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Torbay Council (21 006 448)

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

Decision : Upheld

Decision date : 09 Jun 2022

The Ombudsman's final decision:

Summary: Ms X complains about the Council handling since it placed two grandchildren (Child Y and Child Z) in her care. The Council was at fault for delays in providing support to Child Y, responding to Ms X’s complaints and completing recommendations made during the children’s statutory complaints process. The Council has agreed to apologise, make payments (to Ms X and Child Y) and work with Ms X to remedy the injustice caused. It will also review the payments made to Ms X and other Special Guardians and provide guidance to staff.

The complaint

  1. The complainant, who I have called Ms X, complains about the Council’s handling since it placed her two grandchildren (Child Y and Child Z) in her care and her complaints about this. Ms X is unhappy the Council:
      1. did not keep to the timescales for action on recommendations from the stage three complaint review panel;
      2. has reneged on agreements to reimburse, and continue paying nursery fees for Child Z and secure therapy for Child Y;
      3. dealt with Ms X in an unfair and unprofessional way since she started caring for Child Y and Child Z;
      4. failed to include Ms X in any reviews of Special Guardian Order (SGO) plans or Special Guardian Allowances since the children were placed in her care; and,
      5. failed to provide support to Ms X and the children so they can thrive.

Ms X says she has experienced significant distress and trauma throughout and in particular while making her complaints to the Council. Ms X is very concerned the children are not getting the support they need from the Council.

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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. If we are satisfied with an organisation’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

  1. I have spoken to Ms X and considered the information she has provided in support of her complaint.
  2. I have considered the information the Council has provided in response to my enquiries.
  3. 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.
  4. Ms 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 legislation and guidance

Child protection and Looked after Children

  1. The Children Act 1989 (the Act) and statutory guidance Working Together to Safeguard Children sets out the council’s responsibilities to safeguard children.
  2. The Act says that, “where a local authority…have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.” (The Children Act 1989, section 47(1)).
  3. Anyone who has concerns about a child’s welfare should make a referral to local authority children’s social care. Where a child is in need of immediate protection the council, the police or the NSPCC must act as soon as possible after the referral if removal is required. The council can apply for an Emergency Protection Order (EPO) or the police can remove the child immediately, who may be placed with family or foster carers while the council completes its enquiries. 
  4. A Looked after Child (LAC) is any child who is subject to a care order or accommodated away from their family by a local authority. The accommodation can be voluntary or by care order. The child becomes looked after when the local authority has accommodated them for a continuous period of longer than 24 hours. (Children Act 1989, section 20)

Family and friends carers and Special Guardianships

  1. Where parents cannot look after their children, some family and friends carers may decide to go to court (sometimes with the help of the council) to gain a Special Guardianship Order (SGO) or Child Arrangement Order for a child. The SGO gives the person with the order some, but not all, parental responsibility for the child. The carer would then be free of the controls placed on LACs and their carers. It allows them to decide such things as the child’s health matters and schooling. Special guardianships are intended to give a firm footing on which to build lifelong relationships between the children and their carers. Overall, a Special Guardianship Order is more secure and can lead to more support from councils than a Child Arrangement Order.
  2. The Special Guardian can ask councils for support. This may include a Special Guardianship Allowance (SGA). Any support, including financial, should be reviewed at least annually, and could be removed. The starting point for calculating SGA is the council’s fostering allowance rate minus child benefit and child tax credit. These are deducted because the Guardian can claim these benefits when professional foster carers cannot. The SGA is also means tested.
  3. The council where the Special Guardian lives is responsible for undertaking an assessment of need and provision of any special guardianship support services in response to that assessment. The only exception to this is where the child is a LAC before the SGO is made. (Special Guardianship Guidance and Regulations 2017, Regulation 5(31))
  4. In 2013, we published a focus report, ‘Family Values: Council services to family and friends who care for others’ children’. The report highlighted common faults in councils’ handling of cases where children were living with family and friends. This noted most family carers are grandparents, older siblings, or aunts and uncles. They may have their own family, work commitments, health or financial problems before taking on the care of their relative’s children. Sometimes family and friends have stepped in to care for a child out of goodwill because they are worried about the possible impact on the child. In the case of young children, often the carer has had to give up work at short notice to care for the child which in turn leads to financial problems for the family. Any extra strain on such a placement could lead to it breaking down.

Children Social Care Complaints

  1. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage two of this procedure, the Council appoints an Investigating Officer (IO) and an Independent Person (IP). The IP is responsible for overseeing the investigation. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review. If a council has investigated something under this procedure, we would not normally re-investigate it unless we considered that investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
  2. The timescales in working days for the procedure are:
  • 10 days at stage one (with a further 10 days for more complex complaints or additional time if an advocate is required);
  • 25 days at stage two (with maximum extension to 65 days);
  • 20 days for the complainant to request a Review Panel;
  • 30 days to meet and hold the Review Panel at stage three;
  • 5 days for the Panel to issue its findings; and,
  • 15 days for the council to respond to the findings.
  1. The council’s stage three response should be developed by the relevant Director/ Director of Children’s Services setting out how the council will respond to the recommendations and what action will be taken. If the council deviates from the panel’s recommendations it should demonstrate its reasoning in the response. In developing a response, the council should invite comment from all the panel attendees (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
  2. In March 2021, we published a Guide for Practitioners on the Children’s statutory complaints process to share our learning about how councils should best apply the regulations and statutory guidance. This guidance explains the start date for calculating the timescale a council has for responding to a stage two complaint is from the date the complainant requests escalation in writing.

Background

  1. This chronology provides details of key events leading up to Ms X’s complaint and does not cover everything that happened.
  2. In July 2018, the police removed Child Y and Child Z from their mother’s care. Child Y and Child Z’s mother (Miss B) is Ms X’s daughter. Child Y was initially placed with their maternal aunt (Ms C) and Child Z was placed with Ms X. In September 2018, Child Y joined their sibling (Child Z) to be cared for by Ms X.
  3. Ms X had asked the Council to consider her request to become Child Y and Child Z’s Special Guardian if they could not return to their mother’s care. Ms C said she would act as a back-up if the Council did not consider Ms X suitable as the children’s Special Guardian on assessment.
  4. In early December 2018, the Council completed a Special Guardian Order (SGO) report. The report stated Ms X was not suitable to act as Special Guardian for the children and recommended the SGO be made in favour of Ms C to care for the children instead. This SGO report was not shared with Ms X or Ms C prior to a court hearing in early January 2019, during which the children’s parents challenged the Council’s recommendations and findings about Ms X and Ms C.
  5. Ms X and Ms C also challenged the content of the Council’s SGO report. The judge agreed to adjourn the court hearing to give the Council time to undertake a further SGO assessment of Ms X and Ms C. The Council completed a further SGO assessment and report in April 2019, which recommended SGOs for Child Y and Child Z be made in Ms X’s favour.
  6. In late June 2020, the Court made an order granting Ms X Special Guardianship for Child Y and Child Z.

Ms X’s complaints

  1. Ms X made a stage one complaint to the Council on 5 March 2020. In it she complained about the way the Council had handled the SGO process for Child Y and Child Z throughout. Ms X was concerned about:
  • the negative content of Council’s first SGO report in December 2018;
  • the Council’s failure to inform her or Ms C of the SGO report’s contents before the court hearing in January 2019;
  • the Council’s failure to include payment of Child Z’s nursery fees as promised in the SGO plan submitted to court when the SGO was granted in June 2019;
  • the Council’s failure to provide support promised to help Child Y with the trauma they experienced while in their parents’ care;
  • her financial situation as Ms X was struggling to pay her mortgage since leaving her job to care for Child Y and Child Z fulltime.
  1. The Council responded to Ms X’s complaints on 3 April 2020. It explained its understanding of what had led to the assessments made of Ms X and Ms C’s respective suitability as Special Guardians. The Council apologised the content of the initial SGO report was not shared with Ms X before the court hearing. The Council explained it had made no commitment to continue paying nursery fees for Child Z beyond the age of three. The Council also confirmed the support both children were receiving through a referral to the NHS Child and Adolescent Mental Health Service (CAMHS). The Council confirmed it was unable to offer Ms X any additional funding to help with her financial situation.
  2. On 1 May 2020, Ms X asked the Council to escalate her complaint to stage two. The Council appointed an Investigating Officer (IO) and Independent Person (IP) to investigate Ms X’s complaints on 15 July 2020. The IO and IP received agreement of Ms X’s statement of complaint on 30 July 2020, which set out the following ten heads of complaint:
      1. The Council recommended Ms C as Special Guardian for Child Y and Child Z, despite her only agreeing to do this as a back-up if the assessment for Ms X was not approved.
      2. The Council failed to advise Ms X and Ms C of the alternative care arrangements for Child Y and Child Z as set out in the Family and Friends Care Guidance (Children Act 1989).
      3. The Council did not inform Ms X of dates of court hearings.
      4. The first SGO report contained inaccuracies and was based on insufficient information.
      5. Ms X and Ms C were unaware the Council had put forward Ms C as Special Guardian until two days prior to the court hearing in January 2019.
      6. The Judge insisted another Social Worker was allocated and adjourned the case on the basis that assessments were historical.
      7. The financial assessment failed to include Ms X’s mortgage costs.
      8. The SGO Support Plan failed to include payment of Child Z’s nursery fees and prevented Ms X from spending one-to-one time with Child Y.
      9. Child Y needs additional support due to past trauma and the Council has failed to provide the help needed.
      10. Ms X felt she was not being provided with the financial support required to meet the needs of the children.
  3. The IO completed their stage two complaint investigation on 2 October 2020. The IO upheld complaints a, b, d, e, h and j, partly upheld complaints f and i and did not uphold complaints c and g. The IP confirmed their agreement with the conclusions the IO had reached and the way they had conducted their investigation. The IO recommended the Council apologised to Ms X for the upheld complaints and considered reimbursing Ms X for SGO allowance payments from September to December 2018, when Child Y moved into her care and the Council had erroneously continued paying the SGO allowance to Ms C.
  4. The Adjudicating Officer (AO) sent the Council’s response to the IO’s report to Ms X on 9 February 2021. The Council agreed with all but one of the outcomes the IO reached – the AO felt complaint j should be partially upheld. The Council apologised to Ms X for the complaints upheld by the IO. In respect of complaint j, the Council explained that as it had already made SGO allowance payments to Ms C for the period between September and December 2018 and it was for Ms X to seek this money from Ms C rather than the Council.
  5. Ms X asked the Council to escalate her complaint to stage three on 10 February 2021. The Council asked Ms X to clarify which areas of complaint she remained dissatisfied with. Ms X confirmed this on 2 March 2021.
  6. The stage three independent Review Panel met to consider Ms X’s complaints on 21 April 2021. Ms X attended the hearing remotely, as did the IO, IP and the AO from the Council. The Review Panel made the following comments in respect of each of Ms X’s complaints:
      1. Complaint upheld – The Panel was surprised there was such misrepresentation in what Ms X was being offered to become Special Guardian for Child Y and Child Z.
      2. Complaint upheld – The Panel noted the Council had not discussed alternative care arrangements for the children with Ms X in line with statutory guidance.
      3. Complaint not upheld – The Panel agreed with the view the Council only needed to inform Ms X of the court hearing dates where her attendance was required. The Panel did however acknowledge it would have been helpful for Ms X to know the dates of any other court hearings involving the children she cares for.
      4. Complaint upheld – The Panel found it ‘inconceivable’ that a SGO report of such importance was allowed to be submitted to the court with so many inaccuracies and omissions. The Panel found the Council’s failure to share the content of report with Ms X and Ms C totally unacceptable.
      5. Complaint upheld – The Panel noted Ms X and Ms C were unaware of the Council’s report recommendations to court.
      6. Complaint partly upheld – The Panel noted the judge did ask for updated assessments of Ms X and Ms C, but had no authority to make the Council appoint a different Social Worker to undertake the assessments.
      7. Complaint not upheld – The Panel agreed the Council had included Ms X’s mortgage costs when it completed its financial assessments for SGO allowance.
      8. Complaint upheld and not upheld – The Panel concluded the Council failed to include Child Z’s nursery fees in the SGO support plan (upheld) but did not uphold Ms X’s complaint that this prevented her from spending one-to-one time with Child Y. The Panel noted the confusion and lack of clarity in the advice the Council gave to Ms X about her entitlement to free childcare.
      9. Complaint partly upheld – the Panel said it was unable to reach a view on the appropriateness of the support the Council had given to Ms X and Child Y because this work remained ongoing. The Panel did however accept that Child Y continued to need support.
      10. Complaint upheld – the Panel noted the issue of nursery fees for Child Z had already been dealt with in its consideration of complaint h. The Panel did not agree with the Council’s view that it was for Ms X to reclaim the SGO allowance payments it had erroneously made to Ms C from September to December 2018.
  7. The Panel recommended the Council:
  • ensured Child Y received the recommended therapeutic support;
  • arranged a therapeutic parenting course for Ms X to attend;
  • undertake to update Ms X’s SGO financial assessment as soon as possible; and,
  • undertake an audit of payments received by Ms X and Ms C between September 2018 and March 2019 to ensure they are correct and appropriate.
  1. The Council sent its response to the stage three review panel report to Ms X on 14 May 2021. It confirmed agreement with the Panel’s findings and committed to completing the recommended actions by the end of June 2021.
  2. Ms X contacted the Council on 1 July 2021 to request an update on its progress with the stage three review panel’s recommendations. Ms X brought her complaints about the Council to us on 20 July 2021 after not receiving a response from the Council.
  3. On 3 September 2021, the Council emailed Ms X and explained it had offered therapeutic support for Child Y but Ms X had declined this. The Council explained the offer of support remained open subject to Ms X engaging with the process. The Council confirmed Ms X received the maximum amount of SGO Allowance and therefore no further financial assessment was required. The Council confirmed it had completed the payment audit and found no errors. The Council explained it had made the back-payment of SGO allowance (for September to December 2018) to Ms X as part of the payment audit on 5 March 2021.
  4. In December 2021, the Council informed us it had made an error and had not reimbursed SGO allowance for September to December 2018 to Ms X in March 2021 as previously stated. It confirmed it had now sent Ms X this payment.

Was there fault causing injustice?

  1. I do not intend to revisit parts of the stage two and stage three complaint investigation that have already been upheld. The IO, IP and Independent Review Panel have undertaken a thorough and comprehensive consideration of those elements of Ms X’s complaints.
  2. I do however have concerns that the impact and injustice caused to Child Y, and to a significantly lesser extent Child Z, does not appear to feature in the consideration of Ms X’s complaints. Child Y’s therapeutic support needs are still not being met by the Council. Ms X has told me that Child Y struggles to sleep and this affects their ability to engage at school during the day. Ms X understandably remains deeply worried about the trauma Child Y has and continues to suffer and the lack of help they have received. The Council was at fault for failing to act sooner and for not seeking to remedy the injustice caused directly to Child Y. I have made recommendations below in recognition of this and to address this procedural gap in the Council’s process.
  3. There has been considerable delay in the Council arranging suitable therapeutic support for Child Y and Ms X. Ms X has been asking for this help for Child Y since at least the end of 2018, if not earlier. It is extremely disappointing to see the Council has repeatedly failed to meet its commitments to Ms X and Child Y. The Council has also incorrectly sought to lay the blame for this delay on Ms X by claiming she had declined to engage in the support offered. The evidence provided shows Ms X asked the Council on one occasion to delay therapeutic parenting training sessions for her by a few weeks while she was dealing with other urgent matters. It was unacceptable for the Council to construe this as a refusal to engage in the support being offered to Ms X. This also did not prevent the Council from implementing the therapeutic support Child Y urgently needed in the meantime.
  4. There was considerable delay in the Council’s handling of Ms X’s stage two complaint, which took a total of 198 working days to complete, three times longer than the maximum statutory timescale of 65 working days. The Council’s delay caused avoidable distress, uncertainty and frustration to Ms X, who already felt the Council was not taking her concerns seriously.
  5. The Council was at fault in the advice it gave to Ms X about her entitlement to free childcare and its failure to pay those fees for a period in 2019. I have not however found evidence that it committed to covering the cost of Child Z’s nursery fees beyond the age of three.
  6. The Council completed a payment audit as the stage three review panel recommended. However, I am concerned this did not identify that Ms X had not been paid SGO allowance for the period from September to December 2018 in early March 2021. This was fault and I have recommended the Council takes action to remedy the injustice caused to Ms X by its delay and error in this respect.
  7. The Special Guardian statutory guidance says SGO Support Plans and Allowances should be reviewed at least annually. The Council was at fault for not undertaking these reviews in Ms X’s case since the SGO was granted in June 2018. The Council is unaware if any of Child Y, Child Z or Ms X’s needs have changed in this time. The Council’s failure to involve Ms X in any financial reviews, simply because it is paying the maximum rate of allowance, is also fault. Child Y will soon be starting at secondary school and their rate of SGO Allowance is likely to increase as a result.
  8. Overall, the Council’s poor handling in this case has led to Ms X’s understandable and significant lack of trust and confidence. Ms X says she feels the Council has stopped listening to her and is not interesting in helping her support the children in her care. She remains deeply worried and upset at the lack of help Child Y is receiving and the risk of long-term damage this might cause to their mental health and wellbeing.

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Agreed action

  1. Based on the faults identified above, within one month of my final decision, the Council has agreed to:
  • arrange for a Senior Officer of the relevant team to meet with Ms X to discuss the impact on her, Child Y and Child Z and to offer a face-to-face apology for the injustice caused. The face-to-face meeting is intended to help rebuild trust and confidence between both parties, so they might better engage for the benefit of the children involved in the future;
  • make a payment of £2,000 to Ms X in recognition of her distress, time, trouble and uncertainty in pursuing her complaints and the help she still needs for the children in her care;
  • make a payment of £1,500 to Ms X for the benefit of Child Y for the delay in arranging therapeutic support since the end of 2018;
  • arrange to meet with Ms X to complete annual reviews of the SGO Support Plans and financial allowances for both children;
  • apologise to Child Y for the delay in providing therapeutic support they need – this remedy should only be provided if Ms X feels it is appropriate and in a method that suits Child Y’s needs;
  • arrange and ensure appropriate therapeutic support and therapeutic parenting sessions have started for Child Y and Ms X respectively;
  • place copies of the statutory complaint papers and this final decision statement on the social care files for both children; and,
  • place clear notes on the social care files for both children that the contents of the SGO report dated 4 December 2018 is strongly disputed (by Ms X) and should be read in conjunction with the IO’s stage two complaint report for context.
  1. Within three months of the final decision, the Council agrees to:
  • implement a system of regular quality monitoring of a sample of SGO payments in all cases.
  • provide written guidance to all relevant staff, including stage two IOs, IPs and stage three review panels, about the importance of considering the impact of any faults on the children involved and how this might be remedied where appropriate.
  • provide written guidance to all relevant staff to ensure they give accurate information about entitlements to free childcare to Special Guardians.
  1. The Council should provide us with evidence that the above recommendations have been completed.

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Final decision

  1. I have completed my investigation and uphold Ms X’s complaint. Ms X and Child Y have been caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice and to improve its services.

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Investigator's decision on behalf of the Ombudsman

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