Summary: Ms X complained the Council has refused to provide her with financial support after she started caring for her grandchildren, E and F, when their mother went into a rehabilitation centre. The Council was not at fault because the arrangement for E and F to live with Ms X was a private family arrangement. F then lived with Ms X on a permanent basis under a child arrangement order following court proceedings which Ms X began independently from the Council.

The complaint

1. Ms X complains the Council incorrectly decided her grandchildren, E and F, lived with her under a private family arrangement. Ms X says the Council was involved in accommodating F with her when their mother, Ms Y went into a rehabilitation centre.
2. Ms X says she has lost out on financial support from the Council to help her look after F.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
4. 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

5. I considered Ms X’s complaint and information she provided.
6. I considered the Council’s response to my enquiry letter.
7. I considered relevant legislation, statutory guidance and relevant caselaw. including the London Borough of Southwark v D [2007] EWCA Civ 182.
8. Ms X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Arrangements for the care of a child

9. Where those with parental responsibility are unable to care for a child, a child may be cared for by friends or family. These arrangements can be made in two ways:
• The child can be “looked after” by the council. Under the Children Act 1989, councils have a duty to accommodate children who appears to the council to require it as a result of: (a) there being no person with parental responsibility for the child; (b) their being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing them with suitable accommodation or care. A council can identify a family member or friend who agrees to foster the child. A council meets its duty to accommodate the child and the person is deemed to be a family and friends foster carer; or
• A private family arrangement. This happens when a close relative agrees with the parent to take on the care of the child. The Council does not have a duty to provide support in these cases but may choose to do so.
10. The courts have considered the question of whether arrangements for a child to live with a relative or friend are truly a private arrangement. In a key case, the Court said where a council has taken a major role in making arrangements for the child to be cared for by the friend or relative, it is likely to have been acting under its duties, under the Children Act, to provide the child with accommodation.
11. A Child Arrangement Order is a private law order that regulates who a child should live with and when they have contact with any person. The person named in the order will have parental responsibility for the child while the order remains in force. Grandparents can apply for these orders, but they will need the permission from the court first.

Financial support for carers

12. If the person becomes a family and friends foster carer, they are entitled to receive a fostering allowance and other practical support from the council for them and the child. A fostering allowance is provided to cover the cost of caring for the child.
13. If the arrangement is a private family arrangement, those holding parental responsibility for the child continue to be responsible for the financial arrangements to care for the child.

The Council’s Child Arrangement Order Allowance policy

14. There is no right to a Child arrangement Order Allowance. However, councils have the choice to pay such an allowance where this is the most appropriate way to safeguard and promote the welfare of the child.
15. The Council’s criteria for paying a Child Arrangement Order Allowance are as follows:
• Where a carer applies successfully for a Child Arrangement Order with the support of the Council, the Council will provide a Child Arrangement Order Allowance.
• Where a Child Arrangement Order is made in favour of a relative in private law proceedings, it will be unusual for an allowance to be paid unless the order has been applied for with the Council’s support as a clear alternative to care proceedings. Any payment under these criteria would be at the Council’s discretion.

What happened

16. Ms Y has three children, D, E and F and lived with her partner Mr T. Mr T is father to child D only. Ms X is Ms Y’s mother and grandmother to child’s E and F. Records show Ms Y has a history of issues around her mental health, and drugs and alcohol. Records show the Council had minimal involvement with Ms Y and the wider family and had no concerns about her ability to provide the children with suitable accommodation or care.
17. In 2020 Ms X started private law proceedings around obtaining regular contact with her grandchildren, E and F. The court ordered the Council to submit a report with its views which it did in July 2020. The report recommended the children remain in the care of their mother Ms Y, but for Ms X to have regular contact.
18. In November 2020 Ms Y contacted the Council and said he was going into a rehabilitation centre for around three months to help with her issues around drugs and alcohol. Records show Ms Y told the Council that Ms X was supportive and had offered to look after and care for E and F during the week and then stay with Mr T and D at the weekends. This arrangement commenced shortly after.
19. Records show in January 2021 that child E left the care of Ms X and went to live with Mr T. Case records show F wanted to continue living with Ms X. The Council provided the court with a further report which reflected F’s views that she wished to live with Ms X. However, the Council’s recommendation in the private law proceedings was for the children to remain in the care of their mother, Ms Y at the conclusion of her rehabilitation. The records show Ms Y stopped giving Ms X money to care for her children in January 2021.
20. In March 2021 Ms Y left rehabilitation. The Council held a family group conference which Ms X, Ms Y and Mr T attended. Records show that F’s desire to remain living with Ms X rather than return to live with Ms Y were discussed. Records of the conference show the family agreed that F could remain living with Ms X with the family making arrangements for F to have contact with D and E. The records of the meeting record Ms Y would claim child benefit for F then pay it to Ms X. Ms X would be financially responsible for F and provide everything she needed on a day-to-day basis.
21. In April 2021 the Council held a review family group conference. Records of the conference show the family agreed for the arrangement of F living with Ms X to continue. The notes show Ms Y agreed to claim child benefit for F and transfer this to Ms X each week.
22. In May 2021 the Council provided an addendum report to the court in respect of Ms X’s private proceedings. This recommended F remain in the care of Ms X and to award her parental responsibility.
23. In June 2021 the private law proceedings concluded and the court award Ms X a child arrangement order in respect of F.
24. Records show Ms X asked the Council to provide her with a fostering allowance for F, backdated to November 2020 when she looked after both E and F. The Council however refused and said Ms X was not entitled to financial support as the arrangement to look after E and F was as private one, between Ms X and Ms Y.
25. Ms X complained to the Council about its decision not to provide her with financial support. Ms X felt the Council should have considered E and F as ‘looked after children’. Ms X said Ms Y asked her to look after E and F when she went into rehabilitation on behalf of the Council. Ms X said therefore she should receive a fostering allowance.
26. The Council responded to Ms X’s complaint. It said E and F moved to live with Ms X in November 2020 without its involvement. The Council said F’s permanent move to Ms X’s care was through private proceedings in a court and therefore also a private arrangement. As such it said Ms X did not qualify for support and it had no duty to assess her as a foster carer.
27. The Council says Ms Y did not, and does not, meet its policy criteria for a Child Arrangement Order Allowance for F. This is because the Council was not on the verge of taking care proceedings for E or F, and the order was a private matter, not done at the request of the Council.
28. Ms X remained unhappy and complained to us.

My findings

29. Case law has determined that where a council has taken a major role in arranging for a child to be cared for by a friend or family member then it is likely to have been acting under its duties under the Children Act to provide the child with accommodation.
30. The records show the Council did not play a major part in making arrangements for E and F’s care by Ms X. Instead, the evidence shows the arrangements for E and F to live with Ms X was a private family arrangement with Ms X and Ms Y. This is because:
• Records show Ms Y told the Council Ms X had offered to look after E and F when she went into rehabilitation. This arrangement started without Council involvement.
• Family group conference records show it was a family agreement for F to stay living with Ms X. The same records show Ms X agreed she would be financially responsible for F. Therefore, Ms X was making an informed decision.
• Family conference review minutes show the family agreed that Ms Y would transfer child benefit to Ms X.
• F remained living with Ms X via a child arrangement order which the court granted following private proceedings which were independently started by Ms X.
• Records do not show the Council at anytime considered it necessary to accommodate the E and F and its consistent view was that the children should remain in the care of Ms Y.
31. As the Council did not place E and F into Ms X’s care or play a major part in doing so there is no legal duty for it to support Ms X or provide her with financial support. The financial responsibility to maintain the child remained with Ms Y, as she had parental responsibility. Therefore, the Council is not at fault.
32. The Council has the power to consider if it needs to pay Ms X a Child arrangement Order Allowance to safeguard and promote the welfare of the child. As the Council followed the correct procedure and took account of its policy, there is no fault in the decision it made and so we cannot question its decision.

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Final decision

33. I completed my investigation because the Council was not at fault.

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Investigator's decision on behalf of the Ombudsman