its response.

My findings

45. The Council has undertaken a thorough investigation of Mr B’s complaints. While there are occasions when its handling of Mr B’s concerns could have been better, I am satisfied the Council has sought to follow the statutory guidance for Children’s complaints in the spirit intended.
46. From the outset, the Council has accepted it took too long to obtain the SGO for Child X and has taken steps to address this procedurally and structurally by created a dedicated team of Social Workers to work solely on SGO applications and care orders. This action, together with the apologies and payments offered to Mr B are in line with the amounts we typically recommend. Such amounts are always symbolic and not intended to directly remedy the injustice caused as it is accepted that many injustices cannot generally be remedied by payment. While there was fault caused by delay, I do not consider an additional remedy is needed.
47. The Council has also accepted it took too long to investigate Mr B’s complaints. The Council’s action in providing a second stage one complaint response is less than ideal. However, I understand the context in which this was provided was to help provide conclusive clarity to Mr B and to help draw matters to a close. I am satisfied this approach was not intended to gatekeep or prevent Mr B from accessing the next stages of the complaints process. Again, the Council has provided an appropriate remedy for the injustice caused by the delay and further remedial action is not warranted.
48. Mr B said he believed he and his wife were mainstream foster carers for the Council. The evidence from the Council shows the paperwork it sent to Mr B and Mrs C when they started caring for Child X stated they were approved as family and friends foster carers for a named child. On balance, I am satisfied the Council made Mr B and Mrs C aware of their status as family and friends foster carers rather than mainstream foster carers. I find no fault in the Council’s actions and agree with the findings made about this during the statutory complaints process.
49. Mr B said he did not know why the panel meeting to consider his and his wife’s foster carer status was cancelled at the last minute. It appears Mr B was referring to the meeting the Council’s Fostering Panel intended to hold on 13 December 2018. This is when it first realised it could not take over Child Y’s case from the other council and could not fulfil its commitment to pay Mr B and Mrs C a higher rate of fostering allowance for Child Y, as it agreed to do so for Child X.
50. As the sole purpose of this meeting was to arrange the case transfer, it is understandable the Council decided not to proceed. While the Council was at fault for not explaining this to Mr B and Mrs C at the time, it has since addressed this issue through the complaints process. It was right for the Stage Three Review Panel to focus its consideration on this element of Mr B’s complaint. The Panel went to great lengths to clarify the situation and explain what had happened to Mr B. This approach and the recommendations flowing from all three stages of the complaints process have appropriately addressed the faults identified. As a result, I do not consider any further remedy is needed.
51. I realise Mr B feels Child Y has been ‘cheated’ out of the same level of allowance as Child X. While I sympathise with Mr B’s disappointment, I have found the Council properly considered the findings and recommendations of the independent complaint investigation, and the remedies it offered were proportionate to the injustice caused by the faults it identified. Our role has never been to award compensation in the same way as the courts might.

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Final decision

52. I have completed my investigation with a finding the Council has sufficiently remedied the faults in this case.

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Parts of the complaint that I did not investigate

53. I have not investigated Mr B’s complaint that the Council submitted a false document to the court. This is because we have no discretion to investigate anything that happens in court.

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Investigator's decision on behalf of the Ombudsman