Durham County Council (21 007 905)

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

Decision : Not upheld

Decision date : 10 Mar 2022

The Ombudsman's final decision:

Summary: Ms X cares for a child under a Child Arrangement Order. She complains about the Council’s decision to end her funding and says the Council fettered its discretion to continue providing the funding. Ms X says this has caused her distress. We do not find fault with the Council as there is no evidence it fettered its discretion.

The complaint

  1. Ms X cares for a child under a Child Arrangement Order (CAO). She complains about the Council’s decision to end her funding and says the Council has fettered its discretion to continue providing the funding. Ms X says she is under financial hardship and the decision has caused her distress.

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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. 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)
  3. 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

  1. I spoke with Ms X and considered the information she provided.
  2. I made enquiries with the Council and considered the information it provided.
  3. I sent a draft decision to Ms X and the Council and considered their comments.

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What I found

Legislation, policy, and guidance

  1. The Child Arrangements Order (CAO) is legislated for under section 8 of the Children Act 1989. It is an order made at court which sets out who and when a child will live or have contact with a person. The holder of the CAO shares parental responsibility with the child’s parents.
  2. Under the Children Act 1989, Schedule 1, councils have a discretionary power to make payments towards the cost of maintenance and accommodation of a child who is subject of a Child Arrangement Order.
  3. The Council’s policy notes that when it offers financial support, it will produce a written agreement outlining the level and duration of the support. There should also be a mechanism for review to ensure that all concerned remain clear about the arrangements.
  4. The Council’s practice guidance notes the Council has the discretion to pay an individual caring for a child who is the subject of a CAO. The Council considers all requests for financial assistance based on the financial assessment and assessed needs of the child. If the Council decides to pay an allowance, it may make a one-off payment or a weekly payment for an identified period.

What happened

  1. Ms X looks after a child under a Child Arrangement Order (CAO), made by the Court in June 2019.
  2. In November 2020, following an Ombudsman investigation, the Council completed a financial assessment for Ms X and decided to provide Ms X with transitional financial support. The Council agreed to provide the financial support for two years.
  3. In December 2020, the Council wrote to Ms X to outline the details of the transitional payment it would provide. The Council confirmed it would make two lump sum payments to Ms X to cover the period 2019 to 2021. The Council’s letter was also clear in stating it would pay the allowance for up to a maximum of two years.
  4. In May 2021, the Council completed a review of the case. The review noted Ms X had received transitional funding from the Council and the funding would end in June 2021. The review confirmed a panel would consider the matter to decide whether to continue with the transitional financial support.
  5. The panel considered Ms X’s circumstances and noted the family did have a small monthly deficit, had some financial obligations, and had significant costs associated with gas, electric and the shopping bill. The panel also noted Ms X may have been overpaid child tax credits and a Council officer was supporting Ms X with the issue.
  6. After consideration of Ms X circumstances, the panel agreed to give Ms X a one off lump sum payment to support the family. The panel noted this would be the final payment to Ms X. The panel also confirmed officers could bring the case back to panel once there was further clarity on the issue of the child tax credit overpayment.
  7. The Council wrote to Ms X in June 2021 to outline the panel’s decision. The Council explained the panel had decided to provide a final one-off lump sum payment to help Ms X manage future finances, after which all financial support will end. The Council explained the reasons for the decision were:
    • The Council had provided the transitional financial support in line with its policy.
    • Ms X received all eligible benefits and there were no additional needs that would warrant continuing financial support.

Ms X was unhappy with the panel’s decision and made a complaint. Ms X said the Council’s policy was inappropriate as it allowed the Council to fetter its discretion by imposing a two year limit for financial support.

Analysis

  1. Any financial support for a CAO is discretionary and not an entitlement. The Council’s policy outlines that if it offers financial support, it will produce a written agreement showing the level and duration of the support. The Council will also have a review mechanism to ensure all concerned remain clear about the arrangements.
  2. The evidence shows the Council wrote to Ms X in December 2020 outlining the financial support the Council will provide, and the duration of the financial support. The letter clearly noted the Council would only provide the financial support for two years, covering the period 2019-2021. Therefore, the Council has acted in line with its policy as it is open to the Council to set a limit for how long it will provide the support.
  3. The Council’s practice guidance provides further clarification of using its discretion to make payments. It notes the Council has discretion to make payments to an individual caring for a child who is the subject of a CAO. It can make a one-off payment, or a weekly payment made, in respect of transitional financial support for an identified period.
  4. Again, the practice guidance allows the Council to decide the period it will provide financial support. The Council’s policy or practice guidance does not set a limit of two years for financial support. Rather, it gives discretion to the Council to decide how long to provide financial support.
  5. Therefore, in this case, we are satisfied the Council has acted in line with its policy and practice guidance in setting a two year limit for the financial assistance. The Council also appropriately told Ms X of the details of the arrangement and that the financial support would only be paid for two years.
  6. Ms X said the Council has fettered its discretion and that it is relying on its policy to only provide financial support for two years.
  7. As noted above, the Council’s policy or practice guidance does not set a time limit of two years for financial support. Instead, the policy and practice guidance clearly notes it is open to the Council to identify a time period to provide financial support. This means it is open to the Council to provide financial assistance to an individual for any length of time it chooses.
  8. There is also no evidence to support the claim the Council fettered its discretion. This is because the Council considered Ms X’s circumstances in May 2021, before the financial support was due to end in June 2021. This was appropriate in the circumstances and in line with the Council’s policy as the policy notes there should be a mechanism for a review of the arrangements.
  9. The Council has evidenced the panel’s consideration of Ms X’s circumstances, the relevant evidence, and provided its rationale for the decision reached. There is no evidence to suggest the panel did not properly consider all relevant evidence before it made its decision. Therefore, we cannot criticise or find fault with the decision itself.
  10. We also note the panel decided to provide Ms X with a further lump sum payment to assist with her finances. This demonstrates the Council did in fact use its discretion to provide some further financial support to Ms X.
  11. Therefore, we are satisfied the Council has not fettered its discretion because it properly considered Ms X’s circumstances before making the decision to provide a final lump sum payment and ending its financial support.

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Final decision

  1. We find no fault with the way the Council made its decision to end its financial support to Ms X. We have completed our investigation.

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Investigator's decision on behalf of the Ombudsman

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