Summary: Miss B complained the Council failed to offer appropriate advice or support to her, after her grandchild ‘C’ was left in her care. We upheld the complaint finding the Council delayed carrying out an assessment which found C was a child in need and in treating Miss B as a kinship foster carer. These faults caused distress to Miss B and a loss of fostering allowance payments. The Council has accepted these findings and at the end of this statement we set out action it has agreed to remedy this injustice.

The complaint

1. I have called the complainant ‘Miss B’, who is the grandparent of child ‘C’. There are two parts to Miss B’s complaint. First, that between July 2020 and April 2023, the Council failed to respond appropriately to several reports she made expressing concerns for C's welfare. Second, that in May 2023 C’s mother (‘Ms D’) abandoned C to Miss B’s care. Miss B says the Council failed to offer appropriate advice or support until February 2024 when it accepted she was C’s kinship foster carer.
2. Miss B says this resulted in C not receiving adequate support with potential harm to her welfare. Miss B has also experienced distress through not feeling supported by the Council, including financially, when she needed this.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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)
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)

Back to top

How I considered this complaint

7. Before issuing this decision, I considered:

• Miss B’s complaint to the Ombudsman and supporting information she provided;
• correspondence between Miss B and the Council about the matters subject to the complaint, which pre-dated our investigation;
• information provided by the Council in reply to written enquiries;
• any relevant law, Government guidance or Council policy referred to below;
• any relevant guidance published by this office, referred to below.

8. I also gave Miss B and the Council a chance to comment on a draft version of this decision statement. I took account of any response they made before finalising this statement.
9. Under our information sharing agreement, we have shared this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Key legal considerations

Early Help Services

10. Government guidance contained in “Working Together to safeguard children” says “practitioners should be alert to the potential need for early help” for children whose family circumstances present challenges such as drug or alcohol misuse. Early Help services are those which support children and families as soon as problems emerge.

Section 17 of the Children Act 1989

11. This says councils must safeguard and promote the welfare of children within their area who are in need.
12. 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.

Section 20 of the Children Act 1989

13. This 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 is prevented from providing suitable accommodation or care.

14. 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.
15. Councils need to distinguish between private arrangements made between parents and carers, and arrangements in which the child becomes accommodated under the Children Act 1989 and so becomes a looked after child.
16. The courts have considered when an arrangement for a child to live with a relative is 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.
17. 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.
18. Friends and family (or kinship) foster carers can receive a fostering allowance and other practical support from the council.
19. The Council has a policy covering kinship foster care. It notes how relatives may take on the care of children because of factors such as drug or alcohol misuse. It says arrangements often begin in an unplanned way or on a short-term basis, which can then become open-ended or permanent. It says this can put relatives caring for children under pressure to arrange accommodation, childcare, education provision and so on.
20. The policy says the Council should consider whether a child cared for by family should become one looked after by the Council. It draws attention to the tests set out in Section 20 and its duty to accommodate children when these apply. It says the “most commonly encountered” scenario is that parents “due to their limitations, or the risk they pose” can no longer care for their children.
21. The policy also says: “making sure the child’s legal status is understood is vital. From the outset all parties, including the parents and carers, are clear about the legal status of the child and its implications […] it is not merely sufficient for the social worker to know what he or she is doing or intending to do. Such information MUST be shared and understood by the lay person (particularly the potential carer involved) and it MUST be done at the time” (emphasis as per original).

Special Guardianship Orders

22. 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 lives will become their Special Guardian. They will have some, but not all, parental responsibility for the child. They will not have the same controls as looked after children, whose cases the council must keep under regular review.

Chronology of key facts

23. What follows summarises the key events forming the complaint. It is not fully comprehensive.
24. During the events covered by this complaint Miss B has lived in her own home. Her daughter, Ms D, lived in the property until April 2021 when she gained her own tenancy. But after that Ms D continued spending time with Miss B often stopping over with her infant child C. In addition, C spent nights in Miss B’s care alone. C rarely spent time at Ms D’s flat. C’s father has parental responsibility. But he separated from Ms D after C’s birth.
25. In July 2020 the Council received contact from Miss B expressing concern that Ms D used drugs which could impact on C’s well-being. The Council learnt that Ms D had been referred to an organisation who could support her. It resolved to take no further action.
26. In May and June 2021 Miss B made further contacts with the Council, again concerned about Ms D using drugs. The Council’s advice and guidance service referred her to its early help services. In turn, the early help service offered Ms D support, including referring her to an organisation who could support her. The notes of the Council’s contact with Miss B from May 2021 said she considered Ms D took good care of C, but worried in case her drug use worsened.
27. In August 2021 the Council received contact from a third party, concerned for C’s well-being. The Council’s advice and guidance service contacted Miss B as part of its enquiries and it recorded her offering reassurance around C’s care. This included recording that if Miss B was at work, C would stay with Miss B’s parents (i.e., C’s great-grandparents). Miss B says this is wrong, as her parents were both elderly and in poor health and therefore unable to offer support with childcare.
28. In December 2022 and January 2023, the Council received further contacts from Miss B. Its notes recorded concern that after a period of staying clean, Ms D was misusing drugs again. It recorded Miss B saying she now looked after C full-time. It also recorded Miss B being in employment and C attending school. The Council notes say it went through a ‘safety plan’ with Miss B and that is saw it had no further role. It said it advised Miss B not to allow Ms D contact with C if under the influence.
29. In February 2023 Miss B contacted it again with her concerns. The Council again recorded doing a ‘safety plan’ with Miss B saying C “should stay with her till [Ms D] gets treatment […] [Ms D] can still go round and visit and stay overnight but [Miss B] to remain as protective factor if [Ms D] is under the influence”.
30. In May 2023 Miss B got in touch with the Council to say Ms D had abandoned C into her care. Miss B had not seen Ms D for over a week. She told the Council Ms D continued to claim welfare benefits for C. The Council also recorded Miss B wanted advice on “obtaining an order” to assume caring responsibility for C. Miss B understood Ms D still had parental responsibility and so could return and take C into her care. Miss B says she does not agree that she ever asked the Council about any order, not understanding at the time its powers or responsibilities. She says her concern was only for C’s welfare and enquiring what the Council might do to assist.
31. Following this contact the Council passed the case to its social work team which undertook an assessment of need. It decided C was a child in need under Section 17 of the Children Act. The Council helped Miss B to get child benefit for C.
32. Both the assessment and accompanying social work notes discussed Miss B obtaining a child arrangement order or a special guardianship order (SGO). By June 2023 the Council resolved to support Miss B in gaining a SGO. There is no suggestion in the notes social work staff considered if Miss B was a kinship foster carer before late June 2023. It was at that point Miss B told the Council she wanted to be a “kinship foster carer” for C, and the arrangement she care for C “was not voluntary”. Miss B went on to explain that while Ms D had previously lived with her, and subsequently spent much time in her house, Ms D still maintained primary care for C. For example, meeting C’s personal care needs, dressing them and taking them to school.
33. The Council responded to Miss B that it wanted a permanent arrangement for C, which a SGO would provide. Miss B explained the financial pressures caused to her by caring for C, which led her to leave her job. She also said she wanted Ms D to have another chance to care for C in the future if she could overcome her drug misuse.
34. From mid-July the Council began making payments to help support Miss B under Section 17. These began at £50 a week and then increased to £100 a week from the end of the month.
35. Despite her reservations, Ms D continued to make an application for a SGO in July 2023. The Council paid the fees for this. But by November 2023 Miss B had withdrawn her application. She maintained that she wanted the Council to consider her a kinship foster carer instead.
36. In December 2023, the Council reconsidered its approach. It agreed to treat C as a looked after child, with Miss B providing accommodation to them under Section 20 of the Children Act.

My findings

37. I make no finding of fault against the Council for how it responded to Miss B’s contacts in 2020 and 2021. I considered it important to look at these as part of my investigation. I did not consider any complaint about the Council’s response ‘late’, because I wanted to understand how the Council’s approach to this case evolved over time.
38. I found there was nothing in the notes of those contacts which suggested any specific concerns for C’s welfare. Instead, there was a general concern expressed that Ms D’s parenting may suffer because of her drug use. The primary response of the Council was therefore to direct Ms D towards early help services which could support her.
39. I cannot say that was a flawed approach. I cannot see the Council ignored any relevant evidence about C’s welfare or took account of anything irrelevant when reaching its decisions on how to respond. I considered the Council’s approach consistent with Government guidance contained in ‘working together’.
40. But I have concern about how the Council responded to Miss B’s later contacts from December 2022 onward. The earlier contacts had suggested Miss B provided support for Ms D in parenting C. But these later contacts suggested the balance had shifted. Miss B had now become the primary carer for C.
41. Until May 2023, the Council did not consider C’s case in detail. It did not undertake an assessment of their needs to see if they were a child in need. But its notes show that it did not think Ms D safe to undertake C’s care. It considered it important there was a ‘safety plan’ to protect C.
42. I understand the references to there being a ‘safety plan’ for C have caused confusion for Miss B. I understand why. First because the phrase implies a written document when none exists. Second, because in replying to Miss B’s complaint the Council said it referred to Miss B sometimes leaving C in the care of her parents (C’s great-grandparents). I do not know how the Council came to record this in August 2021. But it recorded it only once and I do not consider it relevant to the Council’s later actions. Instead, I find from late 2022 onward, when the Council referred to a ‘safety plan’, it meant that Miss B should not allow Ms D unsupervised access to C.
43. In these circumstances, the Council should have undertaken an assessment of C sooner. From December 2022 the Council knew Miss B was not C’s parent and so had no parental rights. Yet, she provided almost full-time care for C. Further, it knew this arrangement arose because of limitations on Ms D’s parenting. It also knew the arrangement put strain on Miss B and she contacted it to ask for help. Yet having established C was in no immediate harm, the Council showed no further curiosity. For example, it made no enquiries to find out how caring for C impacted on Miss B, how she juggled work and child-care or if she received any welfare benefits payable for C’s care. There was no enquiry into whether Ms D had effectively abandoned C into Miss B’s care and whether the Council may have duties under Section 20 of the Children Act.
44. On this last point, clearly the Council did not consider C should be left in Ms D’s care. The Council did not say what it would do if Miss B allowed this (or if Ms D removed C from Miss B’s care). But the clear implication was that it might otherwise have to take C into the Council’s care.
45. This failure to consider a potential Section 20 duty extended beyond May 2023, when the Council decided to assess C’s case. It does not appear to have given any serious consideration to whether the duty applied until December 2023, some twelve months after Miss B advised she was caring for C full-time. I accept the matter came up in discussion after Miss B raised it in June. But I cannot see the Council ran through a checklist of relevant questions to consider if the duty applied.
46. The Council was therefore too slow to undertake an assessment of need and too slow to consider if it owed the Section 20 duty. These were both faults.
47. In considering the injustice caused to Miss B from these faults I note first the distress caused by not receiving a more considered response to her circumstances when this was needed. I have also considered what the Council should have done in response to her contacts from December 2022 onward. Had it asked itself a series of questions to decide if it owed C a duty of accommodation under Section 20, I consider the sequence would have run as follows.

• Was C a child? Yes.
• Was C a ‘child in need’? Yes.
• Was C within the council’s area? Yes
• Did C appear to require accommodation? Yes – what would be the alternative if C lived away from Miss B.
• Did C require accommodation because of one of the specified reasons? Yes – Ms D had parental responsibility but had either abandoned C into Miss B’s care (this probably did not apply until May 2023) or else was prevented at least temporarily from providing them with suitable care because of her drug misuse (something applying from the earlier date).
• What were C’s wishes and feelings about the provision of accommodation for them and what consideration, considering the child’s age and understanding, is given to the child’s wishes? These questions were arguably not applicable to a child of C’s age, but there is no reason to believe the arrangement was contrary to C’s wishes.
• Does any person with parental responsibility for the child, who is willing and able to provide them with accommodation, object to the council’s intervention? No – when the Council spoke to Ms D and C’s father from May 2023 onward, neither were willing or able to provide them with accommodation.
• If there is an objection by someone with parental responsibility, is there agreement from an individual who has a child arrangements order setting out where the child should live. No. Ms D or C’s father have never objected to C living with Miss B.

48. It is not part of Miss B’s injustice (and nor was it fault) for the Council to discuss with her the option of a SGO or express its preference for this arrangement. The Government introduced such orders to provide a firm footing for children in C’s position. It provides the Guardian with more certainty in making decisions for the child, without Council involvement which might sometimes feel like interference. For these reasons, many kinship carers go on to obtain an SGO after a period of foster care. Councils also must consider paying Special Guardianship Allowance, although this is means tested. But it should never have presented this to Miss B as the only option. And even if Miss B wanted to pursue an SGO, the Council still needed to consider how to support C for any time between her entering Miss B’s full-time care and her obtaining the order. I consider it would have found Miss B, C’s kinship foster carer from around January 2023 therefore had it properly addressed itself to C’s situation then.

Back to top

Agreed action

49. The Council accepts the findings set out above. To remedy the injustice caused to Miss B it has agreed that within 20 working days of a decision on this complaint it will provide her with:
1. an apology which will accept the findings of this investigation and follow advice contained within Section 3.2 of the Ombudsman’s published guidance on remedies Guidance on remedies - Local Government and Social Care Ombudsman;
2. a payment to cover the foster care payments Miss B would have received from 1 January 2023 had the Council treated her as a kinship foster carer from that date. The Council can deduct any sums paid to Miss B from this date under Section 17 of the Children’s Act or as Child Benefit. The Council will include a calculation with its payment;
3. an additional symbolic payment of £500 to reflect Miss B’s distress at the Council’s lack of assessment and support at the time it was needed.
50. In addition, the Council has agreed to learn lessons from this complaint and make service improvements. Within three months of this decision, it will:

• brief all relevant staff within its advice and guidance service, and its children social work teams, on the findings of this investigation to stress the importance of prompt assessment to determine if a child is in need and / or requires accommodation under Section 20 of the Children Act. The briefing can be in-person or online and can be incorporated into any existing team meetings or scheduled training if preferred. It will not simply be in writing given the Council already has adequate written materials on this subject.

51. The Council will provide us with evidence when it has complied with the above actions.

Back to top

Final decision

52. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Miss B. The Council has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman