Essex County Council (20 006 635)

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

Decision : Upheld

Decision date : 04 May 2021

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to follow the course of action it set out when a young person came to live with her. The Council was at fault in how it shared information with Mrs X and dealt with her complaints. This caused her uncertainty. The Council will apologise to Mrs X and remind staff they must give suitable information to potential informal carers.

The complaint

  1. Mrs X complained the Council failed to follow the course of action it set out when a young person, Mr Y, came to live with her.
  2. Mrs X said this meant she entered into a private family arrangement without her knowledge. She said this caused her stress and anxiety, family upheaval and financial harm. She also said the Council left Mr Y would proper support.

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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. 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)
  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)
  4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended). Mr Y has consented for Mrs X to complain on his behalf. I am satisfied Mrs X is a suitable representative for Mr Y.

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How I considered this complaint

  1. I have considered:
    • all the information Mrs X provided and discussed the complaint with her;
    • the Council’s comments about the complaint and the supporting documents it provided; and
    • the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
  2. Mrs X 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 law and guidance

Child protection

  1. Anyone who has concerns about a child’s welfare should make a referral to local authority children’s social care team. The council must then consider the referral and decide what action to take. One option is to carry out an assessment. The assessment aims to gather information about the needs of the child and their family and decide the level of risk to the child. This is often called a ‘Child and Family Assessment’.

Child in need and looked after children

  1. The Children Act 1989 defines a child in need as one who is under 18 years of age and:
    • needs local authority services to achieve or maintain a reasonable standard of health or development; or
    • needs local authority services to prevent significant further harm to health or development; or
    • is disabled
  2. A looked after child is any child who is accommodated away from their family either by care order or voluntarily under section 20 of the Children Act. This is where the child needs accommodation because:
    • there is no one with parental responsibility; or
    • they have been lost or abandoned; or
    • the person who has been caring for them has been prevented (for any reason) from providing suitable accommodation or care.
  3. The Council has four tiers of support available to children and families in its area.
    • level one is universal services, suitable for children who are making good progress;
    • level two is early help services for children who are struggling, to prevent their needs increasing;
    • level three involves more complex support. This includes the Council's ‘Family Solutions’ service; and
    • level four is for children that are in need or at risk.

Children not living with their parents

  1. When a child can no longer live with their parents, there are a range of possible arrangements that can be made for them. A council’s duties to the child depend on the type of arrangement and whether the chid is considered a child in need or a looked after child.
  2. Family and friends foster care is where the council places a child in need with a family member or friend of the family. The foster carer is subject to the same checks as a professional foster carer and receives an allowance. The child receives increased support.
  3. A private family arrangement is where the child is living with a relative, friend or other person with a previous connection to their family on an informal basis. Parental and financial responsibility remains with the child’s parents. Councils do not have a duty to assess private family arrangements. They do not have to provide support, including financial support, unless the child is in need.

Complaints handling

  1. ‘Children's social care: getting the best from complaints’ is the statutory guidance on children’s complaints. The guidance says councils should investigate complaints from any person the council consider has sufficient interest in the child.
  2. The Council's corporate complaints procedure has one stage. If the complainant is acting on behalf of someone else, the Council requires consent.
  3. Neither complaint procedure specifies a person complaining on behalf of a child or young person must have parental responsibility for them. Parental responsibility is defined as the rights, duties and powers a parent has over their child. Carers do not usually have parental responsibility.

What happened

  1. In October 2019, there was an incident at Mr Y’s home. Mr Y left the family home and went to stay with Mrs X and her family. The Council was told about the incident roughly a week later. It decided the issues raised were serious enough to warrant a Child and Family Assessment.
  2. In early November, a Council social worker visited Mr Y at Mrs X’s home as part of its assessment. Council records state:
    • Mr Y said he did not want to return home but knew he could. He said he would return at some point;
    • Mrs X said Mr Y was welcome to stay as long as he wanted and her family could support him;
    • Mr Y said he did not want support from the Council; and
    • Mr Y was sixteen and capable of making decisions about his living arrangements.
  3. The Council also considered the views and history of Mr Y’s family members, their past involvement with the Council and Mr Y’s home environment. It decided Mr Y was not a ‘child in need’ and there was no role for social care. It closed the case. The Council has accepted it failed to tell Mr Y it closed his case. It said it would learn from the mistake.
  4. Mrs X disputes some parts of the Council's record. She says:
    • at the meeting she told the social worker she was willing to be part of the solution for Mr Y as he was vulnerable;
    • the social worker said that if Mr Y was going to stay with her, the Council would have to carry out a formal process to confirm she was a suitable carer;
    • the social worker said the best approach would be to try and repair Mr Y’s relationship with his family so he could return home; and
    • to achieve this, the social worker suggested Mr Y would benefit from level three support. They offered to refer Mr Y to the Council’s Family Solutions team, which Mr Y agreed to.
  5. Three months later, in early February 2020, Mrs X wrote to the Council to say there was no prospect Mr Y would return to living with his family. She asked the Council to review the situation and asked if any financial support was available. The Council responded to say social care was not involved with Mr Y so it could not help.
  6. Mrs X complained to the Council in June 2020. The Council responded using its corporate complaints procedure. I asked the Council why it did not use the children’s statutory complaints procedure. The Council said it was because Mrs X did not have parental responsibility for Mr Y.
  7. In its complaint response, the Council said it could not respond in detail without Mr Y’s consent. It said Mr Y was living with Mrs X as part of a private family arrangement so it did not have a role in his care.
  8. Mrs X asked the Council what consent it needed and disputed the statements in its response. The Council did not reply to Mrs X’s question about the consent and repeated its previous response. In answer to my enquiries, the Council said its failure to reply to Mrs X’s question was an oversight. However, it said Mr Y’s consent would not have changed its response because Mrs X did not have parental responsibility.

Findings

Arrangement

  1. The Ombudsman cannot question a Council's decision if it is made without fault. The Council carried out an appropriate assessment of the risks to Mr Y and his needs. It decided he did not meet the threshold to be a child in need. There was no fault in its assessment. As Mr Y was not a child in need, and the Council was not involved in deciding he should live with Mrs X or placing him there, he was living with her under a private family arrangement.
  2. The Council can provide services to any child in its area to prevent their needs increasing. Mrs X says the Council offered Mr Y access to its Family Solutions service but did not provide it. The Council records dispute this and say Mr Y refused Council support. As I was not at the visit, I cannot confirm what was said and therefore cannot make a judgement on this matter. In any event, I do not consider that Mr Y accepting the help of Family Solutions would have affected whether the Council considered him a child in need. This is because Family Solutions support is provided under level three of the Council's services whereas children in need receive help under level four.
  3. The Council failed to communicate with Mr Y properly. It has accepted it did not tell Mr Y when it closed his case and says it will learn from the mistake. This is a suitable response.
  4. In addition, the Council did not communicate clearly with Mrs X. Once the Council decided it was ending its involvement in Mr Y’s case, it should have given Mrs X sufficient information about private family arrangements. This would have allowed her to make an informed decision about whether she wanted to continue to care for Mr Y. It is clear from the records that while Mrs X was willing to keep helping Mr Y, she was unaware of the type of caring arrangement she was in, and therefore what support might be available to her. The Council's fault caused Mrs X avoidable distress and uncertainty.

Complaints handling

  1. The statutory guidance for complaints about children’s services says councils should consider complaints from any person they consider has sufficient interest in the child they are complaining for. It does not require the person to have parental responsibility. The Council was at fault for failing to consider whether Mrs X was a suitable person to complain on behalf of Mr Y.
  2. The Council used its corporate complaint policy to respond to Mrs X. It initially responded in brief as it did not have Mr Y’s consent to investigate. This was a suitable response because it needed Mr Y’s consent before sharing personal information about him. However, the Council did not answer Mrs X when she asked what consent was needed. This was fault and prevented her from receiving a full and fair response to her concerns.
  3. The Council says Mr Y’s consent would not have changed its complaint response as Mrs X did not have parental responsibility. The Council's policy does not require complainants to have parental responsibility. I am concerned the Council's approach risks preventing individuals who care for children from complaining about issues that affect them and the children they care for.

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Agreed action

  1. Within one month of the date of my final decision, the Council will apologise to Mrs X for failing to give her sufficient information about her caring options and for failing to consider her complaint properly.
  2. Within three months of the date of my final decision, the Council will:
    • remind staff they must share appropriate information about the different arrangements for caring for someone else’s children with potential carers; and
    • remind staff parental responsibility is not a requirement for an adult to make a corporate or statutory complaint on behalf of a child. The adult’s interest in the child should be considered on a case by case basis.
  3. Many councils have information leaflets or factsheets which set out the types of care arrangements for children who are not living with their parents and the support available to their carers. If the Council does not have a leaflet, it will:
    • consider whether to produce one; and
    • if it decides to produce one, send the Ombudsman an action plan for its completion.
  4. It will do this within three months of the date of my final decision.

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Final decision

  1. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman

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