Decision : Upheld
Decision date : 19 May 2016
The Ombudsman's final decision:
Summary: The Council failed to provide D and E with British passports when they became looked after in August 2010. The Council is at fault and a remedy has been agreed.
- The complainants, whom I shall call D and E, complained the Council had failed to get them British passports since they became looked after in 2010. They said this meant they could not travel abroad and they had missed out on opportunities as a result. They also said they did not have national insurance numbers so would be unable to work and needed to be supported by the Council.
- The Council considered their complaints at Stage One and Stage Two and the Ombudsman was asked to look at the outstanding complaints and consider an appropriate remedy.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
How I considered this complaint
- I considered the information D and E’s advocate sent with their complaint. I also made enquiries of the Council and considered its response. I looked at online guidance from the UK Border Agency (UKBA) and from the embassy from their country of origin and that of the USA. I also looked at the Children Act 1989. I have shared a copy of this draft decision with D and E’s advocate and the Council and will take their comments into account for my final decision.
What I found
- D and E were accommodated by the Council on 26 August 2010. The Council obtained an Interim Care Order on 22 October 2010.
- D and E are citizens of another country. The Council says it held their expired passports, along with their birth certificates, once they came into care.
- In April 2010, the Council changed its policy ‘to ensure that all...looked after children and young people placed within either foster care or residential placements have a passport when they become accommodated, or as soon as possible after placement’. To date, D and E do not have British passports.
- The Council says the need for passports for D and E was not discussed in the Care Proceedings. Nevertheless, given this was its policy, the Council should have considered whether it was appropriate to obtain passports in this case. This did not happen, which is fault. This has caused D and E understandable uncertainty about their status in the UK and the Council should pay them £200 each for this. The Stage Two investigation notes the Independent Reviewing Officer for D and E thought they had British citizenship before they were looked after. This should have been clarified further. Once getting passports was raised as an outstanding issue in October 2011, I would have expected more and consistent progress. The Council should apologise to D and E for this lack of oversight.
- The Council employed a solicitor it thought was able to progress a citizenship application for D and E on 18 October 2012. It knew from a letter of 18 October 2013 the solicitor ‘had no expertise in immigration’ and little progress was made over that year.
- Six months after the Council was informed about the solicitor’s lack of expertise, it made an application for citizenship for D in April 2014 – after the Stage Two investigation concluded. Legal advice suggested it would be easier to get a passport for D than E because D’s father was British and she should have obtained British citizenship ‘automatically had her parents been married’. E obtaining a passport was considered more difficult, as her status was different. Therefore, the Council suggested D needed a passport first before E’s could be applied for. This delay in applying for a passport for D is fault and it caused time and trouble for both D and E who wanted to know when their status could be regularised. The Council should pay them each £200 for the time and trouble this has caused.
- D has suffered further injustice because the Home Office confirmed on 28 August 2012 that D was given Indefinite Leave to Enter the UK on 12 November 2001. This would have been in the form of a stamp placed in her passport. D, at the time, had a valid passport from her country of origin. She could have obtained the appropriate visa for the country or countries she was visiting. UKBA guidance suggests she would have been able to go on holiday and use that stamp (even in a previous passport) to allow her right of return. No one in the Council appears to have suggested this at the time.
- The Stage Two investigation says because D has a passport from her country of origin, she cannot get a British passport. UKBA guidance suggests she will have to give up her country’s passport once she gets a British one but not before. The misinformation from the Council that required D to lose a payment for a holiday to the USA and to be unable to travel to Europe on a college trip is fault. This caused D a loss of opportunity. The Council should refund the cost of the holiday to the USA D cancelled (if it has not yet done so after the Stage Two investigation) and make an additional payment of £150 to reflect her loss of opportunity through not going to Europe.
- The Council said in the Stage Two investigation it was ‘Council policy for looked after children to have one holiday of a lifetime while in care’. The investigating officer noted this had not happened for D and was unlikely to happen for E. This is fault causing D and E a loss of opportunity. The Council has agreed to make a commitment to enable D to have such a holiday and for E to also have a holiday if and when she achieves British citizenship. D and E may want to take this holiday together once E’s status is resolved. This will put them back in the same position they would have been before the Council’s fault. The Council has told me that the normal price it would expect to pay is £1,700 per person.
- I have no reason to disagree with the Council’s contention - on the basis of UKBA guidance - that obtaining a British passport for D is likely to be easier. The Council should now expedite D’s passport application. I note the Council’s application in April 2014 was rejected in March 2015 (the Council says this is the subject of an ongoing complaint with the Home Office). The Council reapplied in April 2015 and expects to hear shortly. It has agreed to employ a solicitor specialised in immigration and citizenship to ensure progress is made as quickly as possible. It is continuing to ask the Home Office to respond. The Home Office is not a body in jurisdiction. I cannot say, on the balance of probabilities, that E will be able to achieve British nationality and my remedy reflects that.
D and E being unable to work
- UKBA guidance suggests unlimited right to enter gives D permanent status in the UK. The Council also says D has a national insurance number. I can see no reason why D cannot work and/or claim benefits.
- E is working towards going to University. A national insurance number has been requested by the Council. Although E is unable to work because of her status, there is no injustice to her. E is still resident with her foster carer and receives support from the Council.
- For the Council to pay D £550 and E £400 for the fault identified in this Statement. In addition, the Council should refund D for the holiday to the USA she cancelled and enable D and E to have a ‘holiday of a lifetime’ (costing approximately £1,700 per person); for E this will be when her status is settled.
- The Council should consider amending its procedures to ensure the need for passports is considered once children become accommodated – whether they are born in the UK or not - and that progress is tracked through looked after children review meetings until a successful conclusion is reached.
- The Council should expedite obtaining a passport for D at the earliest possible opportunity in order to seek citizenship for E. The Council has agreed to engage a specialist immigration solicitor to ensure this is completed promptly.
- Fault leading to injustice and a remedy has been agreed.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman