Summary: Mr and Mrs X complained about the Council’s action since placing their grandson in their care in August 2022. They complain the Council has failed to provide appropriate financial and practical support to assist them in caring for their grandson. We found the Council’s failure follow proper procedure when it placed their grandson in Mr and Mrs X’s care is fault. As was the failure to provide clear information, explanations and support, including financial support. These faults have affected Mr and Mrs X’s health and wellbeing and caused them significant financial difficulties. The Council has agreed to apologise and make a payment to Mr and Mrs X and carry out the stage two report and stage three panel recommendations to address these faults.

The complaint

1. The complainants, Mr and Mrs X complained about the Council’s action since placing their grandson in their care in August 2022. They complain the Council has failed to provide appropriate financial and practical support to assist them in caring for their grandson.
2. Mr and Mrs X also complain about poor communication and a lack of consistency regarding their grandson's placement with them and the support they will receive. They complain the Council wrongly decided, seven months after placing their grandson in their care, that it was a private family arrangement.
3. Mr and Mrs X say the Council’s actions and failure to provide practical and financial support has affected their health and wellbeing and caused them significant financial difficulties.

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The Ombudsman’s role and powers

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 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. 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 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

7. I considered evidence provided by Mr and Mrs X and the Council as well as relevant law, policy and guidance.
8. Mr and Mrs X and Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Friends and family carers

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. Kinship 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.

Statutory complaints procedures

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.
16. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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 here

22. Mr and Mrs X’s grandson Y came to live with them on 26 August 2022. Y’s parents, Mr C and Ms D, are separated and prior to coming to live with Mr and Mrs X, Y had at times lived with either Mr C or Ms D. The Council’s records show that both Mr C and Ms D had told the Council they were unable to cope with Y living with them and had asked for support.
23. In June 2022 Y was made subject to a Child Protection Plan under grounds of emotional abuse. Y was also deemed a Child in Need by virtue of his disabilities.
24. The Council’s records show Y would run away from his parents’ homes and go to stay with his maternal grandmother, Ms E.
25. At a pre-legal meeting in July 2022 a team manager shared that the threshold for care proceedings had been met some time ago and should be acted upon.
26. On 22 August 2022 Mr C told the Council he was unable to care for Y and wanted him to go into care. A social worker contacted the Council’s placement team but advised Mr C it was unlikely they would find a placement for Y that day and that it could take a couple of weeks. The records show the social worker asked Mr C if he could find someone to look after Y for this time. Y stayed at Mr C’s home that evening.
27. On 24 August 2022 Y ran away from Mr C and went to Ms E’s home. Y did not want to return to Mr C’s home and Ms D said she was unable to care for Y. As the Council was unable to find a placement for Y Ms E agreed he could stay with her for one night. The Council sought an urgent placement the following day and offered to arrange for a support worker to stay overnight if Y returned to Mr C’s that evening. Y refused to return to Mr C, and Ms E agreed he could stay a further night with her.
28. The Council’s records show a social worker then contacted Mr C on 26 August 2022 to explain the urgency of the situation and asked if he could think of any family member who could care for Y on an emergency basis. Mr C agreed to call Mr and Mrs X to see if they could care for Y over the weekend. Mr C subsequently told the social worker Mr and Mrs X had agreed to care for Y over the weekend and would consider caring for Y long term as the family did not want Y to go into care.
29. The social worker spoke with Mr X and then arranged for a support worker to provide overnight support Friday, Saturday and Sunday night. And for Y to receive day time support on the Saturday, Sunday and Monday.
30. The case records of the Head of Service’s decision on 26 August 2022 note Y’s parents have given verbal consent for s20 accommodation and that Mr and Mrs X had agreed to care for Y.
31. It also sets out the actions to be completed. These include:
• The Council’s search for a placement to continue;
• A duty social worker will visit and complete a viability assessment of Mr and Mrs X;
• A duty social worker to explain the plan to Y and what support is in place for him; and
• The allocated social worker to ensure Child Looked After (CLA) tasks are progressed, a CLA review is arranged, obtain written s20 consents from Mr C and Ms D and arrange an initial health assessment.
32. Social workers visited Mr and Mrs X on 26 August 2022 and again on 1 September 2022. During the visit on 1 September 2022 the social worker asked Mr and Mrs X to sign a written agreement that Y’s contact with his parents would be supervised and that Mr C would not be allowed to remove Y from their home. Mr and Mrs X also had a written agreement that the Council would provide them with £50 until finances were sorted out. The social worker said they would sort this out.
33. A case discussion between the social worker and their manager on 7 September 2022 notes Y was placed in Mr and Mrs X’s care on an emergency basis when Mr C refused to have him return to his care. The manager recommends the matter is presented to a Legal Gateway Meeting (LGM) to discuss the longer term plans for Y. They note neither parent was currently exercising their parental responsibility.
34. On the same day the social worker reminded Mr and Mrs X that any contact Y has with Mr C must be supervised. They also discussed the process of the viability assessment and that a social worker from the fostering team would be allocated to jointly complete the assessment.
35. A CLA review took place on 21 September 2022 in place of a Child Protection review. The Independent Reviewing Officer (IRO) had raised concerns about the lack of clarity around Y’s placement with Mr and Mrs X. They noted there was no s20 paperwork on file, the viability assessments had not been completed, Mr and Mrs X were not receiving any support and there was no care plan on file.
36. At the meeting the IRO recommended the social worker take the s20 paperwork out to the parents to be signed that day. The social worker then spoke to Mr C and Ms D and agreed to drop the paperwork off at Mr and Mrs X’s home where they could read and sign them.
37. A duty social worker and fostering social worker visited Mr and Mrs X on 3 October 2022 to complete the viability assessments.
38. The case records show Y’s social worker was then absent from work and the IRO again raised concerns the matter had not progressed. On 4 November 2022 the Head of Service reviewed and authorised the viability assessment. They then passed it to the fostering service and asked for payments and the full assessment to progress.
39. The Head of Service also contacted Mr and Mrs X to apologise for the absence of the social worker and advised Y had been allocated a new social worker. The Head of Service also confirmed the fostering assessment was now in progress and payments for the placement would be arranged.
40. The fostering team advised the Head of Service they were unable to authorise temporary approval of Mr and Mrs X as foster cares as police checks had not been completed. They asked the Head of Service to make payments to Mr and Mrs X as a Child in Need.
41. In December 2022 Mr and Mrs X raised concerns that they had not received any financial support and were struggling to manage. In addition to the extra cost of caring for Y, their household income had also reduced as Mrs X had had to give up work to care for Y.
42. Following an escalation in Y’s behaviour over the Christmas period Mr and Mrs X told the Council they were struggling to cope, and asked for support
43. The Council’s case notes show that on 11 January 2023 the Head of Service advised the social worker and team manger that Y was not a child in care as Mr C had not consented to s20 accommodation. They said this was a private family arrangement.
44. Records of a case discussion on 11 January 2023 note the need to clarify Y’s legal status. The notes say that as Y is living with Mr and Mrs X and his parents have refused to sign the s20 paperwork, he is there under a private arrangement. The social workers would look into financial support for private fostering arrangements and speak to Mr C regarding s20 consent.
45. The Council’s case notes show a social worker spoke with Mr C on 11 January 2023 and again on 25 January 2023 and that Mr C agreed to s20 accommodation.
46. On 5 February 2023 the IRO raised further concerns about the lack of clarity around Y’s legal status and the escalation in his challenging behaviour. They asserted the matter needed to go before a legal planning meeting as a matter of urgency.
47. The case records show that Mrs X asked the social worker about the s20 placement and the social worker told her this was a private family arrangement between her and Y’s parents. As such it did not need s20 consent. The social worker acknowledged there had been some confusion about this but said this was the current situation.
48. A new team manager then met with Mr and Mrs X and the social worker on 15 March 2023 to set out the key issues and current situation from the Council’s perspective. The notes of this meeting say the manager explained Y was not accommodated by the Council and that this was a private family arrangement between Mr C and Mr and Mrs X. The manager said they would look into what support the Council could offer in recognition of the high level of support Mr and Mrs X continued to offer to Y.
49. The records show there were some internal discussions about payments to Mr and Mrs X. But this was not discussed further with Mr and Mrs X.
50. On 29 June 2023 Mr and Mrs X made a formal complaint. They noted the Council had arranged for Y to come and stay with them on 26 August 2022 as an emergency placement as the only other alternative was for Y to be taken into care. Mr and Mrs X said the social worker had called them on 31 July 2022 and asked if they could visit to discuss Mr and Mrs X looking after Y long term. When they explained Mrs X would have to give up work they say the social worker explained it would be s20 accommodation and they would receive a payment for looking after Y so would not lose out financially.
51. Mr and Mrs X say a second social worker then told them they would receive foster payments which would be backdated. They began the fostering process and attended some courses and also received some advice regarding benefits. Mr and Mrs X complained they were then told in February 2023 that they could no longer foster Y as proper procedure had not been followed. They say the Council told them the s20 paperwork had not been signed and it was now too late to pursue this.
52. Mr and Mrs X complained the Council told them it would now be best to leave things the way they were and the social worker would work out what they should be entitled to and arrange a backdated payment. Mr and Mrs X had still not received any financial support and were struggling financially.
53. As they did not receive a response, Mr and Mrs X chased the Council on 23 August 2023 and 5 September 2023.
54. The Council responded to Mr and Mrs X’s complaint on 15 September 2023. It noted the information provided was appropriate and correct in terms of payment of a fostering allowance, if Y was a looked after child. However as Y’s father did not agree to Y being accommodated as a child in care and both parents told the Council they would continue to exercise their parental responsibility, this was a private arrangement.
55. The Council said Y had never been a looked after child in the Council’s care and apologised Mr and Mrs X had been given incorrect information. It also acknowledged that the conflicting information and advice led to a delay in Mr and Mrs X applying for appropriate benefits.
56. Although Y was not a child in care, he was a Child in Need under s17 of Children Act 1989. As such it was reasonable for the Council to make a discretionary award to cover the cost of a new bed for Y and a contribution towards the cost of replacement clothes when Y came to live with them.
57. To recognise that Mr and Mrs X made decisions based on incorrect advice between 26 August 2022 and 15 March 2023 they would be paid a connected carers allowance, the Council offered a one off lump sum payment.
58. It calculated the connected person payment for this 202 day period was £6,326.64. In addition it offered a further £247.99 clothing allowance, and the equivalent of Y’s Disability Living Award (DLA) for a two month period, in the sum of £934.80. It would also reimburse the cost of the bed Mr and Mrs X had purchased.
59. Mr and Mrs X were not satisfied with the Council’s response. They disputed Y was not a looked after child and that this was a private arrangement. They progressed their complaint through stages two and three of the statutory complaint procedure.
60. The stage two investigation identified three heads of complaint:
1. The Council did not effectively follow procedures in a timely manner to establish the legal basis on which Y was placed with Mr and Mrs X;
2. Due to the lack of clarity on the legal basis on which Y was placed with them on an ongoing basis, the Council has failed to ensure that Mr and Mrs X were supported financially as Connected Person carers from when Y was placed with them; and
3. The Council has failed to provide any support services following Y being placed with them.
61. The investigation upheld complaints 1 and 2 and partially upheld complaint 3. The investigation made a number of recommendations for service improvements and recommended the Council offer Mr and Mrs X a time and trouble payment in addition the amounts already offered. The Council offered Mr and Mrs X a time and trouble payment of £750.
62. As complaints 1 and 2 were upheld the stage three panel only reviewed complaint 3. The panel agreed the complaint should be partially upheld as Mr and Mrs X had received some support. The stage three panel recommended:
• the complaints team discuss the financial offer with Mr and Mrs X;
• Y’s social worker explain to Mr and Mrs X Y’s respite arrangements;
• The Council discuss the pros and cons of a Special Guardianship Order (SGO) with Mr and Mrs X and explain what their entitlement to support for caring for Y would look like;
• Should Mr and Mrs X decide to pursue an SGO they are given one free session of independent legal advice to assist with this decision; and
• Reimburse Mr and Mrs X for the Dudley zoo passes and expenses they had to pay for this in 2024.
63. The Council agreed to these recommendations, but Mr and Mrs X remain dissatisfied. They do not feel that as a family they have been adequately compensated for the impact of the Council’s multiple failings. Mr and Mrs X were keen to explore options such as an SGO but say they would need practical and financial assistance with this.
64. The Council’s records in August 2024 note Mr and Mrs X were struggling to care for Y and were experiencing significant financial hardship. The records say a social worker will seek Y, Mr C and Ms D’s views and form a view on the risk of Y coming into care. The team manager will also discuss with the service manager about financial support and if necessary consider bringing the matter to a Legal Gateway Meeting if Y needs to be accommodated. There is no record of any discussion with the service manager.
65. The social worker contacted Mr C and Ms D in September 2024. The records show Ms D was clear that it was not an option for Y to live with her. Mr C said Y could live with him but he was unclear whether this was what Y wanted. The social worker made a referral for a Family Group Conference but this did not proceed.
66. The Council made a legal gateway referral in October 2024, seeking legal advice in relation to Y remaining with Mr and Mrs X as kinship foster carers under s20. The referral noted Mr and Mrs X had said they could no longer manage Y. And that Mr C and Ms D wanted Y to stay with Mr and Mrs X until the transition into shared care arrangements happen. They would sign a s20 if that was an option. Based on the information presented the Panel determined it was a family arrangement and that Y had never been looked after.
67. Mr and Mrs X’s personal circumstances changed in the Autumn of 2024. Mrs X had surgery in December 2024 and requires ongoing treatment and a period of recuperation. This has meant they are no longer able to care for Y. Y returned to live with Mr C in February 2025.
68. Mr and Mrs X have not accepted the connected person payment offered, as they assert this should be paid for the full period Y was in their care. They have however accepted the payments for clothes, the cost of a bed, the equivalent of DLA and the time and trouble payment on an interim basis.

Analysis

69. Mr and Mrs X have completed the statutory complaint process and their complaints have been substantially upheld. I do not consider it necessary to reinvestigate Mr and Mrs X’s complaint, but consider our intervention is warranted regarding the remedy.
70. It is clear that the Council was directly involved in placing Y with Mr and Mrs X on 26 August 2022. The Council’s failure to follow proper process combined with poor record keeping and a shortage of staff/ staff absences meant there was a lack of clarity regarding Y’s legal status. However, it is clear this was not solely a private family arrangement.
71. Mr C and Ms D had both told the Council they were unable to care for Y and Mr C had asked the Council to find a placement. As the Council was unable to find an urgent placement it asked Mr X to try and identify a family member who could care for Y on an emergency basis.
72. Mr and Mrs X agreed to care for Y on the basis of information and false assurances from Council officers about the support they would receive, including financial support, as connected person carers. They completed assessments and attended training on this basis. Mr and Mrs X made significant life changing decisions in order to provide long term care for Y. They changed their retirement plans, used their savings and Mrs X gave up her job based on incomplete and inaccurate information from the Council.
73. The Council then made a unilateral decision some seven months later to change the placement status to a private family arrangement. The Council did not fully explain what this would mean for Mr and Mrs X going forward, or the financial implications.
74. The stage two investigation recommendations included:

All formal decision i.e. that this is now a Private Family Arrangement are given to carers in writing with a clear explanation of the reasons why this decision was made and to ask it they agree.

75. Although the Council agreed to this recommendation Mr X says he has not received any written explanation for the change to a private family arrangement and he has certainly not agreed to it.
76. The Council has offered to make connected person payments for the period 26 August 2022 to 15 March 2023. While this is to be welcomed, I do not consider this fully addresses the situation Mr and Mrs X then found themselves in.
77. But for the Council’s failings I consider it more likely than not that Y would have been in Mr and Mrs X’s care from August 2022 as a looked after child. Either under a s20 agreement, or alternatively, given Mr C and Ms D’s changing views on this, under formal care proceedings. This would have meant Mr and Mrs X would receive ongoing financial support.
78. Matters have since progressed and Mr and Mrs X are not now physically able to care for Y.
79. Based on the evidence available I consider the Council should pay Mr and Mrs X connected person payments for the entire time Y was in their care.

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Action

80. The Council has agreed to:
• apologise to Mr and Mrs X for the distress, anxiety and financial difficulties caused by the Council’s failure follow proper procedure and provide appropriate support when it placed Y in Mr and Mrs X’s care. 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 Mr and Mrs X the connected person allowance for the full period Y was in their care, that is 26 August 2022 to 8 February 2025. This payment should include interest.
• the stage two report and stage three panel made a number of recommendations for service improvements. The Council should provide evidence of how it has complied with all of these recommendations.
81. The Council should take this action within one month of the final decision and provide us with evidence it has complied with the above actions.

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Decision

82. I find fault causing injustice. The Council has agreed to take actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman