Kingston Upon Hull City Council (20 005 093)

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

Decision : Upheld

Decision date : 08 Feb 2022

The Ombudsman's final decision:

Summary: Mr and Mrs K complain the Council did not treat their nephew as a looked after child, after its social worker asked them to accommodate him. That meant they did not receive a fostering allowance. The Ombudsman upholds the complaint, as we find fault with the Council’s communications and record keeping. We cannot say the Council should have treated Mr and Mrs K’s nephew as a looked after child. But the Council has agreed to our recommendation of a remedy for the uncertainty caused by the faults.

The complaint

  1. The complainants (whom I shall refer to as Mr and Mrs K) complained the Council:
    • failed to treat their nephew (whom I shall refer to a L) as a ‘looked after child’ when he stayed with them in 2019;
    • instead said L came to stay with them as a private family arrangement. But the Council’s social worker had a major role in this, as she asked them to look after L;
    • communicated poorly with them about the arrangements;
    • did not provide proper financial support, either at the time, or following their complaint; and
    • has not followed its complaints procedure.
  2. As a remedy, Mr and Mrs K sought an increased payment for their extra costs – if the Council had treated L as a looked after child, they would have been entitled to a fostering allowance. They also wanted to see staff training and a change to the Council’s policy.

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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. 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)
  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.

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How I considered this complaint

  1. The information I have seen includes:
    • the documents Mr and Mrs K supplied with their complaint;
    • the Council’s responses through its complaints procedure;
    • the documents the Council sent me in response to my enquiries; and
    • responses to my draft decisions.

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What I found

Legal and administrative background

  1. The Children Act 1989 (which I shall refer to as the Act) sets out duties to local authorities. The following Sections are relevant to this complaint.

Section 17 – ‘children in need’

  1. Section 17 of the Act sets out that:

“It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) –

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs.”

  1. Section 17 also says:

“The services provided by a local authority in the exercise of functions conferred on them by this section may include [providing accommodation and] giving assistance in kind or … in cash.” (Section 17(6))

Section 20 – ‘looked after children’

  1. Section 20(1) of the Act sets out that:

“Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –

      1. there being no person who has parental responsibility for him;
      2. his being lost or having been abandoned; or
      3. the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.”
  1. Section 20(4) of the Act says:

“A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare.”

  1. If a council places a child with family or friends carers under Section 20, it needs to approve them as foster carers, in line with the relevant Regulations. They would then be entitled to a weekly fostering allowance.
  2. Parents may make informal family care arrangements directly with friends or relatives. In such cases the child is not considered to be a looked after child. The council is not obliged to provide financial support, as that duty remains with the parent.
  3. One important court judgement looked at when a child should be considered a ‘looked after child’. It noted 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 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.” (London Borough of Southwark v D [2007] EWCA Civ 182)

Section 47 – ‘child protection’

  1. Local authorities have child protection duties to investigate, when they have “reasonable cause to suspect that a child…is suffering, or is likely to suffer, significant harm”.

The Council’s family and friends policy

  1. The Council’s policy says:
  • a child may be privately fostered, if cared for away from home for more than 28 days. Its procedure on such arrangements has a set of actions for social workers, including an initial assessment within a week;
  • families might also make “informal family and friends carers arrangements”;
  • “Whether or not a child who is cared for by a family and friends care should be deemed to be 'looked after' by the local authority will be a matter to be decided on a case by case basis. The key question will be whether the child appears to require accommodation for one of the reasons in Section 20 [of the Act]. It may not always be easy to determine whether a child who is cared for by a family or friends requires accommodation for the purposes of Section 20 or whether the child's needs should be met by providing support under Section 17 of the Children Act 1989.”
  1. The policy has three types of payments the Council might make:
  • subsistence crisis (one-off) payments;
  • setting-up payments;
  • weekly living contribution payments. The policy says “[i]t is possible for the local authority to make regular payments where family members or friends care for a child whether or not the child is Looked After.”

What happened

  1. L is a teenager; the oldest of his mother’s (whom I shall refer to as Ms M) eight children. He lived at home with his mother, siblings and step-father (who I shall refer to as Mr N).
  2. The Council says, in 2019, it received a new referral from L’s school, because L had told staff Mr N had assaulted him.
  3. The Council opened up a child protection file. Its social worker visited L’s school, with two police officers, and spoke to him. The social worker’s conclusion was the concerns were sufficient to continue with a child protection investigation.
  4. The social worker and police officers then went with L to visit Ms M. Its case notes record that its view was it was safe for L to stay at home that night, because the police were going to arrest Mr N. And his bail would include a condition he stayed away from L and the family home. The casenotes also record that, on the way to Ms M’s, the social worker discussed with L whether he would be able to stay at home with his mother. L said he thought it would be ok.
  5. The casenotes say the social worker also spoke to L about the possibility the Council might seek to get him to stay elsewhere for a few days, if Ms M tried to blame him for what had happened.
  6. The Council’s record of the visit to Ms M says:
    • Mr K (Ms M’s brother) was there when they arrived;
    • “We agreed that it was a good idea [for L to stay the night with Mr and Mrs K] but it was Mums choice. [Ms M] initially refused and said ‘he gets what he wants now don't he calls you lot in and you rip our family apart’. [L] left and ran upstairs.”
  • “[Ms M] then started blaming [L] again for [Mr N] being arrested, at this point both I and the Police said that as tensions were so high it would be better for [L] for go to [Mr K’s] for tonight, he suggested a few days but will be led by what [L] wants… I explained to [Ms M] that she needs use this time wisely to reflect on her parenting style…”.
  • L left with Mr K to stay with him.
  1. The next day the Council completed an interim safety plan, as a temporary safeguard for L and his siblings, while the Council and police continued their investigation. The outcomes in the plan included that the Council would carry out weekly visits to L “…and ensure he can remain safe at his uncles reviewed in 6 weeks”.
  2. Three day later, after interviewing L and having his injuries looked at by a doctor, the Council’s social worker and police officers decided the concerns were substantiated. But Mr N’s bail conditions, and the interim safety plan, meant the children were no longer at significant risk. So the Council changed its classification of them to children in need.
  3. The Council’s records also note that L would remain with Mr and Mrs K “…until the matter is resolved”. Its social worker set up an arrangement for L’s transport to school.
  4. Mr K says they had no further visits and unreliable telephone support. The Council’s casenotes have no record of contact after this for over three weeks and only occasional notes after that.
  5. Around six weeks after the initial alert, the Council’s view was “concerns were escalating”. So it changed the case back to child protection (Section 47).
  6. A few days later the Council has a record that Mr K asked for financial help. The Council agreed a £40 “kinship carer support payment”. The Council’s complaint response said it made this payment towards L’s upkeep.
  7. Around 10 days later L had to go to hospital, after an incident when he was at his friend’s home. After he left hospital, L went to stay with a different relative.
  8. Mr and Mrs K complained about how the Council had handled the time when L had been staying with them. Its stage one complaint response said:
    • it had not been able to find information about why L stayed with Mr and Mrs K for several weeks; but
    • its view was it had followed the correct procedure. The Council did not view Mr and Mrs K as family carers.
  9. Mr and Mrs K asked to escalate their complaint. In its stage two response, the Council:
    • reiterated its view that L staying with Mr and Mrs K was a private arrangement. It had not removed L and the police had not used its ‘Powers of Protection’;
    • accepted it had not conducted a review with Mr and Mrs K about how the placement was going. Nor had it discussed a timetable;
    • noted Mr and Mrs K would have had to undergo a formal assessment for a longer term placement;
    • said:

“There is an argument that the longer this process goes on, whether a more formal arrangement could/should have been utilised. However the team feel that the plan was always that [L] would return to his family home and so they did not want to pursue other avenues for [L]. Once again, this was not discussed or explained to Mr [K] so that he could understand the view of social care and give his view/consider his position in this situation”.

    • noted it had given Mr and Mrs K around £120 during the time L was with them. But this was not enough (compared to the Child Benefit rates). So it offered an extra £200 payment.
  1. The Council also outlined the following service improvements:
  • it recognised a need for better communication, (including about financial options) between social care and family/extended family;
  • that its social care teams should prioritise plans for a child moving home as soon as possible, in cases where children were separated from their parents;
  • development training for all team managers in the changes resulting from the complaint (shared across teams);
  • it would give the officers directly involved in the complaint a copy of the stage 2 report “…to ensure learning from this specific complaint”.
  1. Mr and Mrs K complained to the Ombudsman. In response to my enquiries, the Council noted:
    • it had adopted a new social work practice model. It said the new model demanded “lots of robust early communications with the family and extended family”:
    • all staff had undertaken compulsory training between October 2020 and March 2021;
    • the social worker involved in the case no longer worked for the Council. But the other officers involved had received a copy of the complaint;
    • Mr and Mrs K had declined the Council’s offer of an extra £200 payment. (Mr and Mrs K dispute this).

Was there fault by the Council?

  1. It is accepted by all involved that L was a child in need (and at times subject to child protection investigations). So the Council owed L duties under Section 17 (and Section 47). The question is whether the additional duties under Section 20 were in play.
  2. The Council says its view was it was safe for L to remain at home with Ms M, due to the bail conditions on Mr N’s contact there. So the arrangement for L to stay with Mr and Mrs K was a voluntary one. Its response to my enquiries said this was only meant to be for a few days.
  3. For the Council to have the duty to provide accommodation, one of the three factors set out in Section 20(1) of the Act would need to apply (see paragraph 10). In relation to L:
      1. Ms M retained parental responsibility for him;
      2. he was not lost or abandoned; and
      3. Ms M was not prevented from providing him with suitable full-time care.

From this analysis, the Council was not under a mandatory duty to treat L as a looked after child.

  1. Section 20(7) of the Act gives the Council the discretionary power to have treated L as a looked after child if it considered “…that to do so would safeguard or promote the child’s welfare”. The Council’s records suggest it did not view Mr L staying elsewhere as necessary before it visited Ms M. Its notes record that it foresaw the possibility that it might ask a relative for L to stay with them, but that it intended this as a short-term arrangement.
  2. Mr and Mrs K say this changed when the social worker and police officers visited. And the social worker’s intervention amounted to a ‘major role’ in arranging L’s stay with them (see paragraph 14). Although each case depends on the facts, generally, adjudication on whether a council’s involvement did meet this threshold is not something the Ombudsman can decide. That would need the more rigorous and structured procedures of civil litigation to determine. The facts in this complaint are not such that I can reach a balance of probabilities view on this issue.
  3. However, the day after its initial visit, the Council wrote an interim safety plan. Included in this plan were weekly visits to L. And that the Council would review the arrangements (including L staying with Mr and Mrs K) in six weeks. A few days after that, the Council noted L would stay with Mr and Mrs K “until the matter is resolved”. In response to my first draft decision, Mr and Mrs K note that, in effect, the Council was giving itself the power to decide when L went home – showing the major role it was playing.
  4. The preceding paragraphs illustrate how, soon after the first visit, the Council’s view changed. Initially it said L should stay with Mr and Mrs for a ‘few days’. I cannot see any record of discussion with Mr and Mrs K about this changing. However, the reality was that Ms M retained parental responsibility. She could have asked for L to go home. So I cannot agree that the Council alone was deciding where L was going to stay. But Mr and Mrs K’s comment does further highlight the lack of communication with them (and they say also with Ms M) about the arrangements. It also raises the possibility that things might have been different if the Council discussed matters with them. I find fault with that poor communication.
  5. The Council’s own policy (see paragraph 16) says issues around housing children are “not always be easy to determine”. And that officers need to consider the circumstances on a case-by-case basis. So I would have expected the Council to have records it had considered whether L’s status had changed, after the Council changed its view about for how long L’s stay would be. The Ombudsman cannot determine what the outcome of any reconsideration would have been. But I do find fault that the Council did not review this.
  6. The Council has accepted other communications with Mr and Mrs K were lacking. I agree. At a minimum, it should have:
    • explained to Mr and Mrs K early in the process that its view was L staying with them was an interim measure;
    • made clear that Ms M retained parental responsibility;
    • noted what financial support that might be available;
    • visited L weekly and kept the arrangement under review, as set out in its safety plan;
    • continued a discussion with Mr and Mrs K about how long L was likely to stay with them.

Without those communications it is not surprising that Mr and Mrs K were confused about the status of L and his stay with them. It also meant the Council missed the opportunity to reconsider and review the situation. I find fault.

Did the fault cause an injustice?

  1. I cannot now decide whether, if the Council had acted without fault, it would have decided L was a looked after child and Mr and Mrs K were foster carers. But the faults I have found will have likely led to some avoidable uncertainty, stress, inconvenience and a potential lost opportunity. That is an injustice that demands a remedy.

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Recommended action

  1. I recommended that, within a month of my final decision, the Council:
    • pay Mr and Mrs K the £200 it has already offered them;
    • pay Mr and Mrs K an additional £400 as a symbolic payment in recognition of the avoidable distress the faults led to; and
    • write Mr and Mrs K a letter of apology.
  2. The Council has identified several learning points from this complaint. In addition to these, I asked that it agree to provide a copy of this statement to the officers involved in the events under complaint.
  3. The Council has agreed to these recommendations.

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Final decision

  1. I uphold this complaint. I have made recommendations with which the Council has agreed. So I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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