Summary: Miss B complains the Council failed to assess both her and her grandchildren when they came to stay with her. Miss B has had no support to help her care for her two young grandchildren, causing her financial distress and frustration. We find fault with the Council for failing to follow the relevant procedures and for not carrying out an assessment. The Council have proposed a way to remedy the complaint which we agree with.

The complaint

1. Miss B complains the Council failed to assess both her and her grandchildren when they came to stay with her. Miss B has had no support, financial or otherwise, to help her care for her two young grandchildren.
2. Miss B had to postpone starting her new job.
3. Miss B would like the Council to carry out an assessment as soon as possible, and any payments backdated to May 2021.

Back to top

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 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)

Back to top

How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• looked at the relevant law and guidance;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Family and friends as carers

Section 20 of the Children Act 1989 says councils shall provide accommodation to any child in need within their area who needs it, because:

• there is nobody with parental responsibility to care for them;
• they have been lost or abandoned; or
• the person who has been caring for them being prevented from providing suitable accommodation or care.

8. Councils need to distinguish between private arrangements made between parents and carers, and arrangements in which the child is accommodated under the Children Act 1989 and so is a looked after child.
9. When a child needs to be accommodated, the law says councils should consider placing them with family or friends first. Friends and family foster carers can receive a fostering allowance and other practical support from the council.
10. The courts have considered whether arrangements for a child to live with a relative or friend are truly a private arrangement. In a key case (London Borough of Southwark v D [2007] EWCA Civ 182), the Court said where a council has taken a major role in arranging for the friend or relative to care for the child, it is likely to have been acting under its duties to provide the child with accommodation.
11. The Court considered a private fostering arrangement might allow a council (otherwise likely to have had to provide accommodation for a child), to ‘side-step’ that duty. For a council to side-step its duty, it must have given the carer enough information to allow them to give their ‘informed consent’ to accepting a child under a private fostering arrangement. To do this the carer must have known, because of what the council told them, that the child’s parent would continue to be financially responsible. Without that informed consent, the council could not side-step its duty.

Fostering

12. Regulation 24 of the Care Planning, Placement and Care Review (England) Regulations (2010) sets out arrangements for the temporary approval of a connected person as a foster carer in emergency or exceptional circumstances. The approval can last for up to 16 weeks, which allows for the immediate placement of the child and enough time for the connected person to complete the council’s foster carer approval process.
13. The council must visit the connected person’s home as part of the assessment to determine their suitability as a foster carer.
14. A connected person approved under these regulations will be entitled to the same support and services as other council foster carers.
15. 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 included councils failing to recognise they had a duty to accommodate a child and gaining agreement to an informal family and friends care arrangement under duress. 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.

Child in Need

16. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. It should develop a multiagency child in need plan which sets out which organisations and agencies will provide which services to the child and family. The plan must be reviewed within three months of the start of the child in need plan and further reviews should take place at least every six months thereafter. (Working Together to Safeguard Children) 

Back to top

What happened

17. Miss B’s daughter (Miss C) has two children, D and E.
18. In May 2021 Miss C sought support from the Council as she was finding it hard to cope with D and E.
19. Miss C had been the victim of domestic violence and requested support to help her mental health.
20. Miss C asked the Council for temporary care for D and E.
21. Miss B says she took her grandchildren as she did not want them put into care, and initially thought it would only be for a few days.
22. Miss B was starting a new job the following week, but had to postpone it. She had to find a new school for the children as she lives in a different borough to Miss C.
23. Miss B requested help and financial support from the Council, but was told she had to contact her own Council for help.
24. Miss B and Miss C both signed a letter saying this was a private family arrangement. However Miss B says this was not the case and the social worker told Miss C what to write in the letter.
25. Miss C eventually received some funding from her own Council to help pay for the children’s beds and school uniform, but felt abandoned and dismissed by this Council.
26. Miss B received no emotional or financial support from the Council, and D and E have been in her care for over a year now.
27. Miss B complained to the Council and in the complaint response it said it was down to the new Council to assess Miss B and the children and provide support. The Council also said it was a private family arrangement so it would not provide any financial support.

Analysis

28. The Council should have carried out an assessment to decide exactly what support Miss B would need once D and E went to live with her.
29. This is fault by the Council which led to Miss B having no support for her or for D and E.
30. The Council has accepted this in the response to our enquiries, saying:

“Having completed a more detailed review of the case, we recognise that more should have been done in May 2021 to clarify the basis and duration of the arrangement, with Miss C and Miss B; particularly as she had told officers during a call on 1 June 2021 that she was due to start a new job the following week.”

31. The written letter, confirming that both Miss B and Miss C supported the private family arrangement which would continue for up to six months, was placed on file several days after the children had been placed with Miss B. The Council say in the enquiry response:

“Miss B disputes the Authorities position and maintains she was coerced into writing a letter so the council could absolve itself of any responsibility for the children’s future care. We are not able to verify parts of her original discussion with the appointed Social Worker, as this officer no longer works for the Authority, and the notes of the conversation have not been recorded verbatim, however, we would have expected to see officers understanding of matters to be reflected in the notes. However the timeline aligns more closely with Miss B’s recollection of events. The records confirm she had been told that a referral had been made, so it was reasonable for her to expect an assessment to be completed shortly thereafter. This did not happen in June or since, so she may not have fully understood the consequences attached to writing a letter, she believed was just a formality to prevent the children being taken into care before any conclusions were reached about what future care and support would be provided.”

32. Miss B brought a complaint in September which was a further missed opportunity for the Council to remedy matters and provide her with support. The Council accepts this and say in the enquiry response to us:

“Having studied the sequence of events as part of a further review of the case, we accept a Section 20 assessment should have commenced in late May/Early June 2021 as Miss B approached us, under Section 17 of the Act 1989, for advice and support. This placed a responsibility on the Authority to manage and monitor what action followed. We failed to write to her in June 2021 to explain why we felt her Council were responsible for providing the necessary care and support for the children and no further review of the case was carried out before it was closed at the end of June 2021.  We were asked again in January 2022 to commence with an assessment. Officers put measures in place to assist Miss C with her mental health, however, no further action followed in respect to the long-term support for the children or Miss B. Accordingly, the service she has received did fall below the standard we aim to provide on several levels. We wish to apologise to Miss B for any distress the delay and confusion caused.” 

33. This is a welcome response from the Council.
34. Miss B was continually passed between the Council where Miss C lives, and her own Council, causing frustration.
35. The Council have put forward suggested remedies which I agree with:

“To remedy matters, it is our intention to commence with a single assessment under Section 20, as soon as possible. This can take up to 35 days to complete, however, we plan to backdate any support she is entitled to receive to cover any provision that may have been lost since May 2021. A file will then be passed to colleagues in our Foster Care Team so they can determine viability under 24 of the regulations by completing an assessment of Miss B’s suitability.

We accept Miss B was left uncertain and without access to a service while we engaged with colleagues at the Council where she lives. These discussions have continued throughout the duration of the period the children have been in her care. In recognition of the undue stress and inconvenience this caused, we would like to make an additional payment to her of £450.00 to address matters.”

Back to top

Agreed action

36. I agree with the remedies the Council have offered above. The Council should forward proof these have been carried out within one month of the final decision. These are:

• Complete a Section 20 assessment;
• Backdate any support Miss B should have received from May 2021;
• Pay Miss B £450 for stress and inconvenience.

37. The Council should also write a personal apology to Miss B.

Back to top

Final decision

38. I find fault with the Council for not carrying out an assessment under Section 20 of the Children Act 1989 and for failing to provide Miss B with any support, causing her distress and frustration. The Council have proposed remedies which I am in agreement with.

Back to top

Investigator's decision on behalf of the Ombudsman