Summary: Miss X complained the Council failed to properly consider financial support when she agreed to take care of her grandson in 2012. This included financial support leading up to the Residence Order being granted and the Residence Order Allowance following on from this. The Ombudsman found the Council was not at fault for failing to provide a Residence Order Allowance to Miss X. However we found the Council failed to consider Y a looked after child causing Miss X to miss out on financial assistance as a Family and Friend Foster Carer. The Council agreed to pay Miss X the backdated financial assistance she is entitled to.

The complaint

1. Miss X complained the Council failed to properly consider financial support when she agreed to take care of her grandson, Y, in 2012. This included financial support leading up to the Residence Order being granted and the Residence Order Allowance following on from this.
2. Miss X says this has resulted in her not receiving the financial support she was entitled to for six years.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The Ombudsman cannot investigate late complaints unless she decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
6. I decided to use my powers to investigate this complaint from 2012 when Miss X’s grandson came to live with Miss X. This is because Miss X only found out about Residence Order Allowance in 2018 when she successfully applied for financial support. As she would have been unable to complain to the Council about something she did not know about, we have exercised our discretion to investigate this complaint.
7. 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

8. I have considered all the information Miss X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Miss X provided comments on the draft decision which I considered. The Council agreed to the recommendations in the draft decision.

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What I found

10. The Children Act 1989 sets out the duties of councils towards children. Councils have a duty to safeguard and promote the welfare of children who are in need and, so far as is consistent with that duty, to promote the upbringing of such children by their families. Councils can fulfil this role by providing services, which may include accommodation, support in kind and, if necessary, cash payments.

Family and Friend Foster Care

11. When a council has concerns about parents’ ability to care for their children, it can ask relatives or other suitable adults (a connected person) to foster the children. These children are known as looked after children. The child’s care is supervised by the Council and the Council has a duty to provide financial support.
12. The statutory guidance says the Council must treat family and friends foster carer equitably to other foster carers. This includes paying them a financial allowance to care for the child.
13. If a family and friends foster carer has been caring for a child for more than sixteen weeks, the National Standards Minimum Standards for Fostering apply. These say that if foster carers receive any additional fees, the family and friend carer should also be entitled to receive these.
14. Foster carers are not entitled to apply for child benefit or child tax credits.

Residence Orders and Residence Order Allowance

15. A Residence Order is an order made by the court which sets out who a child should reside with. The court considers the best interests of the child in reaching a decision on where they should live and may consider information from social workers. The Residence Order gives the applicant parental responsibility for the child equally with the birth parents.
16. Under schedule 1 of the Children Act 1989, Councils have discretion to pay an allowance to support people subject to an order who are struggling financially. This is a power but not a duty.
17. If a council agrees to pay an allowance, it is means tested and should be reviewed each year. The allowance would be paid minus any state benefits for the child such as child benefit and child tax credit.
18. In 2014 Residence Orders were replaced by Child Arrangement Orders.

The Council’s policy on Residence Order Allowance

19. The Council’s policy says that Residence Order Allowances are not a right but are available to an applicant in exceptional circumstances in order to prevent a carer suffering unreasonable hardship as a result of offering a home to a child.
20. The Council’s policy says financial support is only available when the following criteria are met:
• A Residence Order is in the best interest of child.
• A Residence Order prevents the need for a looked after child or a child stops being looked after.
• A Residence Order cannot be achieved without financial assistance.
• No other source of financial support is available.
• The level of support requested is the minimum required to cover any need.

The Council’s corporate complaints procedure

21. The Council’s complaint procedure involves three stages:
• Stage 1 – The Council should respond to the complaint within 15 working days or provide an explanation and target date given if it will take longer.
• Stage 2 – A senior manage at the Council should respond within 15 working days or provide an explanation and target date given if it will take longer.
• Stage 3 - Escalation to stage three is at the discretion of the Senior Complaints Officer. At this stage, the Council refers a complaint for consideration by an Appeals and Complaints Committee. The Council provides no timescales in its policy for consideration at stage 3.

Ombudsman guidance on remedies

22. The Ombudsman has published guidance on remedies. It notes we can recommend a financial payment as a symbolic payment to acknowledge the distress or difficulties complainants have been put through. It states our remedies are not intended to be punitive and we do not award compensation in the way a court might.
23. The Ombudsman can recommend a remedy for distress. However, the guidance is clear that it must be avoidable distress arising from fault. Our recommendation for a remedy needs to reflect all the circumstances, including the severity of the distress. The guidance sets out that a remedy payment for distress is often a moderate sum of between £100 and £300.

Background

24. In July 2012, the Council recommended that Y should stay with Miss X following an incident of domestic abuse between Y’s biological parents. The Council did not begin a child protection enquiry and Y spent time living with both Miss X and his mother from this point.
25. Y and his mother had moved in with Miss X by the end of August 2012. Miss X said that she looked after Y in the evenings and Y’s mother looked after him during the day.
26. On 24 September 2012, the Council put Y under a child protection plan following a domestic dispute between his parents and concerns about his mother’s lifestyle. Y’s mother moved out of Miss X’s house and the Council imposed conditions on Y’s care with the Council’s social worker arranging for Miss X to care for Y. The Council did not make Y a looked after child. However, the Council has since said that it should have considered Y a looked after child from 24 September 2012.
27. Miss X attended child protection review (CPR) meetings for Y. In the November 2012 CPR meeting, the Council’s social worker said Miss X was “struggling financially”. In the January 2013 CPR meeting Miss X said she was currently off work sick and that Y’s parents were not contributing to the cost of caring for Y. The Council told Y’s mother that she should inform the relevant agencies that Y was no longer in her care to enable Miss X to claim these benefits.
28. In February 2013, the Council provided Miss X with a list of solicitors who specialise in childcare law.
29. In the March 2013 CPR meeting, Miss X confirmed she was able claim child tax credits for Y and was currently awaiting the forms to claim Child Benefit.
30. The Council completed an assessment of Miss X in April 2013 in respect of her suitability to be the longer term carer for Y. The Council confirmed:
• Y had lots of age-appropriate toys at Miss X’s home and Y was always well dressed in age-appropriate and clean clothing.
• Miss X had age-appropriate safety equipment in place through the home.
• Miss X is hoping to take Y on holiday abroad later in the year.
• Miss X ensured Y’s medical and dental needs were addressed.
• Miss X had contacted a solicitor with regards to gaining a Residence Order for Y.
• Miss X had managed financially but has been struggling. Once Miss X received Y’s child benefits she would be able to manage comfortably.
• Miss X’s sister also provides financial help when required.
31. Miss X applied for a Residence Order in July 2013 which was granted by a Court in August 2013.

What happened

32. On 25 July 2018, Miss X contacted the Council to request financial assistance with Y. Miss X said the Council did not previously make her aware of the option to apply for Residence Order Allowance and only became aware that she could apply when talking to people in a similar situation to herself.
33. The Council provided Miss X with a financial assessment form which Miss X completed requesting backdated payments to 2012.
34. The Council accepted Miss X’s request for a Child Arrangement Allowance at £38.43 per week starting from 6 August 2018. The Council rejected backdating financial support prior to this date.
35. Miss X raised a complaint on 19 September 2018 about the Council rejecting her application for backdated financial support. Miss X advised her financial situation was the same now as it was in 2012.
36. In January 2019, Miss X brought her complaint to the Ombudsman. The Ombudsman advised Miss X to complete the complaints process and redirected her back to the Council.
37. The Council provided its Stage 1 response on 4 February 2019. The Council said:
• The Council’s assessment sent to the Court when the Residence Order was granted said that Miss X could manage her finances comfortably.
• Miss X did not dispute this assessment either with the Council or in court.
• There was no evidence of a failure in practice at the Council.
38. Miss X requested an escalation to Stage 2 of the complaint process on 26 March 2019. Miss X said the Council did not make her aware of the availability of financial support and disputed the assessment as she did not receive any financial support from her family.
39. The Council initially said it would provide its Stage 2 response by 24 April 2019. It then extended that date twice until the 31 May 2019.
40. The Council sent its Stage 2 response to Miss X on 2 July 2019. The Council partially upheld Miss X’ complaint. The Council said:
• Y should have been considered a looked after child from 2 December 2012. This would have made Miss X a family and friend foster carer which would have resulted in financial support for Miss X.
• The Council offered Miss X £5379.60 for the lack of financial support from 2 December 2012 through to the Residence Order on 28 August 2013.
• The decision about financial support following the Residence Order would have been a matter for the court and the Council would not offer backdated financial support from 28 August 2013.
• Had Miss X been a family and friend foster carer prior to the Residence Order this may have prompted questions about Residence Order Allowance.
41. Miss X obtained legal advice and her solicitor contacted the Council on 24 September 2019 to request an escalation to Stage 3 of the complaints process. The Council advised it would send the Stage 3 response within 15 working days.
42. On 22 November 2019, the Council provided a response. The Council said:
• It discussed finances with Miss X before sending the assessment for the Residence Order to the Court.
• The Court granted a Residence Order with the assessment provided by the Council which would have been available to Miss X.
• The decision over financial support was a legal one made by the Court so the Council would not act on this and not escalate the complaint to Stage 3.
43. Miss X brought her complaint back to the Ombudsman.

Analysis

Looked After Child

44. The Council has already identified it was at fault for not considering Y a looked after child as it played a significant role in arranging care for Y. This fault caused an injustice to Miss X as she did not receive the financial support a family and friend foster carer was entitled to.
45. In the Stage 2 response, the Council offered a payment of £5379.60 for 40 weeks missed financial assistance up to 28 August 2013. This includes an additional two weeks for birthdays and religious ceremony celebrations.
46. In the Council’s response to enquiries from the Ombudsman, it has acknowledged that it should have considered Y a looked after child following the child protection conference on 24 September 2012.
47. Therefore, the Council should have calculated the financial assistance from 24 September 2012.
48. The Council should pay Miss X £6724.50 for the missed financial support from 24 September 2012 to 28 August 2013 as Y’s connected person foster carer.

Residence Order Allowance

49. Any financial support for a Residence Order Allowance is discretionary and not an entitlement. The Council’s says it will consider financial assistance if a Residence Order cannot be achieved without financial assistance and no other sources of financial support are available, amongst other factors.
50. In the Council’s stage 2 response it said that if it had identified Y as a looked after child, it would have been more likely it would have considered Miss X for a Residence Order Allowance. The failure to identify Y as a looked after child and consider Miss X for a Residence Order Allowance was fault.
51. While the Council was at fault and has accepted to pay Miss X a Residence Order Allowance in 2018, we cannot say that if the Council had completed an assessment for Residence Order Allowance in 2013 that Miss X would have been eligible for support.
52. This is because the Council has considered the information and said there is no evidence of financial hardship. The 2013 assessment said that Miss X was applying for child tax credits and child benefits for Y, her home was comfortably furnished with age-appropriate toys, safety equipment and clothes for Y and Miss X’s sister could provide financial help when required.
53. As such, the Council has decided not to make retrospective payments to Miss X for the Residence Order Allowance. It has applied its policy when making that decision. This is a decision the Council is entitled to make. I would not find fault with the Council for refusing to backdate Miss X’s Residence Order Allowance before 2018.

Council complaints process

54. Miss X complained to the Council on 19 September 2018. The Council should have provided a response by 10 October 2018 but failed to respond until 4 February 2019. This delay was fault by the Council.
55. Miss X requested escalation to Stage 2 on 26 March 2019. The Council said it would respond by 24 April 2019. The Council failed to provide an update until 7 May 2019 advising the response would be delayed. The Council failed to meet its revised promised deadline of 31 May 2019 and only provided its response on 2 July 2019. This further delay is fault.
56. Miss X requested an escalation to stage 3 on 24 September 2019. The Council said it would provide a response by 21 October 2019. The Council provided its response on 22 November 2019. The Council was entitled to reject the escalation to stage 3 but the delayed response is fault.
57. The cumulative delay from the Council amounts to slightly less than six months. This has delayed Miss X from approaching the Ombudsman and subsequently delayed payment of her missed financial support.
58. The Council should provide an apology to Miss X and pay her £100 for the avoidable uncertainty, frustration and inconvenience caused through the Council’s fault.

Agreed action

59. Within one month of my final decision the Council should:
• Pay Miss X £6724.50 for the missed financial support from 24 September 2012 to 28 August 2013 as Y’s family and friend Foster Carer.
• Apologise to Miss X and pay Miss X £100 for failing to consider Y a looked after child in 2012, the avoidable delay and frustration in handling her complaint and the delay in providing her with her missed financial assistance.

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Final decision

60. The Council was at fault. It did not consider Y a looked after child and as such failed to provide Miss X with financial support for being Y’s Connected Person Foster Carer. The Council agreed to my recommendations so I will complete my investigation.

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Investigator's decision on behalf of the Ombudsman