Decision : Upheld
Decision date : 10 Apr 2022
The Ombudsman's final decision:
Summary: Ms X complained the Council failed to provide advice and support when she cared for her brother, Z, for fifteen weeks because he was not able to stay at home. The Council was at fault for not clarifying the basis on which Z was staying with her, delay in making a referral to the council where Ms X lives and failing to provide appropriate support. It should apologise, make a payment to reflect the avoidable stress caused and make changes to its processes to prevent this happening again in the future.
- Ms X complained the Council failed to provide advice and support when she and her former partner, Mr Y, cared for her half-brother, Z, between late January and mid May 2021. She sought support several times around managing Z’s anger and behaviour.
- As a result of his difficulties and poor anger management, Z caused damage to their property, and Ms X wants the Council to reimburse them for some of the damage caused.
The Ombudsman’s role and powers
- 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)
- 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)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- 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)
- 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.
How I considered this complaint
- I considered:
- the information Ms X provided and spoke to her about her complaint;
- the information the Council provided in response to my enquiries;
- relevant law and guidance, as set out below; and
- our guidance on remedies, published on our website.
What I found
Child in need
- Section 17 of the Children Act 1989 says children are “in need” if they:
- need a council to provide them with services so they can achieve or maintain a reasonable standard of health or development; or
- need a council to provide them with services to prevent them suffering significant or further harm to health or development; or
- they are disabled.
- there being no person who has parental responsibility for the child;
- the child 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 and care.
Case law on family and friends care arrangements – the Southwark judgement
- 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. Under these 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.
- 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  EWCA 182)
- All mothers and most fathers have legal rights and responsibilities as a parent, which is known as parental responsibility. This includes the right to make decisions on behalf of the child and to have access to information about the child.
- Where family and friends care for a child on a long-term basis, they may be able to apply for a child arrangement order (CAO), which says where the child should live and gives the carer “parental responsibility” so they can make decisions for the child. Or they may be able to apply for a special guardianship order, under which the carer would share “parental responsibility” with the child’s parents.
- Z is Ms X’s half-brother. The Council had supported him as a child in need between 2012 and 2013, including providing accommodation for him for a period under Section 20. In late January 2021 Z lived with his father but the situation at home was difficult.
- Ms X and her former partner, Mr Y, cared for Z, who lived at Mr Y’s home, from late January until mid-May 2021, when Z returned to his father’s home.
Placement of Z with Ms X and Mr Y
- In the early hours of the morning in late January 2021 the police contacted Ms X, who agreed to care for Z. She made arrangements to collect Z and for him to live with her former partner, Mr Y, who lived in another council area. Council records show the Council was not involved in arranging for Z to live with Ms X and Mr Y.
- Council records indicate it received a referral through the Multi Agency Safeguarding Hub (MASH) on 28 January 2021. It allocated the case to its early help team.
- The Council contacted Z’s father on 1 February. It told him it would carry out an early help assessment to identify what needs to change and what support was needed. It said it would talk to Z’s school and other professionals.
- Mr Y agreed to accommodate Z because Ms X did not have the space to do so. He provided supervision during the day as Z was being educated online when schools closed in early 2021 due to the COVID-19 pandemic. Ms X covered the costs of Z staying there. She lived close by and made several visits each day to provide meals and other support for Z, and to assist in managing his behaviour, whilst also caring for her own young children.
- Ms X said the police told her social services would be in touch with her to offer support, but this did not happen and she had to contact the Council.
- A social worker visited Z on 5 February. The record stated Z was happy and doing well. He had few clothes because he said his father had thrown them away. The record says Ms X was having to wash his clothes daily because he didn’t have enough and also that the clothes he had were not suitable for the weather. The record shows the social worker spoke to Ms X and Mr Y, who reported they were struggling financially as Mr Y was not able to work due to ill health. Ms X said it was clear at that point that Z’s father did not want Z to return home.
- The social worker visited again on 17 February 2021 and agreed Mr Y would care for Z. Ms X understood the social worker had granted Mr Y parental responsibility for Z. The Council later apologised for giving that impression.
- The Council provided Z with a Chromebook to enable him to access education online, but Z damaged this in mid-March during an angry outburst. Following that incident, Ms X contacted the Council’s emergency team. She said the placement was breaking down due to Z’s behaviour. The referral was passed to Z’s social worker.
- The social worker contacted Ms X two days later. She spoke to Z, who agreed to talk to Ms X and Mr Y about his behaviour and what was expected whilst he was living with them. Z again reported he had no clothes.
- In a further call, the next day, Ms X told the Council they could continue to care for Z if the Council provided support. The record indicates the social worker told them Mr Y could claim universal credit.
- The early help assessment was completed on 30 March 2021. The social worker discussed the draft assessment with Z’s father, following which they made some amendments. The assessment recorded Z’s father had sent £50 to support Z and the social worker told him he should be supporting Z weekly. I have seen no evidence that Z’s father sent any more money. It was clear Z could not return home. The Council concluded Z should remain with Ms X and Mr Y, with support (including financial support) from council B, in whose area Z was now living.
- On 31 March 2021 the social worker made a referral to council B. Council B did not accept the referral, which it said had not followed the correct process. There were discussions between the two councils over several weeks. Council B accepted the referral on 7 May and confirmed it had done so on 13 May 2021.
- Mr Y made an application for universal credit and Ms X told the Council he had a telephone appointment to progress that on 15 April 2021. On 5 May 2021, the social worker provided a letter to support Mr Y’s application.
- Ms X reported a further incident on 22 April 2021. She said Z needed to leave because his behaviour was having a negative impact on their younger children. The social worker spoke to Z the next day. He reported being unhappy about plans for him to return to school.
- The social worker arranged for online support for Z for his mental health in early May 2021. The following day, the police reported concerns about Z’s behaviour. I have seen no record of any action taken in response to that report.
- On 15 May 2021 Mr Y took Z back to his father’s home. Z did not want to return but Ms X and Mr Y could no longer manage his behaviour. Z refused to get out of the car and the police were called. During this incident, Z caused significant damage to the satellite navigation system in Mr Y’s car. Z returned to his father’s care but has since been accommodated by the Council under section 20.
- Ms X complained. She said the Council had not provided any support, nor had the council where she lives (council B). Council B had not even told her that it had accepted the referral. As a result of Z’s anger issues, and the lack of support with this, she had suffered financial loss as Z had damaged various items, including a wall that cost £300 to repair and another item that cost £2,208 to repair.
- The Council responded to the complaint in early June. It acknowledged it should have checked whether council B had been in touch about the referral. However, it said the arrangement was a private family matter and it was not responsible for damage caused by Z whilst living with them.
- Ms X was unhappy with the response and asked the Council to consider the complaint further at stage 2 of its complaints process. Amongst other things, she said:
- they had only agreed to assist Z on the basis that both the police and social services were involved. This was not a private family arrangement and the Council had given Mr Y parental responsibility for Z;
- they did not receive any support from the Council, including financial support, despite contacting the early help team to tell them about the situation;
- as a result of the lack of support with Z’s anger, he caused significant damage. She listed some of the items that were damaged or destroyed; and
- that although she knew the case was being referred to council B, she was not told that they had accepted the case and they did not provide any support either. No support was given by either council even when she told them the placement was breaking down.
- although it contacted Z’s father straightaway, it should have contacted Ms X sooner;
- it should have determined at a very early stage that the intention was for Z to remain in the other council’s area and agree his permanency plan;
- it should have made a referral to the other council as soon as it had decided where Z would live but it acknowledged it did not make that referral until 31 March 2021;
- families should not be left without a service whilst local authorities determine who is responsible;
- there needed to be a clear explanation given about “family arrangements”, including Council responsibilities and processes, and what support was available, including who would provide it; and
- there was a delay in securing universal benefits.
- it did not have a policy on private family arrangements but followed relevant statutory guidance;
- it had started developing guidance for its early help team on family and friends arrangements, and also planned to produce a document for families;
- the learning from this case had been shared with the social worker and their manager during the stage 2 complaints process, and would be shared at a children’s service briefing in February 2022;
- a series of workshops would be held for its early help team between March and May to provide additional training in this subject area; and
- it was willing to pay a further £500 to Ms X “in recognition of the care and support” they provided when Z lived with them, the delay in making a referral to council B and the delay in them receiving benefits.
- It was the police who arranged for Z to live with Ms X and Mr Y. Ms X has not complained about the actions of the police. I have not investigated the police actions, nor considered its records, because the police are not in our jurisdiction.
- On balance, I find that, if the police had been able to contact the Council before contacting Ms X, the Council would have considered Z as a child in need. This means it would have had a duty to provide support for him, including accommodation if he could not continue living with his father.
- It is likely the Council would have placed Z with Ms X since it would have explored the possibility of a family placement first, and Ms X was willing to support him. In these circumstances, Ms X would have been entitled to financial support.
- I do not consider this was a private family arrangement because there was no agreement between family members for Z to be placed with Ms Z. It was the police who arranged this, not the family. Further, the records indicate Z’s father considered Z should be in care, not living with Ms X.
- In any case, as soon as the Council was aware Z had moved, it should have contacted Ms X to check on his wellbeing. It accepts it should have done this and did not do so. That was fault.
- At that early stage, it should have clarified with Ms X and Mr Y the legal basis on which Z was living with them and the support they were entitled to. It accepts it failed to do this, which was further fault.
- The Council accepts it delayed making a referral to council B and did not check council B had actually contacted Ms X, which was further fault. It also accepts the family should not have been left without support whilst councils decide which of them was responsible for providing it.
- Z arrived with a few possessions in a plastic bag. The records show the Council was aware he did not have sufficient clothing. I have seen no evidence the Council provided any support towards his essential needs, apart from arranging for him to have a Chromebook, despite it recording that Ms X and Mr Y had financial difficulties. The failure to ensure Z had essential items such as clothing was fault. This meant Ms X had to buy essential clothing for Z and had an additional laundry burden due to him not having sufficient clothing.
- The Council should also have supported Ms X and Mr Y to claim any benefits they were entitled to because Z was living with them. It accepts it delayed in doing so. It did not produce a letter to support Mr Y’s claim for universal credit until 5 May, more than three months after Z moved. I have seen no record of any other advice about benefits or other financial support they may have been entitled to, including child benefit. This was fault. This caused a delay in them receiving financial help and they may not have got all the help they were entitled to.
- Ms X asked for support with managing Z’s behaviour on several occasions. It could have provided advice and guidance, referred her to other sources of help and/or referred Z to agencies for support with his anger management. Apart from speaking to Z to try to persuade him to try harder, there is no evidence the Council provided any support. This was fault. This lack of support added to the stress caused to Ms X and Mr Y by the difficulties of support Z and managing his challenging behaviour over the 15 weeks he lived with them.
- In her complaint, Ms X asked the Council to reimburse her for the costs of a damaged wall (£300) and the cost of repairing Mr Y’s satellite navigation system (£2,208). The Council agreed to pay for the wall and did so. In response to my enquiries, it offered to pay a further £500. Although I do not expect the Council to pay for the damage Z caused, since I consider it is reasonable to expect Ms X and Mr Y to have appropriate insurance cover in place for that, I do not consider £500 is sufficient to remedy the injustice caused by the faults I have identified.
- The Council will, within one month of the date of the final decision:
- apologise to Ms X and Mr Y for the failure to immediately check on Z’s wellbeing after he moved, the failure to clarify the basis of his placement with them, the delay in making a referral to council B, the burden caused by the failure to ensure Z had appropriate clothing, the delay in providing assistance for them to claim universal credit and other relevant benefits, and the failure to provide support for them as carers, particularly in relation to Z’s challenging behaviour;
- pay each of them £1,500, calculated on the basis of £100 per week for the fifteen weeks Z lived with them to reflect the injustice caused by these faults, including the avoidable stress as a result of the lack of support. For clarity this means a payment of £3,000 in total.
- I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.
Investigator's decision on behalf of the Ombudsman