Privacy settings

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

East Riding of Yorkshire Council (20 004 148)

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

Decision : Upheld

Decision date : 22 Sep 2021

The Ombudsman's final decision:

Summary: Mr Y complains the Council incorrectly decided that his sister, B, was living with him under a private family arrangement. The Ombudsman finds the Council at fault. The Council’s failure to accept a duty to accommodate B under section 20 the Children Act 1989 meant Mr Y missed out on the fostering allowance that he was eligible to receive while B lived with him. B missed out on the support that would have been available to her as a looked after child, which left her with uncertainty. To remedy the injustice caused to Mr Y and B, the Council has agreed to: apologise to them and make a payments to Mr Y for the fostering allowance he should have received and to B for the uncertainty.

The complaint

  1. The complainant, who I shall refer to here as Mr Y, complains the Council:
      1. arranged for his sister, B, to live with him and incorrectly claimed that B was living with him under a private family arrangement. He says he did not agree to B staying with him under such terms and had been told he would receive fostering allowance to support B staying with him;
      2. incorrectly refused to approve Mr Y as a foster carer for B;
      3. said it would provide no further funding to him other than a one-off payment of £400. Mr Y says this put him under financial pressure and he had no option but to tell B and her social worker that he would not be able to sufficiently provide for B in the long term. Mr Y says this resulted in B’s social worker arranging a foster placement for B elsewhere; and,
      4. incorrectly refused his request to receive a fostering allowance for the period B lived with him. Mr Y says he should have received this as the Council was accommodating B with him under section 20 of the Children Act 1989.
  2. Mr Y says he missed out on the standard fostering allowance specified in Regulation 24 of the Care Planning, Placement and Case Review (England) Regulations 2010 for the period B lived with him.
  3. Mr Y says he and B wished to continue living together, but financially he was not able to do this without a fostering allowance. He says the Council’s decision to place B in a foster placement elsewhere, therefore, caused him and B great distress.
  4. Mr Y says he has gone to time and trouble complaining to the Council.

Back to top

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. 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.
  3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  4. 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)

Back to top

How I considered this complaint

  1. I considered the information and documents provided by Mr Y and the Council. I spoke to Mr Y about his complaint.
  2. Mr Y and the Council had an opportunity to comment on my draft decision. I issued a second draft decision to both Mr Y and the Council taking into account the comments received by them. I considered all comments before reaching a final decision.
  3. 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.

Back to top

What I found

What should have happened

The Children Act 1989

  1. The Children Act 1989 (the Act), section 17, states 'children in need' are children who:
  • need councils to provide them with services so they can achieve or maintain a reasonable standard of health or development; or
  • need councils to provide them with services to prevent them suffering significant or further harm to health or development; or
  • are disabled.
  1. Under the Act, a “child” is any person who is under the age of eighteen years old.
  2. Councils can provide a range of services including financial support to children it has assessed as being ‘in need’.
  3. The Children Act 1989, section 20, states 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;
  • his/her 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 or care.
  1. Where accommodation is provided under section 20, the arrangement is a voluntary one. A local authority may not provide accommodation under this section for any child if:
  • any person who has parental responsibility for that child objects to that arrangement; and
  • that person is willing and able to provide accommodation for them (or arrange for accommodation to be provided for them).
  1. Before considering unrelated foster carers, councils are required to firstly consider a placement with parents, then family and friends who are willing and able to act as foster carers (the Children Act 1989, section 22).
  2. If the Council makes arrangements for a child to be accommodated by someone other than their parents, it must provide financial support to maintain the child in the form of a fostering allowance as well as practical support to the 'looked after child'.

Private family fostering arrangements

  1. 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 such an arrangement there is no right to any financial support from the 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.
  2. Statutory guidance says councils must have policies explaining how family and friends carers are made aware of the eligibility criteria for financial support and when means testing applies, how to apply for any such financial help, and how and when decisions are made about eligibility.
  3. Where financial support is offered by a council, a written agreement should be drawn up detailing the level and duration of the support that is to be provided and the mechanism of review, to ensure all parties remain clear about the arrangements.
  4. Statutory guidance says councils should signpost to local and other sources of information and advice. They should explain the circumstances in which a child may become accommodated by the council or in which care proceedings may be instigated, and how and by whom such decisions are made.
  5. Informal family and friends carers need to feel confident if they ask for support, their views will be listened to and the child’s needs will be appropriately assessed.

Case law on family and friends care arrangements – the 2007 Southwark judgment

  1. 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 it is likely to conclude the council is acting under its duties to provide the child with accommodation where a council takes a major role in making arrangements for the child to be fostered.
  2. 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 [2007] EWCA 182, (the Southwark judgment))
  3. In the Southwark judgment Lady Justice Smith said:
  • “If an authority wishes to play some role in making a private arrangement, it must make the nature of the arrangement plain to those involved. If the authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that s/he must look to the parents or person with parental responsibility for financial support. The authority must explain that any financial assistance from public funds would be entirely a matter for the discretion of the local authority for the area in which the foster parent is living. Only on receipt of such information could the foster parent give informed consent to acceptance of the child under a private fostering agreement. If such matters are left unclear, there is a danger that the foster parent (and subsequently the court) will conclude that the local authority was acting under its statutory powers and duties and that the arrangement was not a private one at all.”

East Riding of Yorkshire Council’s Family and Friends Care Policy (2018)

  1. The Council’s policy says it has to assess the child's needs and provide services to meet any assessed needs of the child. As part of the assessment, the policy says a view should be taken as to whether the carers need financial support based on their reasonable requirements in taking on the care of the child. A Child in Need Plan will then be drawn up detailing the package of support.
  2. The Council’s policy says it has discretion to give financial assistance to relatives caring for a child in need. This may be in the form of one or more of the following three types of financial support:
  • one-off subsistence payments to overcome a crisis;
  • setting up support, for items such as clothing, furniture or bedding; and,
  • weekly living contribution. The Council says it can consider making this payment to family members caring for a child regardless of whether or not the child is looked after. When awarded, the Council will create a written agreement detailing the level and duration of financial support, and include a review mechanism.

Children who are homeless

  1. There is statutory guidance on the Prevention of homelessness and provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation (as updated in 2018). This provides guidance to councils’ children’s services and local housing authorities on their duties.
  2. It explains where a 16 or 17 year old asks for help from their local council, children’s services must carry out an assessment of what duties are owed. Where the section 20 duty is triggered, the local council is under a duty to accommodate the child. Where a young person in need requires accommodation as a result of one of the factors set out in section 20(1) (a) to (c) or section 20(3) then that young person must be provided with accommodation.
  3. The statutory guidance explains:

Case law has clarified the relationship between the duty under section 20 of the Children Act 1989 (‘the 1989 Act’) and duties under Part 7 of the Housing Act 1996 (‘the 1996 Act’) in the case of 16 or 17 year olds who require accommodation. The House of Lords case R (G) v Southwark [2009] UKHL 26 held that, where a 16 or 17 year old is owed duties under section 20 of the 1989 Act, this takes precedence over the duties in the 1996 Act in providing for children in need who require accommodation. Where the specific duty is owed under section 20 of the 1989 Act, a 16 or 17 year old should be accommodated under that provision rather than looking to the general duty owed to children in need and their families under section 17 of the 1989 Act.

  1. The guidance explains there are only two circumstances where a council might decide not to accommodate a homeless young person under section 20 and instead may find its duties are owed under the Housing Act 1996. These are where:
  • the young person is not a child in need, or
  • where the young person is in need and has been “properly and fully advised of the implications and having the capacity to reach a decision, has decided that they do not want to be accommodated under section 20”.

What happened

  1. In May 2020, Mr Y’s sister, B, was told by her parents she had to leave the family home. B was 16 years old at the time. B went to live with family friends. There is evidence B’s parents had consented to the arrangement with the family friends and the Council’s social care team subsequently became involved at the request of B’s parents. A Council social worker carried out police checks and a risk assessment of the family friends.
  2. In August, B asked Mr Y if she could live with him as she now had nowhere she could live after her time with family friends broke down. Mr Y agreed to this.
  3. The next day, Mr Y and B met with B’s allocated social worker from the Council. B had a social worker because she was considered a child in need. During this meeting, Mr Y agreed to the Council doing a Disclosure and Barring Service (DBS) check, which would confirm whether any criminal convictions existed.
  4. B’s social worker contacted a local homelessness shelter for young people to enquire whether there was space to accommodate B. Both B and Mr Y agreed this was not an option they wished to consider for B.
  5. A few weeks later, Mr Y contacted the Council to ask to provide long-term care for B under a formal fostering arrangement.
  6. Following Mr Y’s request, B’s social worker made a home visit at Mr Y’s home.
  7. In September, B’s social worker wrote to Mr Y. B’s social worker told him:
  • the Council would provide certain financial support to B. This included funding to secure some formal identification and to cover the cost of a school bus pass for one year;
  • the Council would provide B with a one-off payment to cover the cost of essentials like clothing and school stationary. She said this was because Mr Y was still waiting for a decision about his application to receive the Child Benefit for B;
  • she would support B in making a Universal Credit application;
  • as B was 16 years old, she had accepted her consenting to living with Mr Y without her parents’ consent. This was because B said she felt safe living with Mr Y and did not want to live in the homelessness shelter; and,
  • she considered the arrangement between B and Mr Y to be a private family arrangement. She said this was because it did not consider B’s welfare would likely be seriously prejudiced if the Council did not provide her with accommodation. Therefore, she said section 20 of the Children Act 1989 did not apply to B.
  1. Mr Y received a one-off payment from the Council of £400.
  2. In mid-September, the Council arranged a foster care placement for B.
  3. In October, Mr Y complained to the Council.
  4. In late October, Mr Y received a Child Benefit letter refusing his application for Child Benefit for the time B lived with him. Mr Y told the Council.
  5. In November, the Council sent Mr Y its stage one complaint response.
  6. In April 2021, the Council sent Mr Y its stage two complaint response.

Analysis – was there fault by the Council causing injustice?

The Council’s decision about there being a private family arrangement

  1. Mr Y complains the Council arranged for his sister, B, to live with him and incorrectly claimed that B was living with him under a private family arrangement. He says he did not agree to B staying with him under such terms and had been told he would receive fostering allowance to support B staying with him (part a of his complaint).
  2. This does not appear to have been a private family arrangement, or informal arrangement, as the arrangement was not made between B’s parents and Mr Y.
  3. There is no dispute that B was a child in need under section 17 of the Children Act. As such, when her placement broke down in August with the family friends, and the Council was made aware of this the next day, the Council should have carried out an assessment to decide whether she required accommodating under section 20 of the Children Act 1989.
  4. Based on the evidence I have seen, the Council did a form of assessment with Mr Y and B at the beginning of August 2020. Among other things, this found that B had been abandoned by her parents, and that she would be at risk of harm were she to return to them. The Council told Mr Y the police should be called if B’s parents turned up at his home. This would indicate the Council was required to accommodate B under section 20 (1)(b) of the Children Act, being lost or having been abandoned.
  5. Based on the Council’s stage one response and record of the meetings with Mr Y and B, this shows the Council was looking into alternative accommodation options for B, specifically at a homeless shelter. This suggests it considered B homeless, B’s parents were unwilling or unable to provide suitable care for her, and the Council was considering other housing options for B. This does not support its view that B was living with Mr Y under a private family arrangement.
  6. In addition, the statutory guidance on the Prevention of homelessness and provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation says the Council should carry out a children’s services assessment if a 16-year-old appears to be homeless. It explains case law has determined the duty owed by the Children Act comes first before any duty under the Housing Act. The Council should have resolved the section 20 duty before seeking accommodation for B as a homeless young person. Its decision to seek homeless accommodation, without evidence it had offered B accommodation under section 20, without evidence B had refused to be accommodated under section 20 with her brother, and without evidence it had explained the consequences of refusing section 20 accommodation, was fault.
  7. In response to an earlier draft decision, the Council told us B was a “Gillick-competent’ teenager, was a child in need of services and was homeless under the Housing Act 1996. At that time the Council suggests that no duty of care to a ‘looked after’ child arose. For the reasons set out in the paragraph above, the Council has accepted she was homeless and a child in need. It is mistaken about its duty under section 20 of the Children Act 1989. Therefore, this is further evidence of fault.
  8. I find the Council at fault for failing to realise it had a duty under section 20 and then for not accepting a duty to accommodate B under section 20 the Children Act 1989. Had it done so, then on the balance of probabilities I find her brother, Mr Y, should have been considered a suitable carer, given the Council’s duty to first consider placing a child with family or friends. As a result, the Council should have paid Mr Y fostering allowance as a friends and family carer on a temporary basis, until the Council had decided on a permanency plan or carried out a full assessment of him as a foster carer. This caused Mr Y injustice as he missed out on the fostering allowance, and practical support from the Council as a family and friends foster carer, that he should have received from B coming to live with him in August 2020 until B no longer lived with him.
  9. I do not consider B’s placement with Mr Y can be viewed as an informal, private family arrangement. I find the Council at fault for saying it was such an arrangement. This is based on the following reasons:
      1. in the Council’s stage one complaint response to B, it said, at the time of the initial meeting with Mr Y, B and B’s social worker at the beginning of August: “options for living arrangements were still being explored” with B. It accepted that, following this meeting, no clear, written agreement was created that set out the level and duration of B’s living arrangements with Mr Y and included a mechanism for review. This is required in informal private arrangements (see paragraph 21 above);
      2. the Council failed to give Mr Y enough information about what support may or may not be offered to enable him to make an informed decision when agreeing to care for B;
      3. in the end, the Council facilitated the placement with Mr Y based on B’s wishes. I find the Council played a significant role in arranging for B to live with Mr Y. It carried out a DBS check on Mr Y and, when deciding not to pursue the homeless shelter option, considered Mr Y’s views about this and B continuing to live with him. The Council’s response to my enquiries suggests a house inspection took place, but it does not have a record of this assessment. Records from the meeting with Mr Y and B at the end of August, however, do show B’s social worker noted Mr Y’s home “presented to a high standard” and B now had her own bedroom there;
      4. equally, the alternative to B living with Mr Y was she would have been homeless or the Council would have been required to arrange care. The Council did begin the process of assessing Mr Y as a long-term friends and family carer, which would support the Council’s implied acknowledgment of its duty to accommodate B under section 20. However, it stopped the process because of concerns about the quality of care being provided;
      5. based on the record of the Council’s initial meeting with Mr Y and B, this shows Mr Y did not wish to make contact with B’s parents. However, I cannot see that the Council explained to Mr Y that, under a private family arrangement, he would be required to seek financial support from those with parental responsibility for B (in line with paragraphs 25 and 26 above). It also did not explain to B that any financial assistance from the Council would be entirely a matter for its discretion. In line with the 2007 Southwark case above, the Courts have clearly said that only on receipt of such information could the foster parent, Mr Y, give informed consent to acceptance of the child under a private fostering agreement. Given these matters were left unclear, there was a risk Mr Y would conclude the Council was acting under its statutory powers and duties and that the arrangement was not a private one at all. I find this to be the case here;
      6. the arrangement had not been directly agreed between B’s parents and Mr Y (paragraph 19 above refers); and,
      7. the courts have said children services do not have the option of choosing which provision of the Children Act 1989, either section 17 or section 20, they should provide accommodation for homeless 16-year-olds. Section 20 involves an evaluative judgement on some matters, but not discretion.
  10. This fault caused Mr Y stress and uncertainty. It was unclear what support, if any, Mr Y could rely on from the Council throughout the time B lived with him.

The Council’s refusal to approve Mr Y as a foster carer for B

  1. Mr Y complains the Council incorrectly refused to approve him as a foster carer for B (part b of his complaint).
  2. I find paragraphs 47 to 53 explain why I find the Council at fault for failing to grant fostering allowance as a friends and family carer on a temporary basis, until the Council had decided on a permanency plan. Based on the evidence I have seen, I, therefore, uphold this part of Mr Y’s complaint.

The Council’s decisions about financial assistance

  1. Mr Y complains the Council said it would provide no further funding to him other than a one-off payment of £400. Mr Y says this put him under financial pressure and he had no option but to tell B and her social worker that he would not be able to sufficiently provide for B in the long term. Mr Y says this resulted in B’s social worker arranging a foster placement for B elsewhere (part c of his complaint).
  2. I find paragraphs 48 to 53 above sufficiently explain why I have found the Council at fault for not accepting a duty to accommodate B under section 20 the Children Act 1989, which caused Mr Y to miss out on fostering allowance.
  3. Additionally, after a few weeks of B living with him, Mr Y asked the Council to arrange a formal fostering arrangement. He provided his bank details so that fostering allowance payments could begin. The Council social worker that Mr Y spoke to then wrote to B’s social worker, copying Mr Y in, to ask her to contact Mr Y.
  4. B’s social worker met with Mr Y and B a week later. Minutes from this meeting show Mr Y said he would like to care for B long-term if he is financially supported in doing so. He asked to be assessed as a foster carer for B as he thought this would allow him to access the support he needed to care for B.
  5. As stated in paragraph 27 above, the Council’s Family and Friends Care policy states, as part of the child’s assessment of needs, a view should be taken as to whether the carer needs financial support based on their reasonable requirements in taking on the care of the child. A Child in Need Plan should then be drawn up detailing the package of support. Mr Y said to the Council several times that his financial situation was affecting his ability to care for B long term.
  6. Based on the evidence I have seen, the Council did not carry out an assessment of Mr Y’s financial situation to inform B’s package of support. This is fault. This caused Mr Y stress and uncertainty as it was not clear what support, if any, Mr Y could apply for. This, understandably, undermined Mr Y’s confidence that his views would be appropriately considered by the Council when he asked for support and advice.
  7. In its stage one complaint response, the Council accepted fault in that: “B herself has said that she would have stayed with Mr Y if further financial support had been available. Because this was not possible and B faced being homeless, other options were explored … B agreed to be looked after by the Local Authority under section 20 of the Children Act 1989. B then visited a potential foster placement and chose to go to that placement.”
  8. The Council apologised to Mr Y and said it accepted the financial support it did provide was not given in a timely way.

The Council’s decision about fostering allowance

  1. Mr Y complains the Council incorrectly refused his request to receive a fostering allowance for the period B lived with him. Mr Y says he should have received this as the Council was accommodating B with him under Section 20 of the Children Act 1989.
  2. I find paragraphs 48 to 53 above sufficiently explain why I find the Council at fault regarding this part of Mr Y’s complaint.

Record keeping

  1. In response to questions I asked the Council, it accepted that Mr Y was not sent written correspondence confirming all decisions that were made about B and her placement with him. I find this included explaining in writing to Mr Y the circumstances in which B may become accommodated by the Council or in which care proceedings may be instigated, and how and by whom such decisions are made. This is fault.
  2. Given the decisions made during the time B was accommodated with Mr Y, he should have received clear, written information about these. This unclarity caused him uncertainty.

Injustice to B

  1. During my investigation, it came to my attention that B, a member of the public who had not directly complained to us, suffered an injustice as a result of the Council failing to:
  • realise it had a duty under section 20 and then for not accepting a duty to accommodate B under section 20 the Children Act 1989 when B moved in to live with her brother (see my analysis at paragraphs 48 to 53). I have seen no evidence either to show the Council made B fully aware of the implications of refusing section 20 accommodation, but then she still refused; and
  • provide financial support to Mr Y in a timely manner, which affected B’s ability to stay with her brother (paragraphs 63 to 64 above refer).
  1. B experienced distress and uncertainty because of this fault.

Back to top

Agreed action

  1. The Council has already offered Mr Y £200 to acknowledge the time and trouble he went to complaining. Mr Y has accepted and received this payment. However, I do not find this sufficiently remedies the injustice Mr Y has experienced.
  2. Therefore, within four weeks of my final decision, the Council has agreed to:
      1. apologise in writing to Mr Y for failing to grant him fostering allowance as a friends and family carer on a temporary basis, until the Council had decided on a permanency plan, and incorrectly deciding the arrangement was an informal family arrangement;
      2. make a payment to Mr Y commensurate with the level of fostering allowance at the time B lived with him. This should cover the six weeks and one day that B lived with him between August and September 2020. Based on the information available to me, I have calculated this as £1519.77 (£312.52 per week for fostering B, who was 16 years old, over six weeks = £1875.12, plus £44.65 for the additional day. This comes to £1919.77. When the £400 one-off payment Mr Y received is deducted from this total, the final sum comes to £1519.77); and,
      3. make a payment to Mr Y of £150 for the distress and confusion caused. When recommending this payment I have factored in the impact of the Council incorrectly deciding the placement was an informal family arrangement, and its failure to properly assess Mr Y’s financial position or provide clearly reasoned decision letters to Mr Y.
  3. To remedy the injustice caused to B, within four weeks of my final decision, the Council has also agreed to:
      1. apologise to B in writing for the fault and injustice identified in paragraphs 70 to 71 above. The Council should include information in this about what to do if B would like to separately complain in her own right about the issues raised in this complaint; and
      2. make a payment to B of £150 for the distress and uncertainty caused.
  4. The recommended above payments are in line with the Ombudsman’s published guidance on remedies.
  5. Within three months of my final decision, the Council has agreed to make the following service improvements:
      1. review its Family and Friends Care Policy (2018) to ensure it contains sufficient directions to staff on the information carers in informal family arrangements should be given. Clear directions to staff should be provided on when decision letters should be sent to carers and these should include detailed reasons around any decisions made;
      2. issue a reminder to children’s services staff about the differing duties under the Housing Act 1996 and the Children Act 1989, the relevant court case from 2009 which explains why the Children Act takes precedent, and the statutory guidance Prevention of homelessness and provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation, 2018;
      3. review similar cases over the last six months where the Council has decided a private family arrangement is in place for a 16 or 17 year old young person. This is to ensure no other cases have been affected in this way; and,
      4. share this decision with relevant staff members.
  6. The Ombudsman will need to see evidence that these actions have been completed.

Back to top

Final decision

  1. I have completed my investigation. I have decided to uphold Mr Y’s complaint, because there was fault by the Council causing him injustice. The above recommendations are suitable ways for the Council to remedy this.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page