Summary: Mrs X complains the Council has not dealt properly with Childrens Social Care. The Council wrongly assessed the nature of the care arrangements and did not complete a review of financial support needed. Mrs X suffered financial hardship. The Council should complete a review of financial support.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has not dealt properly with Childrens Social Care because it:
• failed to provide s17 support to her;
• failed to consider her as a family and friends carer;
• failed to provide SGO support payments to her; and
• failed to provide the remedy as proposed in the stage 3 complaint (financial assessment)
2. Mrs X says she has suffered avoidable distress and financial loss

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I spoke to Mrs X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
9. Mrs 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

Law, guidance and policies

Friends and family carers

10. 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.

Councils cannot accommodate a child under section 20 if a person holding parental responsibility objects and is willing and able to care for the child or arrange care for the child.

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.

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.

11. 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.

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.

Special Guardianship orders/allowances

12. Special Guardianship is an order made by the Family Court that places a child or young person to live with someone other than their parent(s) on a long-term basis. The person with whom a child is placed will become the child’s Special Guardian.
13. Government guidance on the Special Guardianship Regulations sets out the circumstances in which councils should provide financial support to a Special Guardian. These include situations where there is a financial obstacle to a guardianship arrangement being made, and where the child requires special care. There is no overall obligation on councils to provide support in every case in which a Special Guardianship Order (SGO) is made.

If support is provided the council must review the arrangements at least once a year.

14. As part of private law proceedings involving children, the court may ask the Council to produce a section 7 or 37 report. The court will then consider the report as part of its decision making. Because section 7 and 37 reports form part of court proceedings, we have no jurisdiction to investigate their preparation or content.

Statutory Childrens complaints procedure

15. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. We also published practitioner guidance on the procedures, setting out our expectations.

The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.

If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.

Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.

The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.

If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.

16. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.

However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.

What happened?

17. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
18. Mrs X lived with one of her daughters and two grandchildren. Mrs X had another daughter and grandchild who lived separately.
19. In December 2021, Mrs X’s daughters were both taken into custody by the police. Her grandchild living separately then came to live with her.
20. Mrs X applied for a SGO for all three grandchildren in March 2022. The SGO was granted by the court in January 2023.
21. The Council said Mrs X was not entitled to special guardianship support because the living arrangements were a private arrangement. The Court invited the Council to consider whether or not it should provide financial support for Mrs X.

Analysis

22. The Council considered Mrs X’s complaint through the Children’s Social Care Complaints procedure.
23. The Council said in its stage one and stage two complaint responses, that the arrangement for Mrs X to care for her grandchildren was a family arrangement.
24. The Stage two investigation found that:
• Mrs X was not given any written information regarding the options she had available to her in respect of caring for her grandchildren.
• 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 or seeking a Special Guardianship Order or Residence Order. There was no evidence that this detail was explained to Mrs X and that she had gained a full understanding of what had been said to her during discussions.
• The Local Authority did not seek agreements from the children’s parents or from Ms X regarding the arrangements.
25. The stage three panel found that:
• It had been difficult to accurately assess Mrs X’s financial circumstances.
• It could not conclude that the arrangements were solely a private family arrangement.
26. However, the stage three panel did not uphold Mrs X’s complaint that the arrangement to care for her grandchildren was not a private arrangement between herself and her daughters.
27. The stage three panel made the following recommendations
• For the outcome of the financial assessment which was recommended by the investigating officer and accepted by the local authority to be confirmed and actioned without any further delay.
• For the relevant case law regarding family placement and as specified in this report to be shared with officers as part of continuing professional development
• For the issue of social workers accompanying police officers during similar circumstances to be discussed as part of the safeguarding partnership arrangements.

Action by the Council

28. The Council says it has tried to complete a financial assessment of Mrs X’s circumstances in September 2023 but has been unable to complete this because Mrs X is not claiming the benefits she is entitled to. It says when Mrs X is able to evidence all benefit claims are correct then a financial assessment can be completed.
29. The Council has updated the forms and process that it follows to ensure information is provided to carers about the options open to them and that it is recorded.
30. The Council says the issue of social workers accompanying police officers during similar circumstances has been discussed as part of the safeguarding partnership arrangements. Police will in all possible circumstances liaise with the Council in such circumstances.

Is the Council at fault?

31. On the balance of probabilities, Mrs X was not provided with sufficient information to be able to make a reasoned decision about how her grandchildren should be looked after. The arrangement could not have been a private family one. This is fault by the Council.
32. Mrs X told me she has provided all the relevant information about her financial circumstances to the Council. The Council has not completed the financial assessment. This is fault by the Council. As the stage three panel concluded, Mrs X has suffered financial hardship.

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Agreed action

33. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Assess the information it holds about Mrs X’s financial circumstances.
• If it believes it has insufficient information to make a decision, write to Mrs X specifically outlining the information that it requires and work with her to enable this to be provided.
• Complete the review of all financial support that should have been offered to Mrs X from December 2021 onwards.
• Pay Mrs X the sum identified by the review above.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have found fault by the Council, which caused injustice to Mrs X. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman