Brighton & Hove City Council (20 001 244)

Category : Children's care services > Friends and family carers

Decision : Upheld

Decision date : 27 May 2021

The Ombudsman's final decision:

Summary: Mr X complains that the Council wrongly considered his and Mrs X’s care of their grandchildren to be a family arrangement. The Council is at fault for wrongly considering Mr and Mrs X’s care of their grandchildren to be a family arrangement. As a result Mr and Mrs X suffered financial loss as the Council did not pay foster carers allowance to them. The Council has agreed to remedy this injustice by paying a foster carers’ allowance to Mr and Mrs X for the six month period they looked after their grandchildren.

The complaint

  1. Mr X complains that the Council wrongly considered that his grandchildren were placed with him and his wife under an informal family arrangement in December 2019 when their mother could not care for them. Mr X considers the children were placed with him and his wife by the Council so were looked after children. As a result Mr and Mrs X have suffered financial loss as the Council did not pay them a foster carers allowance to look after the children.
  2. Mr X also complains the Council did not provide additional nursery hours for the children as it had undertaken to do.

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The Ombudsman’s role and powers

  1. 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)
  2. 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.
  3. 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

  1. I have:
  • Considered the complaint and the information provided by Mr X;
  • Made enquiries of the Council and considered the information provided;
  • Invited Mr X and the Council to comment on the draft decision.

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What I found

Law and administration

  1. 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 abandoned, or the person who has been caring for the child being prevented, whether permanently or not, from providing the child with suitable accommodation and care.
  2. The principle in law is that all children, including ‘looked after children’, should wherever possible be cared for by their families and friends. So, a council may fulfil its legal duty to accommodate a child by placing them with relatives or friends. That relative would be considered to be a family and friends foster carer. The local authority would have to undertake certain checks and approvals of their suitability to care for the child, and monitor the child’s welfare. The family member caring for the child would then be entitled to receive weekly fostering payments to help care for the child at the same rate as an authority foster carer and would receive support from a social worker.
  3. A private family arrangement is where a relative has agreed with the parent to take on the care of their child. In this case, the child would not be a looked after child and financial responsibility for the child remains with the person who has parental responsibility for them. A council can provide financial support if the child is a child in need under section 17 of the Children Act 1989.
  4. The courts have held that:
    • If a local authority plays a major role in making arrangements for the child, the most likely conclusion is that it is exercising its powers and duties to accommodate the child.
    • Informal family care arrangements are usually made direct between individuals.
    • If a local authority intends to merely assist in arranging informal family care rather than accommodating a child itself, the local authority must be explicit with those involved, including giving clear information about who will be financially responsible for the child. If this is not made clear, the courts and others are likely to decide the local authority is making the placement itself. Only on receiving such information can a potential foster carer give informed consent to accept the child on an informal family care arrangement. (London Borough of Southwark v D [2007] EWCA 182).

What happened

Background

  1. Mr and Mrs X are the paternal grandparents of Y and Z. At the time of the complaint the children were under five years old. In autumn 2019 the Council placed the children on a child protection plan due to Ms A’s, their mother’s chaotic lifestyle and addiction problems. Mr and Mrs X then looked after the children for a period of time following an incident where Ms A was intoxicated and unable to collect the children from nursery.
  2. The Council carried out a legal planning meeting regarding the care of the children. This is a meeting before court proceedings for the care of the children are considered. The meeting considers what needs to be done to protect the children from harm and how an agreement can be reached to achieve this. The children then returned to Ms A’s care under a written agreement which provided she should not consume alcohol or drugs while caring for her children.

Events leading to the complaint

  1. Following an incident in December 2019, the police took Ms A and the children to her mother’s house. The Council’s records note a family member or friend then took the children to Mr and Mrs X’s house. The record notes Ms A was intoxicated, initially angry and wanting the children to remain with her but subsequently agreed with her mother and social worker that the children should remain with Mr and Mrs X until she sobered up.
  2. Mr X says he spoke to a duty social worker at this time who asked him to care for the children as nothing could be done as it was close to the Christmas break.
  3. The Council’s records show Mr and Mrs X telephoned the Council shortly after Christmas. The record notes Mr and Mrs X wanted to know what was happening in the long term and felt there was no sense of permanence. They did not know if they could place the children in nursery due to issues around finance and their legal status in relation to the children. They also did not know if there were able to give the children back to Ms A and felt unsure the arrangement would be permanent. The record notes Mr and Mrs X felt they had had no help or contact with children’s services and demanded a visit.
  4. Officer 1 then visited Mr and Mrs X. The Council’s record of the visit notes they were worried for the children’s safety and requested a temporary nursery placement for the children to give them a break. Mr X said that officer 1 asked them if they could care for the children until matters were resolved and said the children would have to go into foster care if Mr and Mrs X were unable to look after them. This is not noted in the record of the officer 1’s visit.
  5. In early January 2020 the Council carried out a strengthening families’ assessment and held a strategy meeting to consider the incident in December 2019.The assessment noted Mr and Mrs X will need ongoing support and financial help so the children’s needs are consistently met. They also needed to enrol the children at nursery. The assessment questioned whether the family arrangement under which the children were living with Mr and Mrs X was sustainable as the children always go back to Ms A’s care. It noted that it was not clear if the grandparents would be the appropriate long term carers if the children could not return to Ms A. The assessment made a number of recommendations including that a legal planning meeting be held.
  6. The Council held a child protection conference in late January 2020. Mr and Mrs X have said the chair of the child protection conference said the children were entitled to 30 hours a week of free nursery education which the Council should sort out by 31 March 2020. The strengthening families assessment says a referral for additional funding would be made by the nursery by 31 March 2020.
  7. In late January 2020 Mr and Mrs X contacted the Council to ask if they were entitled to a carers’ payment. Officer 1 replied saying that as discussed at the child protection conference Ms A should pay Mr and Mrs X the children’s child benefit as it was a family arrangement. Mr and Mrs X have said the child protection conference did not refer to their care of the children as a family arrangement.
  8. Mr and Mrs X contacted officer 1 again in February 2020. In the complaint Mr and Mrs X said Ms A did not agree to the children living with them and they were told by the Council to call the police if Ms A tried to take the children.
  9. Officer 1 responded to Mr and Mrs X. She noted Mr and Mrs X were not keen on the term ‘family arrangement’ as they had not made the arrangement with Ms A. Officer 1 said this was the term used by the Council when children move between families prior to any assessment to approve such arrangements. Officer 1 said she brought finance forms to Mr and Mrs X after the child protection conference for them to complete. She advised any requests for financial assistance had to be accompanied by the finance forms. Mr and Mrs X did not return the forms.
  10. Officer 1 also advised she had emailed the council in the area where Ms A was now living regarding how to increase the free nursery provision for the children to 30 hours per week and she was waiting for a response. Further emails between officer 1 and her manager in April 2020 show officer 1 had explored if Mr and Mrs X could receive 30 hours free nursery provision for the children but Mr and Mrs X and Ms A did not meet the eligibility criteria. Officer 1 sent an email to Mr and Mrs X advising that children’s services would look at how to provide the 30 free hours as their situation did not meet the criteria for funding.
  11. The Council carried out a legal planning meeting regarding the care of the children. The Council decided the children could be returned to Ms A. Mr and Mrs X returned the children to Ms A’s care in late May 2020.
  12. Mr and Mrs X made a complaint about the Council considering the children were living with them as a family arrangement. The Council did not uphold their complaint.
  13. Mr and Mrs X consider the Council placed the children with them and they did not make an arrangement with Ms A for them to care for the children between December 2019 and May 2020. They consider the Council should have paid them a fostering allowance for looking after the children.
  14. The Council considers the children lived with Mr and Mrs X from December 2019 under a family arrangement and it had no role in placing the children with them. The Council has referred to a number of its records which refer to the arrangement as a family arrangement.
  15. In response to my enquiries the Council has also said the nursery was responsible for arranging 30 hours per week of free nursery provision.

Analysis

Was this a family arrangement?

  1. Family arrangements are usually made between the parent and the person who is caring for the children. In this case the children were taken to Mr and Mrs X by a family member or friend. There is no evidence to show the agreement was made directly between Ms A and Mr and Mrs X.
  2. The Council’s records show Ms A initially did not agree to the children staying with Mr and Mrs X but did so following the social worker’s suggestion. Although the Council did not directly place the children with Mr and Mrs X, the record shows the Council had significant involvement in the placement. The placement would not have been sustainable without the social worker’s involvement in persuading Ms A that the children should stay with Mr and Mrs X.
  3. The Council had significant involvement with the children as they were on a child protection plan, had been subject to a legal planning meeting and written agreement which Ms A had breached. The Council’s records show Ms A could not look after the children at the time of the placement and for some weeks afterwards. It is therefore likely the children would have been looked after children if Mr and Mrs X had not accommodated them as Ms A, as the person with parental responsibility, could not provide them with suitable accommodation and care.
  4. The courts have held that they and others are likely to find the local authority is making the placement itself if it does not provide clear information about who is financially responsible for the children. I am not satisfied the Council gave sufficient information to Mr and Mrs X to enable them to make an informed decision on whether to accommodate the children.
  5. Mr and Mrs X contacted the Council in late December 2019 to raise concerns about the financial arrangements and permanence of the arrangements which led to officer 1’s visit. There is no evidence to show officer 1 explained the Council’s role and that it considered the arrangement to be a family arrangement. There is no evidence to show officer 1 explained who had financial responsibility for the children and what financial support might be on offer at that time. I acknowledge the Council discussed the financial arrangements with Mr and Mrs X in February 2020 but this was six weeks after they had accommodated the children. So the Council did not provide timely advice to Mr and Mrs X which would have allowed them to make an informed decision about accommodating the children and continuing to care for them in December 2019. It is clear from Mr and Mrs X’s emails to officer 1 in late January and early February 2020 that they were not aware the Council considered the arrangement to be a family arrangement and it would not pay a foster carers allowance.
  6. So, on balance, I consider the Council is at fault for considering the children were placed with Mr and Mrs X under a family arrangement. I acknowledge the Council sent financial assessment forms to Mr and Mrs X to consider if it should provide child in need payments and they did not return the forms. But the Council should have paid a foster carers allowance to them from when they accommodated the children in December 2019 to May 2020 when they returned to Ms A’s care. As a result Mr and Mrs X did not receive the appropriate financial support during the six months they cared for the children.

30 hours of free nursery provision

  1. The Council has said it was not responsible for arranging the 30 hours of free nursery provision. However, there is evidence to show officer 1 was actively investigating if Mr and Mrs X or Ms A were eligible for the free provision and the options available when it was found they were not. Mr and Mrs X did not receive the provision for the children as they were not entitled to it. Nurseries were then closed due to the COVID 19 pandemic which prevented officer 1 from exploring other options. Nurseries did not reopen until after the children’s return to Ms A. So, I am satisfied there is no evidence of fault by the Council which prevented the children from receiving 30 hours of free nursery provision.

Agreed action

  1. That the Council will:
      1. Send a written apology and makes a payment of £250 to Mr and Mrs X to acknowledge the distress caused to them by wrongly considering the children were placed with them under a family arrangement.
      2. Pay Mr and Mrs X the appropriate foster carers allowance for the six month period they looked after the children. The Council may need to consider any payments made by Ms A when calculating the amount to be paid to Mr and Mrs X. The Council should take the action at a) and b) within one month of my final decision.
      3. By training, or other means, ensure officers provide clear and timely advice to people voluntarily caring for a child if the Council considers it to be a family arrangement. The Council should clearly explain it is a family arrangement and state who is financially responsible for the child. This is to enable people to make an informed decision on whether they should care for, and continue to care for, the child. The Council should carry out this action and provide evidence of the action taken within three months of my final decision.

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Final decision

  1. The Council is at fault for wrongly considering Mr and Mrs X’s care of their grandchildren to be a family arrangement. As a result Mr and Mrs X suffered financial loss as the Council did not pay foster carers allowance to them. The Council has agreed to remedy this injustice to paying foster carers’ allowance to Mr and Mrs X for the six month period they looked after their grandchildren. This is an appropriate and proportionate remedy so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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