Summary: Mrs X complained about the way the Council dealt with payments for the care of her granddaughter, Y. The Council was at fault for failing to recognise its duty to accommodate Y and make payments to Mr and Mrs X. This caused Mr and Mrs X distress and frustration. The Council has agreed to apologise, backdate payments, make a payment to recognise the injustice caused and make service improvements.

The complaint

1. Mrs X complains about the way the Council dealt with payments for the care of her granddaughter, Y. She says the Council wrongly said the care was a private family arrangement, which denied Mrs X and her husband, Mr X, formal financial support.
2. Mrs X says this has caused her financial hardship, as she has cared for her granddaughter with limited financial support and had to alter her house to enable Y to stay with her.

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The Ombudsman’s role and powers

3. 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(1), as amended)
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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the 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

Legislation and guidance

Child Protection Conference arrangements

8. If, following a referral and an assessment by a social worker, a council decides a child is likely to suffer significant harm, the council convenes a Child Protection Conference.
9. The Child Protection Conference decides what action is needed to safeguard the child. This may include a recommendation that the child should be supported by a Child Protection Plan.
10. After the Initial Child Protection Conference, there will be one or more Review Child Protection Conferences to consider progress on action taken to safeguard the child and whether the Child Protection Plan should be maintained, amended, or discontinued.

General duties and Southwark judgement

11. 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 cannot provide suitable accommodation or care.

12. 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.
13. 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.
14. 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.
15. 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.
16. 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.

Fostering Allowance

17. Children who are looked after by a council may be placed in foster care. Carers are paid a fostering allowance when looking after children and the amount they receive will depend on the number of children placed with them, the age of the child(ren) and where they live. 
18. The National Minimum Standards (‘the standards’) 2011, are a set of standards that are underpinned by regulations governing fostering. One of the standards is that the criteria for calculating fees and allowances should be applied equally to all foster carers, whether the foster carer is related to the child or unrelated, or the placement is short or long term. (Fostering Standard 28.7)

Interim care orders

19. At the start of care proceedings, the council asks the family court to make a temporary court order, called an ‘interim care order’.
20. If the court agrees, the council can take the child into care on a temporary basis. This can be for up to 8 weeks at first.

Public Law Outline

21. The Public Law Outline (PLO) process takes place when a council is concerned about a child’s wellbeing. Unless positive steps are taken to address and alleviate those concerns, the council may consider making an application to the Court. The PLO process is the last opportunity for parents before care proceedings are issued. 

Balance of probabilities

22. 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.

What happened?

23. Y is a child that was living with her mother. Following an incident in July 2023, Y went to live with her grandparents, Mr and Mrs X. Council records from this time noted that Mr X collected Y after the incident and took her back to their home. These records do not record any specific discussions or decisions made about the care of Y at this time.
24. Following this incident, in August, Y became subject to a child protection plan under the category of neglect due to concerns about her mother. She continued to live with Mr and Mrs X instead of her mother.
25. Between July 2023 and May 2024, Council records noted several concerns about Y’s mother’s behaviour.
26. A child protection review conference was held on 20 November 2023. The child protection plan noted that Y should continue living with Mr and Mrs X. During this meeting, Mr X said he would like to seek legal advice with the support of the Council, as he needed to understand what the Council’s plan was for Y.
27. Shortly after this, Y’s mother told the Council she wanted Y back in her care within six months. The Council noted it was concerned about this, and so it started the PLO process.
28. The Council completed a parenting assessment with Y’s mother in March 2024. This was a negative parenting assessment, meaning the Council did not support Y moving back to her mother’s care.
29. In April, the Council asked Y’s mother to agree to a section 20 for Y. Y’s mother disagreed with this and said she wanted Y to return to live with her.
30. Following this, the Council applied to the court for an interim care order, which the court granted on 2 May. Council records show that Mr and Mrs X were also approved as kinship carers for Y.
31. I have seen an undated complaint from Mrs X to the Council. She said Y came into her care in July 2023. The next day, the Council called Mr X to a meeting with the police, about Y’s safety. She noted Y’s mother had bail conditions preventing Y from going home, so Mr X agreed to care for her, even though her mother wanted her back. She complained that despite this, the Council was not willing to backdate Y’s expenses to the date she moved in with them.
32. On 5 November, the Council replied to Mrs X’s complaint. It explained that although Y was now a child in care, she originally went to live with them as a family arrangement in July 2023.
33. The Council noted that when a child stays with family or friends, it is the decision of a senior manager to offer the carer a friends and family payment. The Council said it agreed for payments to Mrs X, but these payments usually stop when the carer starts to claim child benefit or universal credit.
34. The Council noted it made a payment to Mrs X on 21 August 2023. This continued weekly until the last payment on 6 May 2024 when Mrs X was then entitled to fostering allowance because Y had become a child in care.
35. The Council said it did not agree for the fostering allowance to be backdated to July 2023. Instead, it would backpay to 7 March 2024, because this was the date that it completed a negative parenting assessment, which meant that Y could not return to her mother’s care.

Response to my enquiries

36. I asked the Council to explain what powers or agreement allowed Y to stay with Mr and Mrs X after the incident in July 2923. I also asked it to show any records of discussions about this. The Council send me a copy of Y’s case notes from this time, but there was nothing in them showing any discussions or decisions any agreements to care for Y.

Findings

37. The Council says that Y went to live with Mr and Mrs X in July 2023 as part of a private agreement between Y’s mother and Mr and Mrs X. However, Mrs X denies this. She says she had no relationship with Y’s mother and that it was the Council that placed Y with them. Because of this, she thinks the Council should have paid them from July 2023, not from March 2024.
38. Our role is to consider the evidence, and if there is sufficient evidence, decide who is right.
39. I note there was evidence from July 2023 that the Council was concerned about Y’s mother’s ability to care for Y. In August 2023, Y became subject to a child protection plan under the category neglect due to her mother’s actions. The child protection plan noted that Y should remain living with Mr and Mrs X. The Council also recorded several concerns about Y’s mothers conduct and the impact of this on Y.
40. When Y’s mother said she wanted Y to return home in November 2023, the Council started the PLO process. In April 2024, when Y’s mother refused to allow Y to become subject to section 20, the Council quickly went to court to ask for an interim court order, which the court granted.
41. The Council’s complaint response to Mrs X in November 2023 said it considered Y going to live with Mr and Mrs X in July 2023 to be a private family agreement. I do not agree with this for the following reasons:

• The Council was involved in Y’s care. Y was subject to a child protection plan and so the Council had oversight of her care, specifying in the child protection plan that she must continue to live with Mr and Mrs X.
• Each time Y’s mother told the Council she wanted Y to return to her care, the Council either sought legal advice or went to court to ask for an interim care order, which was granted. This meant the Council had significant concerns about Y’s mother’s ability to care for Y.
• The Council did not send any evidence related to any discussions it had about a private agreement between Mr and Mrs X and Y’s mother. There is no evidence the Council clearly explained to Mr and Mrs X that by agreeing to a private agreement, they would not get any financial support from the Council, or that Y’s mother should continue to be financially responsible.
• Only on receipt of this information could Mr and Mrs X make an informed decision to care for Y under a private agreement, where the Council was involved in the arrangements. This is especially relevant as due to the Council’s involvement with Y, as discussed in the Southwark case, it must make the nature of the arrangement plain to the proposed carer.

42. Having considered the evidence, on the balance of probabilities, I have decided that this was not a private arrangement. The duty to accommodate Y, arose in July 2023, when her mother could no longer provide her with suitable accommodation or care.
43. The Council could not provide evidence that it made these arrangements clear to Mr and Mrs X and so it could not sidestep its duty to accommodate Y. The Council should have paid and supported Mr and Mrs X and Y as if she were a looked after child from July 2023. The Council’s failure to do this is a significant fault which caused Mr and Mrs X distress and frustration.

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Action

44. Within four weeks of my final decision, the Council will:

• apologise to Mr and Mrs X for the failings we have identified;
• pay Mr and Mrs X as if they had been family and friends foster carers to Y from 31 July 2023 to 7 March 2024 when the Council backdated this payment to. The allowance for this time period was £176 per week and so the Council will make one payment of £5544 which equates to 31.5 weeks of payments;
• make a payment of £350 to Mr and Mrs X for the distress and frustration caused by failing to make these payments sooner and failing to recognise its duty to accommodate Y; and
• remind all relevant officers that if it is involved in the arrangements for a child to be cared for by a private family arrangement, that it ensures all parties are aware of the nature of the arrangement and where financial support may come from. It should also ensure proper records are made of this explanation and discussions, so it is not in dispute. This will allow the carer to make an informed decision about whether to accept a child on a private arrangement.

45. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman