Decision : Upheld
Decision date : 03 Dec 2021
The Ombudsman's final decision:
Summary: Mr B complained the Council did not provide financial support when he took on responsibility for his granddaughter shortly after she was born in 2005. He said he suffered financial difficulties in providing care for her. There was fault by the Council which caused injustice to Mr B. The Council will make a payment to him.
- I refer to the complainant as Mr B. He complained the Council did not provide financial support when he took on responsibility for his granddaughter shortly after she was born in 2005. He said he suffered financial difficulties in providing care for her.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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)
- 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)
How I considered this complaint
- I considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.
- 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.
What I found
Summary of the relevant legal framework and guidance
- The key events relevant to this complain happened 16 years ago so the relevant law and guidance is that which was in place at the time, although much remains the same now.
- Where councils consider that a child should be removed from their parents, they can seek to obtain an emergency protection order to remove the child immediately. Alternatively, the council can apply to the Family Court for an interim care order. If the Court grants this, it will allow councils to share parental responsibility with the parents.
- Under both orders, the child becomes known as a ‘looked after’ child and the council has specific duties to safeguard and promote the child’s welfare.
- Councils also have a duty, under section 20 (s20) of the Children Act 1989, 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 having been abandoned;
- 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.
- Mr B’s daughter, Ms C, had a baby in early 2005, I will refer to her as X. Ms C was using drugs and the Council placed X on the child protection register as soon as she was born. Ms C and the baby returned to her mother’s house. Ms C’s drug use continued.
- The Council’s records show it considered Ms C was unable to provide suitable care for her children and it decided to remove X from Ms C’s care and place her with family members, or, alternatively, she would be placed with foster carers.
- Mr B was willing to look after X and the Council recommended he should apply for a Residence Order which he did and was granted when X was six months old.
- The Council removed X from the child protection register 11 months after she was born and closed the case five months later as there were no concerns with the care Mr B was providing for her.
- The Council was involved on a couple of occasions with Mr B and X over the years but it never had any concerns about the care Mr B was providing.
- In 2020 Mr B had some support from an organisation that supports kinship carers and learnt he may have been entitled to financial support for looking after X. He raised this with the Council.
- The Council considered the complaint under the statutory children complaint process. It concluded it was a private family arrangement that X had come to live with Mr B and therefore there would have been no basis for making any payments to him.
- The events at the heart of this complaint happened over 16 years ago. However Mr B was only aware recently that there may have been some fault by the Council and he pursued the matter since then.
- Generally we cannot investigate complaints that happened along time ago. This is because the records are insufficient to enable us to reach safe conclusions. But here the information the Council still holds is sufficient for me to be able to reach a view.
- Matters came to a head with Ms C’s care of X when she was four months old. The Council considered Ms C could not provide appropriate care and X should be removed to stay either with a family member or a foster placement would be found. Mr B signed an agreement to provide full-time care for X while more long-term plans were agreed. He also agreed to supervise all contact between Ms C and X. The Council advised Mr B to seek a Residence Order.
- In correspondence to Mr B’s mortgage company from the social worker she said that were it not for Mr B’s support the Council would have had no alternative but to place X in to care.
- When the Council investigated Mr B’s complaint it said there was no basis for it to make any payments to him as this had been a private family arrangement. This is not supported by the Council’s own records. Ms C did not agree with the proposed arrangements and the Council was clear it would take legal advice about starting formal action if she did not agree. This demonstrates that it could not have been a private family arrangement.
- In 2007, the courts clarified what should happen in these circumstances. Where a Residence Order had been granted but, had it not been, the child would have become ‘looked after’ by the Council then a council’s policy on Residence Order Allowance should take account of the duties it would have been under, as well as the means and needs of the family, when deciding whether to pay a Residence Order Allowance. However this was not making new law; only confirming what should already be happening.
- Based on the information from the Council’s records, this was not a private family arrangement and, on the balance of probabilities. had it not happened then X would have become ‘looked after’ by the Council. In these circumstances the Council would have been under a duty to consider paying an allowance to Mr B. As I understand it Mr B experienced financial difficulties when he started caring for X because of the impact on the hours he could work. On the balance of probabilities it is reasonable to conclude the Council would have paid him an allowance. The amount of the allowance might have changed over the years depending on Mr B’s circumstances. I understand Mr B may have been receiving benefits for some, or all, of the period which would have been affected by any payments by the Council.
- My conclusion is there was fault by the Council in its assessment of its duties to Mr B and that meant he did not receive an allowance to which he would have been entitled. It will be difficult to assess what Mr B would have been entitled to and what that would have meant for his entitlement for benefits. But I consider the fair way forward is for the Council to attempt to calculate what Mr B’s entitlement would have been from the point he started caring for X. And then to make the appropriate payment to him.
- The Council will:
- apologise to Mr B within one month of the final decision;
- calculate what Mr B’s entitlement to an allowance would have been for the period he has cared for X. In doing so it should consider the impact this would have had on any benefit entitlement and generally Mr B’s circumstances. It should tell us of the proposed payment and the basis for it. It should then make an appropriate payment to him. This should be completed within two months of the decision.
- There was fault to Mr B which caused him injustice.
Investigator's decision on behalf of the Ombudsman