Summary: We will not investigate Ms X’s complaint the Council has refused to treat her grandson, child A, as a looked after child and pay allowances from 2018. Also, that it has delayed pursuing the possibility of a special guardianship order. Ms X complains late about the history of the case and there is no good reason to exercise discretion to investigate. Ms X should take her own legal advice about applying to court.

The complaint

1. Ms X complains the Council placed her grandson, child A, with her in September 2018 and has refused financial help because it wrongly says it was a family arrangement. Ms X says the Council should have treated child A as a ‘looked after child’ in its care, as it did on an earlier occasion, and paid a weekly allowance.
2. Ms X complains in 2018 the Council’s social worker told her she would be assessed for a special guardianship order which includes weekly payments and expenses. Ms X says the Council’s second social worker changed the position and told her to apply to court for a child arrangement order. She says the Council offered to pay the cost of her solicitor. However, she was advised not to pursue this option because it does not include financial help. Ms X says the Council is now assessing her for an application to court for special guardianship. However, it says financial help would only start from the date of the application. Ms X says the Council should provide financial support from the date child A moved to her in 2018.

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The Ombudsman’s role and powers

3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
4. 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)

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How I considered this complaint

5. I have considered Ms X’s information and comments. I have discussed the complaint with Ms X by telephone and considered her information sent further to the draft decision statement. The Council has supplied the legal correspondence and its complaint replies.

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What I found

6. Where the Council places a child with a family it can be considered to be a child in care who should be financially supported. The Children Act 1989 (section 14) allows a person to apply for a special guardianship order to secure the care of a child and obtain parental responsibility. Before applying to court the person must give a council 3 months written notice of the intention to apply. A council has a duty to report to the court on the suitability of the person to care for the child. The Council tells me an assessment for financial support is part of the procedure. It would pay any allowance from the date of the court order.
7. There was a history of concerns about child A’s welfare when living with his mother. For some 18 months until February 2012 the Council placed child A with his grandmother, Ms X. It treated child A as being a ‘looked after child’ (Children Act 1989, section 20 care) and paid Ms X allowances. The Council says it closed the case in February 2017.
8. In September 2018, the Council reopened the case following a referral from the police. Ms X started to care for child A full time due to the circumstances of his mother. The Council says in April 2019 it agreed to contribute £750 for Ms X to take legal advice and make an application for a child arrangement order. It says the mother of child A was not willing to agree to a special guardianship order.
9. Ms X tells me she took advice from “Grandparents Plus” who put her in contact with a solicitor. On 10 December 2019 Ms X’s solicitor wrote to the Council and threatened to take judicial review proceedings at court. The letter explains what happened and refers to case law on such disputes about whether a council has made the placement. The letter gave the Council until 24 December 2019 to reply. The letter says Ms X had been caring for child A for ‘prolonged periods’ before September 2018 but does not give details.
10. On 21 January 2020, the Council’s solicitor replied rejecting Ms X’s claim and argument on the facts. The Council says it has evidence child A was living with Ms X from March 2018 for 5 nights a week on a shared care basis and later 6 nights per week. This was during the period when the case was closed to the Council. It had no record of advising Ms X, or child A’s school, to refuse mother taking child A home.
11. On 31 January 2020 Ms X’s solicitor provided her with a copy of the Council’s reply to the claim. Ms X was advised that under the current agreement the solicitor could not progress the matter further. She advised Ms X to do a freedom of information to the Council to see the records and if necessary complain about them. She advised that if the records supported the Council’s statements it would not be possible to challenge the Council’s position. Ms X was advised she could look into making an application to court for a child arrangement order or special guardianship order. Information could be given about that but she might wish to consider using a local solicitor.
12. The Council says Ms X had some contact with its solicitor and was advised to take her own legal advice. Ms X tells me she complained to the Council in May 2020.
13. On 27 November 2020 (service manager) and 22 March 2021 (complaints section), the Council wrote to Ms X confirming its position explained in the legal letter of January 2020. It repeated that Ms X should take advice from her solicitor.
14. On 22 March 2021, the Ombudsman received Ms X’s complaint.
15. Further to my conversation with Ms X she has provided information including:
1. An undated letter from the father of child A saying a social worker had telephoned him in October 2018. He was told child A had moved to Ms X and was asked if he had any objection.
2. A letter from the mother of child A, dated 24 August 2020, saying he had moved to Ms X in September 2018. She told a social worker she was against the move and the idea of a special guardianship order. She agreed the move was temporary and thought she would get help from the social worker.
3. Ms X has written on the documents: that in 2018 child A ‘was staying a lot since March as he did not like mother’s boyfriend, this does not mean he was living here. He was staying at home also up until social services visit mostly through the week’. Ms X also says child A was ‘just staying at weekend until social work visit’. She was told not to send him back to his mother due to the circumstances.

Analysis

16. I will not investigate Ms X’s complaint for the following reasons:
17. The complaint is outside the Ombudsman’s jurisdiction because Ms X complains late and outside the 12 month ‘permitted period’ (see paragraph 4 above). This includes the events of 2018 leading to child A moving to Ms X, the Council’s decision in 2019 to support a child arrangement application, and the Council’s rejection of her solicitor’s claim in January 2020. Ms X knew in the Autumn of 2018 that the Council had decided it was not responsible for the placement in contrast to events in 2011/2012.
18. I will not exercise discretion to investigate for the following reasons:
1. Ms X could have complained sooner. This is especially so given the history of the case and her having independent advice.
2. Investigation is not likely to achieve what Ms X wants given there is a dispute about the facts and the evidence is not straight forward.
19. I will not investigate the handling of the special guardianship position. It is for Ms X to decide if she wants to apply to court. The Council has advised Ms X to take her own legal advice on several occasions. In January 2020, her solicitor offered to give her information about the procedure. There are rules about applying for guardianship and it is important Ms X takes her own legal advice.

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Final decision

20. The Ombudsman will not investigate Ms X’s complaint the Council has refused to treat her grandson, child A, as a looked after child and pay allowances from 2018. Also, that it has delayed pursuing the possibility of a special guardianship order. Ms X complains late and there is no good reason to exercise discretion to investigate. Ms X should take her own legal advice about applying to court.

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Investigator's decision on behalf of the Ombudsman