Summary: Ms X complained the Council incorrectly deducted the value of benefits she claimed from payments it made to her for caring for two children under a residency order between 2010 and 2019. We ended the investigation because Ms X’s complaint was late and there was insufficient evidence of fault to justify investigating.

The complaint

1. Ms X complained the Council incorrectly deducted the value of benefit payments she claimed from payments it made to her for caring for two children under a residency order between 2010 and 2019. Ms X said as a result she experienced a financial loss. Ms X wanted the Council to provide the back payments from the nine years.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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)

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How I considered this complaint

4. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
5. Ms 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

Residency Orders

6. Before 2014 a court could issue a Residency Order which set out who a child should live with (Children Act 1989, Section 8), these became known as Child Arrangement Orders after 2014 (Children and Families Act 2014). A council can make a payment to someone looking after a child or children under a Residency Order, this is called a Residency Order Allowance (ROA). A council has a power to pay a ROA, but it is not under a duty to do so, it is a discretionary payment. There is no statutory guidance or case law that sets out what rates should be paid. Councils should have policy that sets out when it will pay the discretionary allowance.

What happened

7. Ms X obtained a Residency Order for two children, Y and Z, in 2010 and looked after them until they became adults in the 2020s.
8. The Council and Ms X signed a financial arrangement in 2010 which said the Council would pay Ms X a ROA at the current level of the fostering allowance. It said it would deduct the value of child benefit and child tax credit, as Ms X could claim both those benefits. It said it would make the payments until the children became 18 and would review them annually. Ms X states there was a different agreement that was signed later.
9. Ms X states she complained to the Council on many occasions between 2010 and 2025 that it should not deduct the benefits from the ROA.
10. We considered the matter in 2022 and decided there was insufficient evidence of fault to investigate the matter.
11. Ms X stated she received legal advice in 2024 that made her think she had been incorrectly paid by the Council deducting the value of the benefits.
12. Ms X complained to the Council in April 2024. She said the Council should have paid the ROA without deducting benefits she claimed.
13. The Council responded and explained it introduced a policy in 2019 to ensure people receiving certain payments including ROA were not financially worse off than foster carers. It set out how its policy had been considered and implemented and said there was no fault in how it had considered the benefits Ms X received and the payments it made to her under that policy.
14. Ms X complained the Council only implemented the new policy in 2019, and so it should not have deducted the benefit payments from the ROA it paid her between 2010 and 2019.
15. The Council responded and provided a copy of the signed ROA agreement and upheld its previous decision and explanation.
16. Dissatisfied with the Council’s response, Ms X complained to us in September 2024.

My findings

17. I have not investigated Ms X’s complaint. Ms X complained about matters that happened between 2010 and 2019. Ms X complained to us about the same matter in 2022 and we decided there was insufficient evidence of fault to investigate. Ms X states she received legal advice in 2024 that made her believe she was paid incorrectly from 2010 onwards which led her to complain. However, Ms X was aware of the matter at that time and had complained to the Council at various stages about the same matter, and to the Ombudsman previously. The complaint about 2010 to 2019 is late and there was no good reason to investigate the matter now. It is likely there would not be sufficient information and records available to establish the material facts with reasonable confidence, in order to make a balanced and sound judgement.
18. In addition, even if the complaint were not late, there is insufficient evidence of fault to warrant further investigation. The Council paid Ms X a Residency Order Allowance which was a discretionary payment. The Council and Ms X signed an agreement in 2010 that stated child benefit and child tax credit would be deducted from the payments. The Council paid Ms X in line with that agreement.

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Decision

19. I ended the investigation because the complaint is late, and there is insufficient evidence of fault to warrant further investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman