Summary: Mrs B says the Council failed to provide her with any advice, support or options when she took on care of her niece in 2020, unreasonably refused to consider her complaint about that and failed to provide her with any advice about securing a special guardianship order. The Council failed to recognise its involvement in setting up the placement in 2020, failed to consider Mrs B’s complaint and failed to give her any advice about special guardianship. Backdated payments, funding for some legal advice for Mrs B and training for officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• failed to provide her with advice, support or options when she took on care of her niece in 2020;
• unreasonably refused to consider her complaint about that; and
• refused to provide her with any advice about securing a special guardianship order when she asked for it in 2023.
2. Mrs B says the Council’s actions have had a significant financial impact on her family and she has experienced stress from not having any advice or support.

Back to top

The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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 Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

What should have happened

9. The law says councils have a duty 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;
• his/her 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 or care. (Children Act 1989, section 20).
10. The law requires councils to firstly consider a placement with parents, then family and friends who are willing and able to act as foster carers before considering unrelated foster carers. (Children Act 1989, section 22C)
11. If the council makes arrangements for a child to be accommodated by someone other than its parents, the council must provide financial support to maintain the child in the form of a fostering allowance as well as practical support to the 'looked after child'.
12. 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. (London Borough of Southwark v D [2007] EWCA Civ 182)
13. If a person becomes a family and friends foster carer, they are entitled to receive a fostering allowance and other practical support from the council for them and the child. A fostering allowance is provided to cover the cost of caring for the child.
14. 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.

What happened

15. Mrs B’s niece began living with her father in 2019 but was spending weekends at Mrs B’s house. Following an incident in 2020 the Council carried out a section 17 assessment and told Mrs B the child needed to remain living with her. The Council said it may require Mrs B to obtain a care arrangement order at some point in the future if the parents of the child did not agree. Mrs B’s niece has therefore lived with her since March 2020. The Council did not provide any support, including financial support.
16. In 2023 Mrs B put in a complaint to the Council after speaking to somebody else in a similar situation to her. That put Mrs B on notice she should have been treated as a friends and family foster carer and received a fostering allowance. Mrs B also asked the Council about pursuing a special guardianship order. The Council declined to consider the complaint as it was more than 12 months after the events complained of and the officers that had dealt with the case at the time no longer worked for the Council.

Analysis

17. Mrs B says the Council failed to provide her with advice, support or options when she took on the care of her niece in 2020. Mrs B says until 2023 she was unaware she was a friends and family carer and should have received a fostering allowance for her niece.
18. I do not consider this complaint out of time for the Ombudsman’s purposes and therefore I do not need to decide whether to exercise the Ombudsman’s discretion to investigate the complaint. That is because I am satisfied Mrs B did not know about the alternative options available to her when she took on care of her niece until 2023. I am therefore satisfied her complaint has been submitted within 12 months of her knowledge that things might have gone wrong.
19. The Council says it treated the arrangement from 2020 as a private arrangement. The Council accepts though now it has reviewed the documentary records it took that view based on its understanding Mrs B already had a private arrangement in place whereby she looked after her niece regularly while she was in the permanent care of her father. The Council accepts it brokered the arrangement for Mrs B's niece to move in with her permanently. The Council accepts it should have carried out an assessment at that point to establish whether Mrs B was suitable for approval as a temporary foster carer for her niece. The Council accepts it failed to do that and also accepts this is fault. I am concerned about that and also about the lack of information given to Mrs B when she took on full time care of her niece.
20. The Council also accepts as it has no concerns about Mrs B's care for her niece it is likely if it had acted as it should have done in 2020 it would have approved Mrs B as a foster carer and paid her the foster carer's connected person’s allowance. To remedy that the Council has offered to backdate payment of the family and friends foster carer connected person's arrangement payment from 9 March 2020 when it brokered the living arrangement. I welcome the Council's willingness to accept it was at fault here. I consider the remedy the Council has offered appropriate for this part of the complaint.
21. I consider Mrs B could have avoided having to make a complaint to the Ombudsman if the Council had accepted her complaint and responded to it rather than saying it was out of time. I appreciate the officers that dealt with the case in 2020 no longer work for the Council. However, it is clear from the Council's response to the Ombudsman the documentary records would have allowed the Council to fully investigate the complaint. It is also clear part of the complaint was around the Council’s failure to give Mrs B any information about the options when her niece went to live with her full time which meant she did not know there was anything to complain about until 2023. Refusing to consider the complaint is therefore also fault. That then affected the Council's consideration of the request for advice about special guardianship as that was missed because the Council declined to pursue the complaint. That, again, is fault.
22. I am satisfied though the Council has offered the following additional remedy which I consider appropriate:
• funding for up to two hours legal advice for Mrs B if she wishes to pursue a special guardianship order;
• to pay for the court application should Mrs B wish to pursue a special guardianship order;
• to liaise with the council where Mrs B is currently living to determine what services are available to support Mrs B's niece; and
• to make a formal referral to the council where Mrs B is currently living for ongoing support as appropriate and necessary.
23. Alongside those remedies I recommended the Council carry out a training session for social workers on the content of the Council's friends and family policy. That is to ensure clear guidance is given to social workers about when care of a child should be treated as a private arrangement as opposed to one arranged by the Council and the type of information and support that should be provided to potential carers in those circumstances. The Council has agreed to my recommendation.

Back to top

Agreed action

24. Within one month of my decision the Council should:
• apologise to Mrs B for the distress, frustration and upset she experienced due to the faults identified in this decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended;
• offer to fund up to two hours legal advice for Mrs B should she wish to pursue a special guardianship order;
• offer to pay for a court application should Mrs B wish to pursue a special guardianship order for her niece; and
• if Mrs B agrees, liaise with the council where Mrs B is currently living to determine what services are available to support Mrs B’s niece and arrange for a formal referral if required.
25. Within two months of my decision the Council should pay Mrs B a backdated amount to reflect the family and friends foster carer connected person's payment she would have received from 9 March 2020.
26. Within three months of my decision the Council should carry out a training session for social workers to ensure they know about the Council’s responsibilities under the Children’s Act and the Council’s family and friends policy. That training should include information about what advice and support should be provided to those potentially taking on the care of a child and the information to be given about the options, including financial.

Back to top

Final decision

27. I have completed my investigation and uphold the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman