Summary: Ms X complained the Council failed to provide her with appropriate support when she agreed to care for her grandchild, F, between 2017 and 2020. The Council upheld Ms X’s complaints after investigating them under the statutory children’s complaints procedure. The Council failed to provide her with relevant support or explain the implications of caring for F under a private arrangement. The Council agreed to pay Ms X £1000 to recognise the distress and uncertainty caused to her as well as the further £1000 it has already offered to cover reasonable expenses. It also agreed to carry out service improvements.

The complaint

1. Ms X complains the Council failed to provide her with appropriate support when she cared for her grandchild, F, between 2017 and 2020 when F’s mother could no longer look after them.
2. Ms X says the period looking after F caused her distress, uncertainty and financial loss. The Council upheld her complaint following an investigation under the statutory children’s complaints procedure but she is unhappy with the proposed remedy.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)
6. 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.

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How I considered this complaint

7. I spoke to Ms X about her complaint and considered information she provided.
8. I considered the investigation records and adjudication letters from the children’s statutory complaints procedure in relation Ms X’s complaint.
9. Ms X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Arrangements for the care of a child

10. Where those with parental responsibility are unable to care for a child, a child may be cared for by friends or family. These arrangements can be made in two ways:
• The child can be “looked after” by the council. Under the Children Act 1989, councils have a duty to accommodate children who appear to the council to require it as a result of: (a) there being no person with parental responsibility for the child; (b) their being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing them with suitable accommodation or care. A council can identify a family member or friend who agrees to foster the child. A council meets its duty to accommodate the child and the person is deemed to be a family and friends foster carer; or
• A private family arrangement. This happens when a close relative agrees with the parent to take on the care of the child. If the arrangement is a private family arrangement, those holding parental responsibility for the child continue to be responsible for the financial arrangements to care for the child. The Council does not have a duty to provide support in these cases but may choose to do so.
11. The courts have considered the question of whether arrangements for a child to live with a relative or friend are truly a private arrangement. In a key case, the Court said 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 duties, under the Children Act, to provide the child with accommodation.

Child in Need (CIN)

12. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
13. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

Children’s statutory complaints procedure

14. Section 26(3) of the Children Act (1989) says all functions of the Council under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure.
15. Complaint investigations under the statutory procedure consist of three stages:
• Stage 1: Staff within the service area complained about try to resolve the complaint.
• Stage 2: An Investigating Officer (IO) and an Independent Person (IP) investigate the complaint. The IO writes a report which includes details of findings, conclusions and outcomes against each point of complaint (ie “upheld” or “not upheld”) and any recommendations to remedy injustice to the complainant.

Once the IO has finished the report, a senior manager should act as adjudicating officer. They will consider the complaints, the IO’s findings, conclusions, and recommendations, as well as any report from the IP, and the complainant’s desired outcomes. The adjudicating officer should write to the complainant with their decision on each complaint.

• Stage 3: A review panel considers the complaint. Following the panel, the members write a report containing a brief summary of the representations and their recommendations for resolution of the issues (The Children Act 1989 Representations Procedure (England) Regulations 2006 19(2)).
3. Unless there is evidence of fault in the investigation process, the Ombudsman will not usually re-investigate a complaint which has been through the full procedure. This is because a properly conducted investigation is independent and robust.

What happened

Background of key events

17. In March 2017, F, who was a Child in Need (CIN) with autism, lived with his mother, Ms S. Following an incident which was attended by police and social workers, F went to live with his grandmother, Ms X.
18. Records show F moved in with Ms X and her son (F’s Uncle) in April 2017. The relationship between F and his Uncle broke down very early on due to F’s behaviour. Records show F regularly caused damage to Ms X’s property and frequently assaulted Ms X. Ms X found it very difficult and distressing caring for F which took its toll both emotionally and financially.
19. Ms X looked after F for three years until an incident in May 2020 which involved F assaulting Ms X while she was driving her car. Following this Ms X decided she could no longer look after F.
20. In June 2020 F was accommodated by the Council and moved into residential care.

Ms X’s complaint to the Council

21. Ms X complained to the Council in June 2020. Specifically, she complained:
• The Council failed to provide her with support as a carer for a child which social services had knowledge of.
• The Council failed to provide support for F as a CIN. Ms X said she only found out F was a CIN in February 2019.
22. The Council failed to progress Ms X’s complaint under the statutory complaints procedure during 2020 and 2021. Ms X complained to us about this matter. Following our investigation the Council agreed to carry out a stage 2 investigation and paid Ms X £300 to acknowledge the frustration the delays caused.

The stage 2 investigation

23. The Council investigated Ms X’s complaint at stage 2 of the statutory children’s complaints procedure and the investigator completed their report in March 2022.
24. The stage 2 investigation partially upheld both of Ms X’s complaints. It concluded the evidence showed the arrangement was a private arrangement. It found Ms X had requested support and respite on a number of occasions but the Council refused. The investigation did find the Council provided Ms X with direct payments so F could attend clubs but found the Council could have done more to provide some respite for Ms X over the three years she cared for F.
25. The stage 2 investigation further found the Council failed to discuss or inform Ms X about the implications of F being a CIN and what support might have been available. The investigation found F was a CIN and assessments had previously been completed but Ms X was never made aware. It found no evidence the Council shared any of the CIN records with Ms X. It said Ms X was entitled to see a CIN plan and an initial CIN meeting should have taken place.
26. The stage 2 investigation recommended the Council apologise to Ms X and consider a payment to reflect the failures identified.
27. The Council wrote to Ms X with its stage 2 adjudication letter. It accepted that although the arrangement to care for F was a private arrangement between Ms X and Ms S, the Council could have done more to support Ms X. The Council said there was limited evidence that showed any discussions took place about what support could have been provided. It also agreed that CIN assessments should have been shared with her.

Stage 3 panel review

28. Ms X was unhappy with the conclusion of the stage 2 investigation. Ms X disagreed that the arrangement was a private one. Ms X said Ms S forwarded child benefit to her but during the three years she cared for F she spent thousands of pounds on house repairs, fuel and other expenses.
29. The Council wrote back to Ms X and reiterated the stage 2 investigation findings that showed no evidence the Council had considered accommodating F at the time and no evidence Ms X had refused to care for him. The Council said it would consider reasonable out of pocket expenses for Ms X.
30. Ms X asked the Council to escalate her complaint to a stage 3 review panel.
31. The stage 3 panel reviewed Ms X’s concerns. The panel agreed the arrangement to care for F was a private one and said evidence showed Ms X acted as a concerned grandmother. The panel however found Ms X did not receive adequate support, for example, help with purchasing extra furniture. The panel found the Council did not provide any consistent support to help Ms X explore a more formalised arrangement such as a Special Guardianship Order. There was also unexplained rejections for respite support which the panel found difficult to understand. The panel highlighted statutory guidance which sets out that family and friends carers should be made aware of relevant support services, regardless of whether the arrangement is informal. The panel upheld all of Ms X’s complaints. The panel recommended the Council review its private care arrangements and consider any improvements it could implement.
32. The Council wrote to Ms X with its stage 3 adjudication letter. The Council accepted that on reflection it could have done things differently. It said it considered the arrangement a private one. However, as a gesture of goodwill the Council offered Ms X £500 to acknowledge the distress caused to her and a further £1000 to cover reasonable expenses. It agreed to review its private care processes as recommended by the panel.
33. Ms X remained unhappy and complained to us.

My finding

34. It is not our role to reinvestigate matters which have already been subject to a properly conducted and independent investigation. To do so would not be a good use of public resources. Instead, our role is to consider the following:
• was the investigation properly conducted and are the conclusions evidence based. If not, would the Ombudsman reach a different view based on the information available to us?
• did the Council offer a proportionate remedy for the injustice caused by fault? If not, would the Ombudsman recommend any further remedial action?
• has the Council fully implemented any agreed remedy? If not, has the delay caused any further injustice to the complainant?
35. The stage 2 investigation and stage 3 panel review were properly conducted. The investigating officer (IO) and the stage 3 panel considered relevant evidence and concluded the evidence showed the arrangement for Ms X to care for F was a private one. As the Council did not place F into Ms X’s care or play a major part in doing so, there was no legal duty for it to provide her with financial support. The financial responsibility to maintain the child remained with Ms S, as she had parental responsibility. Ms X disagrees but further investigation by me into this would not achieve anything more.
36. The Council has upheld Ms X’s complaints in full. The IO and the stage 3 panel agreed the Council failed to provide Ms X with relevant support throughout the three years she cared for F. Although the investigation concluded the arrangement was a private one, in line with relevant guidance it should have made Ms X aware of relevant support services and the implications of caring for F. There is no evidence it did so. The investigation also found F was a CIN however Ms X was not made aware and no initial CIN meeting was held. This meant Ms X and F missed out on applying for relevant CIN support.
37. The investigation records show the three years caring for F caused Ms X significant distress. F damaged her property, assaulted her and it affected her mental and physical health. The lack of support leaves Ms X with uncertainty around whether things could have been different. The Council has offered £500 to remedy any distress caused to Ms X. However, given the prolonged period of distress over a three year period and the uncertainty caused by the lack of support, I do not consider that suitable and have made a further recommendation below. The Council’s offer of £1000 to cover reasonable out of pocket expenses is appropriate.

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Agreed action

38. Within one month of the final decision the Council agreed to:
• Apologise to Ms X and pay her £1000 to recognise the distress and uncertainty caused to her when it failed to explain the implications of caring for her grandson, F, and then failed to provide relevant support and guidance over the three-year period she cared for him.
• Pay Ms X the £1000 it has already offered her for reasonable out of pocket expenses incurred during the three years she cared for F.
• Explain how it has reviewed its private care arrangement processes and what improvements it has put in place, as it agreed to do following the conclusion of the complaints process.
39. Within two months of the final decision the Council agreed to:
• Consider developing a leaflet which fully explains to people the implications of caring for children and young people under a private family and friends’ arrangement.
• Review its relevant policy to ensure staff are aware that where people are considering caring for children or young people under a private arrangement they should explain the implications of such arrangement and provide information about what support services are available. The policy should ensure staff properly evidence and record this on the relevant case notes.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I completed my investigation. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman