Summary: Ms X complained the Council wrongly treated her granddaughter’s placement with her as a private arrangement and failed to provide any practical or financial support between May and October 2017. Ms X also complained the Council failed to establish her granddaughter’s status and delayed in applying for a passport and citizenship. The failings in the way the Council dealt with Z’s placement with Ms X and in the level of support it provided amount to fault. As does the delay in applying for or supporting Ms X in applying for Z’s passport. These faults have cause Ms X and Z an injustice.

The complaint

1. The complainant, whom I shall refer to as Ms X complained the Council wrongly treated her granddaughter’s placement with her as a private arrangement and failed to provide any practical or financial support between May and October 2017. Ms X also complained the Council failed to establish her granddaughter’s status and delayed in applying for a passport and citizenship.
2. In addition, Ms X complained the Council failed to respond to her correspondence and complaints in a full and timely manner, causing her to incur legal fees.
3. Ms X is assisted in making this complaint by her representative Miss Y.

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The Ombudsman’s role and powers

4. 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)
5. 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)

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss Y;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Miss Y;
• Ms X, Miss Y 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

The law on children in need

7. The law 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. (Children Act 1989, section 17)

Councils' duty to provide accommodation to a child in need

8. The law says 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 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. (Children Act 1989, section 20)
9. The law requires councils to firstly consider a placement with parents, then family and friends who are willing and able to act as foster carers before considering unrelated foster carers. (Children Act 1989, section 22C)
10. If the council makes arrangements for a child to be accommodated by someone other than its parents, the council 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'.

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

11. 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. Other unrelated people can take on the care of a child under a private fostering arrangement made with the parent. Under these two arrangements there is no right to any financial support from any 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. Councils must assess private fostering arrangements with unrelated people if the care of the child is likely to be for more than 28 days.
12. 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 where a council takes a major role in making arrangements for the child to be fostered it is likely to conclude it is acting under its duties to provide the child with accommodation. 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)

Special Guardianship

13. A Special Guardianship Order (SGO) is a court order that gives a carer parental responsibility for a child. The Special Guardianship Regulations 2005 set out the Council’s duties when an SGO is made including possible support services such as counselling, advice, information, and financial support.
14. In cases where the special guardian was the child’s foster carer immediately prior to the making of the SGO, the council must complete an assessment for special guardianship support services, including financial support. The financial support provided is called Special Guardianship Allowance. The regulations set out how this should be calculated and that it should have regard to the amount of fostering allowance which would have been paid if the child continued to be fostered. The assessment must also take account of the child’s needs and the family’s financial resources, including benefits and outgoings.

What happened here

15. On 20 May 2017 the Council asked Ms X to care for her granddaughter, Z, when she refused to return home from school. Ms X complains that rather than an officer bringing her granddaughter to her, the Council sent Z alone in a taxi to Ms X’s home.
16. The Council initially considered Z was staying with Ms X under a private arrangement and did not provide any financial support. Ms X disputed it was a private arrangement and maintained it was a foster placement. She states the lack of financial support caused her hardship. Ms X was a foster carer specialising in parent and child placements and had a mother and baby staying with her when Z arrived. Ms X received £625 each week for this placement but had to end it in order to care for Z. She complains she lost earnings and had to pawn her jewellery to provide for herself and Z.
17. The Council carried out a Child and family assessment which concluded in July 2017, following which the Council began to pay Ms X an allowance of £232 per week. Based on Ms X’s previous experiences with the Council she states she initially refused to be assessed or apply for an SGO.
18. In October 2017 the Council was granted an Interim Care Order for Z and in November 2017 agreed to pay Ms X a full kinship carers allowance of £437 per week. The Council initially backdated this payment to 6 October 2017 but in March 2018 agreed it should be backdated to May 2017. Ms X states the Council did not inform her it would make these payments.
19. Ms X was granted a SGO in June 2018 and continues to receive an allowance.
20. In addition to financial support, Ms X asked the Council to apply for a passport for Z. She asserted it was the Council’s responsibility to secure this. The Independent Reviewing Officer (IRO) at a Looked After Child meeting in October 2017 asked Z’s social worker to facilitate this application. As this did not progress, Ms X then asked Z’s new social worker to apply for a passport in November 2018. Enquiries with the Home Office at this time identified that Z had no status as her parents were not married and her mother was not a British citizen. Ms X complains the Council advised her to resolve Z’s citizenship herself and did not support her.
21. In October 2019 Ms X sought legal advice. Her solicitors wrote to the Council requesting the backdated payments of £437. They also made a formal complaint about the difficulties they and Ms X had experienced in contacting officers and getting responses and the delay in obtaining Z’s passport.
22. The Council’s response to the complaint acknowledged it had not replied to the majority of Ms X’s emails and apologised for the distress this had caused. It suggested she contact the SG support worker if she wanted practical advice and guidance. The Council noted Ms X was now receiving financial support and acknowledged there was a delay in the initial payments as Z’s status as a looked after child had not been confirmed.
23. In addition, the Council acknowledged it had provided only limited support in relation to the application for Z’s passport. It confirmed it had now reimbursed Ms X the cost of the citizenship registration, biometric testing, checking fees and the passport application fee.
24. As Ms X was not satisfied she asked for her complaint to be considered further. The Council’s stage two investigation considered five heads of complaint:
1. The complaint response did not address all areas of her complaint, in particular her loss of income between 20 May and 5 October 2017;
2. Z was transported to Ms X unaccompanied in a taxi in May 2017; and the Council had wrongly suggested Ms X had entered into a private arrangement to care for Z;
3. Although the Council has funded Z’s citizenship and passport applications, it had not considered its failings in not disclosing Z’s status within the SG assessment. And there was a delay in the Council making the application as this was tasked to a social worker in 2017.
4. There was a lack of practical support for Ms X and a lack of recognition of the impact the situation had on them; and
5. There were delays in dealing with communications and a lack of appropriate remedy.
25. The investigating officer upheld complaints 1, 2, 4 and 5. They made no finding in relation to the first element of complaint 3 and upheld the second part in relation to delay.
26. The Council accepted the investigating officer’s findings and recommendations and wrote to Ms X setting out the action it would take. In relation to Ms X’s request for compensation the Council offered £550, made up of £100 for Ms X’s time and trouble, £200 in recognition of the delays, £150 in recognition of the distress caused and £100 in recognition of the general failings in service.
27. The Council then held two resolution meetings to discuss the action to be taken. This included completing the application for a passport, carrying out a Child and Family assessment, providing a breakdown of the payments made to Ms X and consideration of Ms X’s legal fees.
28. A third resolution meeting scheduled for January 2021 was cancelled. Ms X remains unhappy with the Council’s actions and Miss Y has asked the Ombudsman to investigate her concerns.
29. Miss Y states Ms X’s experience with the Council has caused much frustration, dissatisfaction, and further trauma. She questions why the Council was not aware of Z’s citizenship status during the SGO application process. She also maintains that she has not received the payments due for the period May to October 2017 when the Council considered Ms X was caring for Z under a private arrangement.
30. In response to my enquiries the Council states the delay in providing support was due to the case being dealt with by agency workers who understood the placement was a family arrangement. It states that when permanent staff came into post the case was investigated and payments were instated. The Council notes it has apologised to Ms X for this delay.
31. The Council’s records show Ms X has received backdated payments totalling £7,932.26. These payments were broken down as follows:
• £2419.42 on 23 March 2018. This equates to £232 per week for the period 26 July 2017 to 6 October 2017.
• £1822.84 on 23 May 2018. This equates to £232 per week for the period 31 May 2017 to 25 July 2017. And
• £3690 on 4 July 2018. This equates to £205 per week from 31 May 2017 for 18 weeks.
32. The £205 is a backdated payment for the carer element of the placement and £232 was for the child element. The Council states it has backdated payments to 31 May 2017 as this is the date a social worker visited and agreed that it was a placement.

Analysis

33. It is clear from the documentation that there were failings in the way the Council dealt with Z’s placement with Ms X and in the level of support it provided. The Council initially denied placing Z with Ms X and did not provide any financial or practical support for several months. It also delayed in applying for or supporting Ms X in applying for Z’s passport and did not respond to Ms X’s correspondence and queries in a prompt manner. These failings amount to fault.
34. The Council does not dispute these failings and upheld Ms X’s complaints. It has also taken action to address the failings. The Council has apologised and agreed to pay Ms X a full kinship allowance of £437 per week, backdated to 31 May 2017. It has also now paid for and assisted Ms X in applying for citizenship and a passport for Z. And has paid a total of £550 to recognise the time and trouble, delays, distress caused and failings in service Ms X has experienced.
35. This is to be welcomed, but I do not consider the Council has fully redressed its failings. The payment of £550 is in line with our guidance on remedies. Ms X states she experienced financial hardship as a result of the delay in receiving the kinship allowance, but I have not received any evidence of this. The child and family assessment in July 2017 and the viability assessment in September 2017 both note that Ms X was reluctant to have her finances assessed and was not forthcoming in disclosing her financial situation.
36. I also note the Council’s case notes state Ms X asked for Z’s passport in June 2017 so that she could plan a trip during the summer. I have not received copies of the Looked After Child review meetings but note that the IRO told the stage two complaint investigation that they had recommended the social worker facilitate an application for Z’s passport as Ms X was planning a trip to Disneyland. These plans for trips abroad do not suggest financial hardship.
37. However, I consider there is still a shortfall in the backdated kinship allowance. The Council states it backdated the allowance to 31 May 2017 as this is the date a social worker visited and agreed that it was a placement. However, the documents do not support this assertion. It is clear the Council maintained Z was with Ms X under a private arrangement for several months after this meeting and had not agreed on 31 May 2017 that it was a placement. In any event, having accepted it had placed Z with Ms X, I would have expected the Council to backdate the allowance to the first date of the placement, that is 20 May 2017.
38. I also consider there has been an injustice to Z in the delay in applying for her passport. The documentation does not suggest the Council should have been aware from the outset of any complications with the application. The assessment for the special guardianship order states that Z’s mother reported marrying Z’s father two years before Z was born and then divorcing him several years later.
39. However, had the Council applied, or supported Ms X to apply for the passport in 2017 as requested by the IRO, the situation would have come to light, and could have been addressed sooner. Z has been unable to leave the country and has experienced anxiety and uncertainty around her status for a prolonged period.

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Agreed action

40. The Council has agreed to pay Ms X backdated kinship allowance for the period 20 May to 30 May 2017 in the sum of £624.30.
41. The Council has also agreed to apologise to Z and pay her £200 in recognition of the distress and uncertainty the delay in applying for or supporting Ms X to apply for her passport has caused.
42. The Council should take this action within one month of the final decision on this complaint.

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Final decision

43. The failings in the way the Council dealt with Z’s placement with Ms X and in the level of support it provided amount to fault. As does the delay in applying for or supporting Ms X in applying for Z’s passport. These faults have caused Ms X and Z an injustice.

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Investigator's decision on behalf of the Ombudsman