Summary: The Council failed to properly advise Mr and Mrs B when they took care of their grandchild. It failed to progress an assessment to support a special guardianship order application in good time, or to give clear advice about funding for this. The Council did not handle Mr B’s complaint in line with the statutory complaints process. The Council’s shortcomings have caused Mr and Mrs B distress and uncertainty, and has meant they have missed out on support from the Council. It has made some improvements to its policies and its services, and has offered to backdate financial support. The Council has also agreed to take further action to remedy the injustice.

The complaint

1. Mr and Mrs B complain that the Council:
• Wrongly decided that his grandchild came to live with him under a private family arrangement;
• Gave insufficient guidance about the implications of their situation, and wrongly told him the Council would provide financial assistance under a special guardianship order (SGO);
• Failed to give timely and full funding for the SGO application; and
• Failed to deal with his complaint in accordance with its policy and failed to have proper regard for the stage three review panel’s recommendations.
2. Mr B says the Council’s failings made worse an already very difficult situation. The Council’s disregard for the panel’s recommendations has caused additional distress and frustration.

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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. 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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What I have and have not investigated

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. Mr B’s complaint relates to events from December 2020. Mr B first complained to the Council in June 2023 that it was not doing enough to support them financially. However, he did not complain sooner because he was not fully aware that he might have been entitled to support. Mr B received the Council’s final position in June 2024, and then complained to the Ombudsman. Although the complaint spans over three years, I have exercised discretion to investigate from December 2020 because it was not reasonable to expect Mr B to complain sooner.

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How I considered this complaint

7. I considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken into account the comments received before issuing this 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).

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What I found

The law and guidance

9. 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.

10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. In 2013, the Ombudsman published a focus report, ‘Family Values: Council services to family and friends who care for others’ children’. The report highlighted common faults in councils’ handling of cases where children were living with friends and family. This included councils failing to recognise they had a duty to accommodate a child and gaining agreement to an informal family and friends care arrangement under duress.
16. 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.
17. 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.

The statutory complaints process

18. 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.
19. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
20. 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 who is responsible for overseeing the investigation and ensuring its independence.
21. 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.
22. 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.
23. 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.

What happened

24. This is a summary of the main events. It is not a detailed account of everything that has happened.
25. Mr B’s grandchild, K, is disabled and lived with her father. In December 2020, K came to stay with them without notice when her father was arrested. The Police asked Mr B to take K home with him so they could investigate an allegation. The Council’s social worker visited Mr B and his wife at home later that day. Mr and Mrs B signed a statement of expectation. This said that they would not allow contact between K and her father, and they should arrange contact between K and her mother. The statement said that failure to adhere to it might result in legal proceedings and may be taken into account as part of any future assessment of their suitability as carers for K. K’s mother agreed to Mr and Mrs B looking after K during this time.
26. The Council stayed in contact with Mr B throughout December, checking that K had settled and that contact arrangements had been made. The Council visited Mr and Mrs B at home twice that month and Mr B signed another statement of expectation that he should allow telephone contact between K and her father.
27. The Council’s case notes show that as early as January 2021, it was considering what the long-term arrangements should be for K’s care, as the Police investigation into her father was ongoing. The Council referred K to its Children’s Disability Service, but it was decided that K had no unmet needs in terms of her physical health, and she had an Education Health and Care Plan that would be reviewed annually.
28. The Council deemed K a ‘child in need’ and this meant that it visited her regularly to make sure she was not at risk of harm. The Council found that Mr and Mrs B, and K’s mother and father all agreed that K should continue to live with Mr and Mrs B. In time, this meant that they supervised in person contact between K and her father.
29. In March 2021, Mr and Mrs B agreed to be assessed to become K’s permanent carers in case her father received a custodial sentence. The Council did not assess whether K could go to live with her mother. I note however, that there had been some child protection involvement with K’s mother regarding her other children who lived with her.
30. In July 2021, the Council completed an assessment of K’s needs and how these were being met, and Mr and Mrs B’s suitability as her long-term carers. This would enable Mr and Mrs B to apply for an SGO. The Council told Mr and Mrs B that if they became special guardians, it would pay them a regular allowance to support the costs of raising K. The Council closed its case and ‘child in need’ visits stopped. At that stage, K’s father was awaiting a court hearing.
31. The next entry on the Council’s case notes is May 2022. This says Mr and Mrs B had not applied for the SGO because it was not clear at that time whether K would be able to go back to live with her father. The criminal proceedings against him were still ongoing. Mr B and Mrs B now wanted to apply for the SGO. They had received advice that the Council should have been supporting them and K from the beginning. They were concerned that the situation has been going on for so long, and that K’s mother could at any time take K to live with her when this might not be in K’s best interests. The Council agreed that it would update the assessment to see if it could support the SGO assessment. The case note says that the SGO was not required because this was a private family arrangement.
32. The Council resumed the regular Child in Need visits. Mr and Mrs B continued to raise concerns about the long-term instability of K’s situation, and the Council’s lack of progress on the assessment they would need to get an SGO. The Council had told Mr and Mrs B that it would pay the legal costs of the SGO application and gave them a list of solicitors who help with this. Mr and Mrs B instructed a solicitor from the list.
33. The Council completed the SGO assessment in November 2022. As part of this, it had contacted both K’s mother and father. K’s mother said she would oppose the application. The Council did not assess whether K’s mother could meet her needs.
34. At the end of November 2022, the Council’s permanence panel considered the assessment and endorsed the SGO application. It said that this had always been a private family arrangement (as opposed to one that came about in order to avoid care proceedings). The panel notes that it will fund Mr and Mrs B’s legal advice and court fee as an act of good will, but as K living with Mr and Mrs B came about as a result of a private arrangement, it was not obliged by its SGO policy to do so, and it would not pay an ongoing allowance.
35. Mr and Mrs B tried to progress the SGO application, but the Council told them that it would only pay fees of £500. The solicitor said that having seen the assessment, this would not cover their fees. Mr and Mrs B submitted a quote for the legal fees to the Council in March 2023. The Council’s records show that throughout this time, Mr and Mrs B continued to be very concerned about K’s long-term future and that her mother would oppose the SGO.
36. In June 2023, Mr B made a formal complaint to the Council. He said that it was never mentioned or agreed that this was a private family arrangement. As time went on, he asked the Council if they would get financial support and was told this would be paid when they got an SGO. Mr B set out that he believed when K came to live with them, the Council should have considered her a looked after child and would have had a duty to accommodate her and to assess Mr and Mrs B as her carers.
37. The Council responded to Mr B just over a month later. It said that the Police had placed K with Mr and Mrs B. It should not have told them that it would pay an allowance if they got an SGO as this was not in line with its policy. It will fund legal advice for the SGO application now. The Council told Mr B to contact it if he wanted any clarification but did not signpost him to stage two of the statutory process.
38. Mr B requested the Council escalate the complaint to stage two. He said the Police only asked them to have K while they searched the house, and it was the Council that arranged for her to live with them, arriving that day with a statement already prepared.
39. The Council considered the complaint at a meeting but decided that this had always been a private family arrangement.
40. The Council took nearly three months to respond to Mr B’s request for the stage two investigation. It advised Mr B to take the matter up with the Police as it was the Police who had placed K with them. It reiterated that they were not entitled to financial assistance under the SGO policy.
41. On 5 November Mr B again asked for a stage two investigation. The Council responded a month later and told him that it had no further comments and he could request a stage two investigation. That day Mr B requested this for a third time. The Council did not respond and so on 22 December, just over six months from his stage one complaint, Mr B complained to the Ombudsman.
42. At the end of January we found that the Council should complete the statutory complaints process and the Council agreed to start a stage two investigation within four weeks.
43. The stage two investigation was completed by an independent officer (IO) who reported on 5 March. The IO’s report said:
• The Council had followed its SGO policy and was correct to say it had not placed K with Mr and Mrs B. There was no record that they had asked the Council for financial support, but as there was also no record that the Council had discussed the long-term implications with them, the IO partially upheld the complaint.
• The Council had wrongly advised Mr and Mrs B that it would pay a regular allowance if they got an SGO. It had decided at the meeting in August 2023 that this was a private family arrangement and so under the Council’s policy Mr and Mrs B were not entitled to a regular allowance. The IO partially upheld that the Council had given wrong advice.
• The IO also found that the Council was making decisions about funding legal advice for an SGO but had no written policy about this.
44. The IO recommended the Council should:
• Be more transparent when discussing placements with family members about what a family arrangement entails. It should be explicitly addressed.
• Update the SGO assessment, complete a financial assessment and consider whether to pay regular financial support.
• Review the Council’s SGO policy to include a written policy on funding legal advice for SGO applications, and review the limits for this regularly.
45. The Council wrote to Mr and Mrs B on 22 March to agree the recommendations and a week later, Mr and Mrs B requested a stage three panel review the investigation.
46. The stage three panel met on 10 May 2024. It found:
• It was not a private family arrangement when K came to live with Mr and Mrs B. In support of this position, the panel mentioned that the Council’s statement of expectations signed by Mr and Mrs B did not support that the Council deemed this to be a private family arrangement, particularly as it required them to arrange contact with K’s mother, and included what would happen if they did not comply.
• The stage two investigation had not considered the appropriate law and guidance and did not establish what advice the Council had given to Mr and Mrs B when K first went to live with them.
• The Council should have done a full assessment sooner given that K has additional needs.
• The Council had given Mr and Mrs B misleading advice about the financial support it would give them under the SGO.
• The Council had not given Mr and Mrs B sufficient information about how much it could fund their legal advice and SGO application.
• The Council had already amended its policy on the emergency placement of children so it is clear about decision making and roles and responsibilities. It had reviewed its policy on private arrangements, it now covers the legal position, practice standards and management insight. It had also reviewed its other placements to make sure it was satisfied that these had the correct status.
47. The stage three review panel recommended that the Council:
• Review its decision that K came to live with Mrs B as a private arrangement.
• Review its progress on the IO’s recommendations to review practices.
48. The Council wrote to Mr and Mrs B on 7 June 2024. It said that it accepted the stage three review panel’s findings. However, it had reviewed the situation in August 2023 and had decided that this was a private family arrangement and as such, Mr and Mrs B were not entitled to regular financial support. The Council had reviewed its policies so that the long-term implications of friends and family care are discussed at the time, and the Council is clear when it will fund legal advice for an SGO application.
49. Mr B complained to the Ombudsman. In response to our investigation, the Council reviewed what had happened. It concluded that it should have decided that the private family arrangement for K to live with Mr and Mrs B had come to an end in May 2022, when they told the Council they thought they were entitled to financial support, and wanted to apply for the SGO.
50. The Council has offered to backdate what would have been due to Mr and Mrs B from May 2022, and to pay an ongoing allowance of £761pcm. The Council has explained that this amount has been agreed by its finance department and with reference to the Council’s kinship foster care procedures.

Analysis

51. The Council has not properly considered the panel’s findings. The panel gave reasons why it decided that this was a private family arrangement, such as stipulations around contact with the mother and what would happen if Mr and Mrs B did not comply. However, in its adjudication the Council did not refer to the Panel’s reasons nor how it had considered the report. Instead, it referred to a much earlier meeting when it refused to accept that this had not been a private arrangement. The adjudication stage allows the Council to disagree with the panel’s findings. However, the statutory guidance says that if the Council deviates from the panel’s recommendations it should demonstrate reasoning in the response. The Council cannot show why it disagreed with the panel’s findings and this is fault.
52. Turning to the issue of the arrangement when K came to live with Mr and Mrs B, the Council should have given enough information to allow them to give their informed consent to accept a private fostering arrangement. The Council cannot show that it did this and so it cannot side-step its duty to accommodate the child (with Mr and Mrs B if this is the most appropriate placement but as a looked after child). This was fault by the Council.
53. In addition, I am not persuaded by the Council’s reasoning for deciding that it was a private arrangement. In its complaint responses, the Council said that the Police placed K with Mr and Mrs B, despite them being very clear that they had merely picked K up as the Police needed to search the house. The Police told Mr and Mrs B that the Council would be in touch, but the Council says that when it visited them later that day, there was already a private arrangement in place. I am not persuaded the Council can show that grandparents picking up a child and agreeing to care for her that day, have agreed to a private family fostering arrangement.
54. The Council also said that Mr and Mrs B never asked for financial support until May 2022. However, they could not ask for support they did not know they were entitled to.
55. The panel upheld that the Council did not follow its policy when it told them it would make regular payments once an SGO was in place, because at that time it considered the arrangement to be a private one and as such, would not entitle the carer to financial support.
56. The panel also upheld that the Council had not given Mr and Mrs B sufficient information about how much it could fund their legal advice and SGO application.
57. I have found further fault in the Council’s handling of the preparation for the SGO in 2022/23. The Council decided in May 2022 that it would update the SGO assessment of Mr and Mrs B. However, it took too long to complete the assessment and it did not agree its support of the application until November 2022. Nor did it give Mr and Mrs B any reasons for its delay.
58. The Council also took too long to decide whether it would fund the costs of the application, after discovering that these would exceed its usual limit.
59. I have also found further fault in how the Council handled Mr and Mrs B’s complaint. We upheld in a previous decision, that the Council should have proceeded to the stage two independent investigation when Mr B requested this. I have also found that the Council took too long to respond to those requests (over 11 weeks to respond to the first request), inserted additional steps, and failed to properly signpost Mr B to the next stage.
60. The law places a duty on councils to act expeditiously throughout all stages of the statutory complaints procedure. The Council took too long to complete the stage three process from Mr B’s request to the Council’s final adjudication.
61. In summary, I have found the Council:
• Failed to properly consider the stage three review panel’s findings;
• Cannot show that it gave sufficient information to Mr and Mrs B when K came to stay with them, so that they could give informed consent to accepting a private arrangement that she continue to live there;
• Has not been able to show good reasons why this was a private family arrangement;
• Took too long to complete an assessment in support of the SGO in 2022;
• Took too long to resolve the issue of how much of the fees for the SGO it will cover; and
• Did not handle Mr B’s complaint properly in line with the statutory complaints process and took too long to complete this
62. The stage three panel also found that the Council had not given the correct advice about the support it would give Mr and Mrs B if they applied for an SGO.
63. The Council’s shortcomings means that Mr and Mrs B were denied the opportunity to make an informed decision, and it is likely that they and K missed out on support to which they would have been entitled. The delays in progressing the SGO assessment and in resolving the disagreement over the fees caused Mr and Mrs B distress and uncertainty. This is particularly significant because K’s mother had suggested she might not support the SGO application and this meant K’s future was very uncertain for longer than necessary. The Council’s poor complaint handling caused Mr and Mrs B frustration and put them to extra time and trouble trying to resolve the issues.

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Agreed action

64. During the course of this investigation, the Council has offered to backdate what would have been due to Mr and Mrs B from May 2022, and to pay an ongoing allowance of £761pcm. I expect the Council to set out how it has calculated this support in writing to Mr and Mrs B.
65. In addition, within one month of today’s decision, the Council has agreed to:
• Apologise to Mr and Mrs B. 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 in my findings.
• Pay to Mr and Mrs B, the financial support they would have received had the Council decided that this was not a private family arrangement when the child first came to live with them in December 2020. Again, I expect the Council to set out how it has calculated this support in writing to Mr and Mrs B.
• Pay to Mr and Mrs B £250 in recognition of the time and trouble they were put to when the Council failed to deal with the complaint properly.
• Share this decision with relevant staff.
66. The Council should provide us with evidence it has complied with the above actions.

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Final decision

67. I have completed my investigation. There was fault by the Council causing injustice to Mr and Mrs B.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman