Summary: Mr X complains the Council did not make his step nephew a “looked after child” and says he would like to have his foster carer payments backdated for a year. The Council say it was a private family arrangement before the Interim Care Order was made. We find fault with the Council for failing to carry out an assessment sooner. We have suggested remedies for the frustration and financial distress caused to Mr X.

The complaint

1. Mr X complains the Council did not make his step nephew (D) a “looked after child” even though he was living with Mr X.
2. Mr X would like to have his foster carer payments backdated for a year.
3. The Council say it was a private family arrangement before the Interim Care Order was made so no financial payment is due.

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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)

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Mr X’s comments;
• looked at the relevant law and guidance;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mr 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

Legal and administrative arrangements

8. A child is considered a “child in need” if their development is likely to be impaired if services are not provided.
9. Where councils consider that a child should be removed from their parents, they can seek to obtain an emergency protection order to remove the child immediately. Alternatively, the council can apply to the Family Court for an interim care order. If the Court grants this, it will allow councils to share parental responsibility with the parents.
10. Under both orders, the child becomes known as a ‘looked after’ child and the council has specific duties to safeguard and promote the child’s welfare.
11. Councils also have a duty, under section 20 of the Children Act 1989, to provide accommodation to any child in need in their area who requires it, as a result of:
• there being no person who has parental responsibility for the child;
• the child being lost or having been abandoned;
• 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 or care.
12. The provision of accommodation under section 20 does not remove the parent’s parental responsibility and a parent can ask for the child to be returned to their care at any time.

Family and friends foster carers

13. When a child needs to be accommodated by a council, the law says the council must first consider placing them with family or friends. The relatives must be suitable and able to provide appropriate care. If the carer becomes a family and friends foster carer, (sometimes referred to as a kinship carer), they are entitled to receive a fostering allowance and other practical support for them and the child from the council. The fostering allowance is provided to cover the cost of caring for the child.
14. Statutory guidance, and case law, says that family and friends foster carers must be paid the same fostering allowance rate as professional, unrelated foster carers (minus any professional fostering fee). The council can also deduct an amount equivalent to child benefit and child tax credit if the carer receives these.
15. As councils are responsible for arranging friends and family foster care placements, a formal process is followed to assess the suitability of the family member or friend. Councils should regularly visit the family and friends foster carer, draw up a placement plan for the child and hold looked after child reviews overseen by an Independent Reviewing Officer.
16. Family and friends foster carers must comply with fostering regulations.
17. Failure of councils to properly identify a family and friends foster carer can have financial and support implications for the carer and for the child too.

Private or informal family arrangements

18. A private, or informal, family arrangement happens when a close relative has agreed with the parent to take on the care of the child.
19. This informal arrangement can be confirmed in court in a private law order called a Child Arrangement Order. A Child Arrangement Order sets out with whom the child should live, spend time or other contact arrangements and gives the holder of the Order shared parental responsibility for the child with the parents. This Order lasts until the child is 16.
20. Under this arrangement there is no right to any financial support from the council although councils have discretion to provide financial assistance if it is considered necessary.
21. The Adoption and Children Act 2002 came into force in December 2005. It provided a new legal status, Special Guardianship Orders (SGO), for non-parents who wished to care for children in a long term, secure placement.
22. A SGO granted by a Court gives the special guardian parental responsibility for a child who is not their own. It does not entirely remove the parental responsibility of the birth parent but limits it. Special guardians may be entitled to a financial allowance from the council, subject to a means test and in accordance with the council’s policy. Children, subject to a SGO, are not looked after children. The Order lasts until the child is 18.

Statutory guidance

23. The SGO Regulations and Guidance 2005 and 2016 set out the possible support services which can be provided, including counselling, advice, information and financial support. The then Department of Education and Skills (DfES) produced a suggested model means test for adoption and SGO financial support payments.
24. The statutory guidance says councils must have policies explaining how family and friends carers are made aware of the eligibility criteria for financial support and, when means testing applies, how to apply for any such financial help, and how and when decisions are made about eligibility.
25. Where special guardians were previously foster carers, councils can pay them the fostering amount for a two year transitional period to give them time to adjust. The Regulations say:

“The purpose of the two year transitional provision is to enable local authorities to maintain payments to foster carers who become special guardians, at the same rate as they received when they were fostering the child. This should give the family time to adjust to their new circumstances”.

Relevant case law

26. In a key case (‘the Southwark judgement’), the court said that, 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 Children Act duties to provide the child with accommodation.
27. If the council is just facilitating a private law arrangement, the court said councils must make clear to all parties that those holding parental responsibility for the child would continue to be responsible for the financial arrangements to care for the child. (London Borough of Southwark v D [2007] EWCA Civ 182)
28. The court considered a private arrangement might allow a council, (otherwise likely to have had to provide accommodation for a child), to ‘side-step’ its duty to provide accommodation for a child. Assessing whether an arrangement is a private family or a family and friends fostering arrangement will be fact specific. However, there are two key questions:
• how much has the council done to get the child placed with the carer?; and
• has the council made it clear that it is treating the placement as a private family arrangement and that any financial support will come from the parents?
29. In the case, R (on the application of CO) v Surrey CC, the court decided the council had placed the child with the grandmother as a family and friends carer on the basis that the council had taken steps to initiate the arrangement, and because the child could not continue to live with her mother, who was not providing suitable accommodation.

Our Focus Report on Family Carers

30. In November 2013, we issued a focus report about family carers. We highlighted certain key issues:
• Has the council published a clear policy on family and friends carers?
• Are the rates to carers being paid in accordance with statutory guidance?
• Are timely checks being made on family and friend’s carers to ensure the suitability of the placement?
31. We made several recommendations to promote good practice. One recommendation is that, where a council has had involvement with the child’s family before that child came to live with a family member, the council should be able to show it has explained to the carer the implications of agreeing to an informal family care arrangement, rather than becoming a family and friends foster carer.

What happened

32. Child D has a history of social care involvement since 2009, and has been under Child Protection Plans and Child Arrangement Orders.
33. The Council had worked with D’s Mum so he could move back home, and D moved back with his Mum from around September 2020.
34. By April 2021 D’s school attendance had declined and he kept running away from home to stay with Mr X.
35. Police were called on numerous occasions due to D leaving school, running away from home or anti-social behaviour.
36. Between June and July D was living between his Mum and Mr X. By August he was living with Mr X full time.
37. The Council were aware of D’s living arrangements and supported him living with Mr X, saying it was a private family arrangement between D’s Mum and Mr X.
38. Mr X sent text messages to D’s social worker between November 2021 and March 2022 explaining he was struggling financially and asking for help, along with an update as to where he stands legally.
39. Mr X complained to the Council in February 2022 saying he was not aware of his legal rights and he should have had foster carer payments when D started living with him.
40. The Council’s response was that D had spent different periods of time with Mr X and his Mum, but due to escalating worries about D’s care while with his Mum it had issued care proceedings. The Council apologised for any frustration caused.
41. Mr X escalated this to a stage 2 complaint and the Council said Mr X was not previously assessed as a family and friends foster carer which is why he was not paid any fostering allowance. It advised, the foster allowance would begin in March 2022. It explained, as there were no formal legal orders in place this was a private family arrangement, D was not a “looked after child”.
42. The Council acknowledged the extra financial demands Mr X had with no help from D’s Mum.
43. Mr X then brought his complaint to the Ombudsman.

Meeting notes

44. During this period the Council held Young Person In Need (YPIN) Review meetings every month with D’s Social Worker, D’s school and his Aunt in attendance. His Mum did not attend the meetings.
45. D’s Aunt (Miss Y) is a psychologist, and D lived with her for a period before going back into his Mum’s care.
46. Relevant notes from the meetings are:
• April: Miss Y had previously looked after D and was asked if she would consider having him back in her care if the placement with his mum broke down. This was the contingency plan but she now had two other children in her care who she needed to prioritise.
• May: D’s school attendance was very low and he was spending the majority of his time with Mr X. The social worker noted she needed to get Mr X’s details as the Council and school did not have them. The Council are intent on exploring Edge of Care services to better support D and his Mum.
• June: There were worries about D going missing from home. Mum refuses to attend meetings and will not allow social services into her property. Mr X agreed to attend meetings and said that he is the one to take D to his CAMHS appointments.
• July: Mr X said he looks after D four or five days a week. He said he is willing to have D until he is 18 years old but would like some Order in place giving him parental responsibility. He would not stop D from seeing his Mum but this fluctuating living arrangement is not good for D. When D was living with his mum the score was low but there are no worries when he is living with Mr X.
• August: Miss Y thinks D should be removed from his Mum’s care. His behaviour and education has deteriorated considerably. Mr X feels all the good work he does with D disappears when he goes home to Mum. It was noted if Mum does not engage the Council may have to seek legal advice and ensure Mr X gets the right legal order to give him parental responsibility. Mum had agreed to attend the core group meeting but when they arrived she refused to open the door.
• September: Miss Y is frustrated this is ongoing as social services have been trying to put in services for a year now. Mr X said D has been going to school and seeing his Dad. Mum has not engaged with any professionals and is not the main carer for D. The social worker did a home visit with her manager but Mum refused to open the door.
• October: Mr X wants to take D to the Dentist and register him with a GP. D’s school said they are unable to have him back as he is placing other children at risk and they cannot keep him safe. Mum still failing to respond.
• November: D spent time with Mum over half term. Mum says she would rather D was in care than with Mr X. Miss Y says D should live with Mr X and it needs to be sorted or it will deteriorate further. In the past few weeks Mum has emailed the Council demanding D be brought back to live with her. Social worker is worried as Mum has parental responsibility and can pick D up if she wants to. Manager said if Mum does not accept support offered additional options and legal advice should be sought.
• December: Mr X feels Mum has been given lots of chances and it is frustrating for him as he is funding everything and getting no financial support. D is living full time with Mr X and there is a big difference in his behaviour and school attendance has improved.
• February Core Group Minutes: Mum has not answered any phone calls. D is doing well at school, every report shows he is making good progress. Council are in the process of applying for an Interim Care Order as D is living with Mr X but Mum still has parental responsibility. Initial Court date set for March.
47. From September the Social Worker made home visits to Mr X’s house to see how D was getting on.
48. Pertinent notes from these visits are as follows:
• September: D spending a lot of time with Mr X. Mr X reports he would like to care for D full time. D says he would like to stay with Mr X.
• October: D has been living with Mr X for the last four weeks. He is doing well at school. Mr X bought clothes and shoes for D. D has not had any contact with his Mum.
• November: D more settled living with Mr X. There have been no missing from home episodes, no new safeguarding concerns. D is in a good routine. Worried Mum might exercise her parental responsibility rights at any time. Mr X given a £50 Section 17 payment.
• December: D wants to live with Mr X.
• January: Mr X said he will seek independent legal advice. D is happy living with him. Social worker gave Mr X £50 payment and said the Council could not give him financial support. It is noted that D is settled now and a placement move would be detrimental for him.
• February: D is happy living with Mr X. He is attending school. He see’s his Mum as and when he wants to. D says he wants to live with Mr X forever. Mr X said everything is fine apart from his finances.

Analysis

49. In the Council’s response to our enquiries, it said D was not considered a looked after child and it was a private family arrangement as Mum did not oppose D living with Mr X.
50. This is clearly not the case as D’s Mum stated she would rather he was in care than living with Mr X, and she kept emailing the Council asking it to bring D back to live with her.
51. There are also entries in D’s review meetings where the social worker said they are worried that Mum still has parental responsibility and will take D back into her care.
52. The Council knew D’s Mum did not want him to live with Mr X and it had safeguarding concerns about him living with her. Therefore, the Council should have considered D a looked after child from September 2021 when he started living with Mr X full time. It should have carried out a family and friends foster care assessment on Mr X and started the fostering allowance sooner than it did.
53. This did not happen in this case which is fault by the Council.
54. The Council also knew Mr X was struggling financially. The Council failed to support Mr X financially, and failed to sign post him to other organisations which may have been able to help him maximise his incomings as he was caring for D full-time.
55. The Council noted it may have to get legal advice to ensure Mr X gets the right legal order to give him parental responsibility for D in the August 2021 meeting. However, it did not secure this until December 2021 when Mr X said he was going to get independent legal advice. This delay caused a period of uncertainty for Mr X and D about D’s long-term living arrangements.
56. Mr X was entitled to financial support and did not receive it. He was not given any advice as to how he could proceed to get the living arrangements formalised with D.
57. I therefore find fault with the Council and propose the remedies below.

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Agreed action

58. Within one month of the final decision the Council should:
• Write a personal apology to Mr X for the delay and fault identified above;
• Backdate any support Mr X should have received from August 2021 – March 2022 (taking into account any S.17 payments already made);
• Pay Mr X £350 for stress and inconvenience.
59. The Council should provide us with proof that it has done so.

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Final decision

60. I find fault with the Council for not carrying out an assessment under Section 20 of the Children’s Act 1989 and for failing to provide Mr X with any support, financial or otherwise, causing him distress and frustration.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman