Decision : Upheld
Decision date : 27 Mar 2017
The Ombudsman's final decision:
Summary: The Council had not shown how it weighed in the balance all the necessary factors when refusing the complainant’s request for a ‘staying put’ agreement with his current carers and it delayed in making the decision. The Council has now provided a more detailed explanation and agreed a small payment to the complainant for his avoidable distress caused by its faults.
- The complaint is made by a solicitor on behalf of a young adult who I shall refer to as Mr X. Mr X complains that the Council has provided contradictory reasons as to why he cannot remain with his previous foster carers, post 18, under a ‘Staying Put Agreement’. Mr X says that the Council is unreasonably refusing to arrange such an agreement.
- The Council has investigated Mr X’s complaint at Stage 1 and Stage 2 of the statutory Children Act 1989 complaints procedure. On 20 June 2016 the Head of Service wrote to Mr X, via his solicitor. The Council did not refer to the availability of a Stage 3 Review Panel. However the Council offered Mr X a meeting on 18 July but he did not want to attend.
- The Ombudsman therefore accepted the complaint for investigation.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She 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 an injustice, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
How I considered this complaint
- I have made enquiries of the Council and sent its response to the solicitor. The solicitor has provided further comments.
- I issued a draft decision statement to the Council and to the solicitor for Mr X. I have taken into account their additional comments when reaching my final decision.
- The final statement will be sent to the Office for Standards in Education, Children Services and Skills (OFSTED) in accordance with the arrangement the Ombudsman has to share findings with this organisation.
What I found
- The Staying Put Guidance; Arrangements for Care Leavers aged 18 and above to stay on with their former foster carers 2013 states that young people aged 18 are no longer ‘looked after’ and therefore the fostering legislation relating to children placed with foster carers no longer applies.
- The accompanying Staying Put Guidance 2013 clarifies that, once the young person is 18, the council is not ‘making a placement’ but facilitating a Staying Put arrangement and enabling the young person to continue to reside with his/her former foster carers. Payments made to the carer are disregarded in calculating the carers’ entitlement to means tested benefits.
- The Staying Put framework is aimed at former foster children who require an extended period with their foster carers due to delayed maturity, vulnerability and/or to continue with their education. The Guidance 2013 advises councils to develop staying put policies which should cover a range of areas.
- Where foster children do not live at the property (and therefore the foster carers are not subjected to foster placement requirements), the Guidance 2013 says there should be a system for reviewing and approving the staying put arrangement, safeguarding and risk assessments on household members, health and safety requirements and regular supervision with opportunities to attend appropriate training.
- A council will need to ensure the arrangement meets the ‘suitable accommodation’ requirements of the Planning Transition to Adulthood Guidance. In addition the Care Leavers (England) Regulations 2010 state councils should consider the suitability of accommodation for its care leavers. Schedule 2 sets out the matters to consider in determining the suitability of accommodation which should also include the young person’s views about the accommodation.
- The benefit of a staying put arrangement, besides the fact that the young person is able to remain with his former carers, is that the young person can claim some benefits subject to certain restrictions.
- The young person’s pathway plan, which a council should complete before the child is 18, should cover the ‘living together’ agreement.
- Where there are concerns about a professional’s care of a child, the matter is referred to the Local Authority Designated Officer (LADO) for investigation. If the foster carers are deregistered, they can appeal under the Independent Review mechanism (IRM).
- In the case of Re: G the Court stated that, what was required when making welfare decisions, “is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”
The Council’s Staying Put Guidance
- The Council has provided its Guidance dated September 2016. It did not issue any Guidance when the staying put arrangements first came into force in 2013.
- The Council’s guidance recognises that fostering regulations no longer apply once the young person is 18. However certain standards will continue to apply, including a Disclosure and Barring (DBS) check every three years on all adult members and regular visitors, health and safety checks, attending required training and regular oversight and support from the supervising social worker. This will entail visits twice a year unless other arrangements are agreed.
- The Council’s Guidance states young people who have left the placement to attend University are only entitled to assistance during the vacations. If the young person wishes to stay while at University, then this becomes a private arrangement between the young person and the former foster carers.
- I will refer to Mr X’s previous foster carers, and with whom he still lives, as Mr Z and Ms Z. They have been foster carers since 1996. During this period they have fostered a number of 11+ children including un-accompanied minors from war torn countries.
- Mr X was removed from his birth mother in November 2009. He was then aged 12 years old. The Council placed him with Mr Z. A year later, in 2010, Mr X’s younger brother, who I shall refer to as Mr Y, was also placed with Mr Z. The brothers remained with Mr Z and his partner, Ms Z.
- In July 2010 concerns were raised that Mr Z and Ms Z may not be saving money or giving Mr X and Mr Y their pocket money. It is not clear how this was dealt with at the time.
- During 2013 there were further concerns which involved meetings with Mr Z and Ms Z.
- In January 2014, at Mr Z and Ms Z’s annual fostering review, previous concerns were raised about their standard of care, that they did not allow professionals to do house checks and about the home decor. Mr Z and Ms Z indicated that they intended to retire once Mr X and Mr Y became 18. In April 2014 it was noted that none of decisions made by the previous Manager had been carried out
- In December 2014 the possibility of a staying put arrangement was first mentioned. At the ‘looked after child’ (LAC) review of March 2015, it was recommended that Mr X stayed with Mr Z and Ms Z under a staying put agreement.
- In April 2015 the LADO completed the investigation into Mr Z and Ms Z’s standard of care. The LADO recommended the foster carers should be deregistered. Mr Y was removed from the placement but Mr X remained.
- In April 2015 Mr X made a complaint to the Council with the help of an advocate under the Children Act 1989 statutory complaints procedure. Mr X asked for (i) an explanation as to why his ‘staying put’ agreement had not implemented in March 2015 and (ii) why the concerns about Mr Z and Ms Z were only brought up recently. Mr X made other complaints about the Council’s delays in providing his subsistence allowance and assigning a personal advisor under the Leaving Care Regulations.
- In August 2015 the Council’s Fostering Team invited Mr Z and Ms Z to a meeting to discuss the LADO’s report.
- An independent investigator completed her report into Mr X’s complaint in March 2016. She did not uphold the complaint about the failure to implement the ‘staying put’ agreement because it had been recommended that the foster carers be deregistered. On complaint (ii) she partly upheld the complaint because the Council had delayed in taking action on its concerns about the foster carers.
- On 20 June 2016 the Head of Service for Children in Care and Placements explained the Council could not support the ‘staying put’ agreement when the foster carers had been deregistered. The Head accepted that there had been delay by the Council in collating the concerns about the foster carers.
- On 14 July 2016 the Fostering Panel agreed unanimously to recommend Mr Z and Ms Z’s be deregistered as task centred foster carers. The Agency Decision Maker approved the recommendation.
- Mr Z and Ms Z have now appealed to the IRM and the appeal will be considered in January 2017. The carers’ appeal is not a matter for this investigation although the decision of the IRM may have implications for Mr X’s complaint.
- In September 2016 Mr X’s younger brother, Mr Y, returned to Mr Z and Ms Z’s property.
The Council’s comments
- The Council recognises that Mr X has an attachment to his previous carers. However he is considered a vulnerable young person and that the issues of concern which caused the foster carers to be deregistered were extremely concerning as they breached care standards and fostering regulations. The Council also say the decision not to support the staying put arrangement was also due to historical concerns raised by other young people who had been in their care.
- The Council has accepted it delayed in dealing with its concerns about the foster carer’s standard of care.
- The Council also says the property is an unregistered House in Multiple Occupation (HMO) and the carers will not allow access to all the rooms in the house to enable the Council to carry out a health and safety check as required under its staying put protocol.
- In addition the Council says a staying put agreement is not valid if a young person is at University full time. Young people are only entitled to assistance during the University vacation periods if they wish to return to their former foster carers.
Mr X’s comments
- The solicitor says the key issue is that the Council has misunderstood the law in relation to the Staying Put Guidance. Deregistration of the foster carers does not preclude a staying put agreement. The Council has to only consider whether the staying put arrangement is consistent with the young person’s welfare. The arrangement is in effect between adults and therefore is not regulated in the same way as it would be for a person under 18 in a foster placement.
- Mr X’s solicitor states the statutory test is whether the arrangement is consistent with Mr X’s welfare. To date the Council has failed to show how it has weighed in the balance the range of factors it must consider, including Mr X’s wishes and the fact that the placement with Mr Z and Ms Z had been his ‘home’ for many years.
- The solicitors says that there is evidence that Mr X is excelling both socially and academically while living with Mr Z and Ms Z and this is evidence which the Council has failed to take into account.
- The solicitor says Mr Z and Ms Z have responded to all the allegations made against them by the Council. It is of concern that the Council is now referring to ‘historical’ allegations raised by other young people which cannot now be properly investigated.
- The solicitor says the property is not an unlicensed HMO. The rooms in the property are not let out.
- It is right that the Council ensures staying put arrangements are consistent with the young person’s welfare and that there is appropriate safeguarding of these young people who are considered vulnerable adults.
- In this case the Council raised concerns about Mr Z and Ms Z’s care, as foster carers, initially in 2010 and then throughout 2013. There has been an unacceptable delay in dealing with these concerns and the Council accepts this. But this unreasonable delay does mean that Mr X is questioning the seriousness of the Council’s concerns about his former foster carers given that it did not act on them promptly at the time.
- It is also the case that the Council’s previous concerns about Mr Z and Ms Z did not prevent the agreement being made at Mr X’s LAC review of March 2015 that he should remain with Mr Z and Ms Z under a staying put agreement in his best interests.
- What appears to have made the difference to the Council’s thinking is the LADO’s report of April 2015 recommending the foster carers be de-registered. It is not clear what triggered this LADO investigation. But it was 15 months before the LADO’s recommendation was ratified by the Fostering Panel. So again Mr X questions the ‘seriousness’ of the allegations given the Council’s delay in acting on them.
- However the question of de-registration is now a matter for the IRM. Whatever the IRM recommends in January 2017 may or may not have significance for Mr X’s complaint. To date I am unaware of the IRM recommendation
- As Mr X’s solicitor highlights, a decision about whether the staying put arrangement is consistent with Mr X’s welfare was not dependant on Mr Z and Ms Z being approved foster carers or not. However I accept that their status will be a factor that the Council should take into account among a range of other considerations. But, it is not right for the Council to rely mainly on its concerns about Mr Z and Ms Z to justify its decision not to allow a staying put arrangement when it had delayed unreasonably in acting on those concerns.
- However, welfare decisions are a balancing act between various factors and it must also include proper consideration of a young person’s stated wishes and feelings, particularly when they reach adulthood. Having led Mr X to believe in March 2015 that a staying put agreement would go ahead, the Council owed Mr X a full written explanation of its subsequent decision not to approve such an agreement.
- The Ombudsman cannot question the merits of the Council’s decisions, properly taken. But, as I was not satisfied that the Council had explained its decisions properly, and Mr X and his solicitor required this, I considered that it was reasonable for the Council to provide a more detailed account and explanation of how it considered all the necessary factors and how it weighed them in the balance.
- For example, it appeared that the Council had focused on the ‘allegations’ against the former foster carers without showing how it had taken into account other factors, for example Mr X’s wish to remain with Mr Z and Ms Z, the fact he is doing well, the fact his brother is at the same property and the fact that Mr X clearly has an attachment to his former foster carers. The Council should also consider the solicitor’s comments made on behalf of Mr X in its further explanation.
- I note that the Council says Mr X is not entitled to a staying put arrangement because he is at University full time. This is not something which had previously been mentioned to Mr X or to his solicitor. The Ombudsman cannot comment on the legality of the Council’s decision here. But it would be appropriate for the Council to explain the legal basis of this restriction to Mr X and to his solicitor in its fuller explanation.
- Further, the Council has only just produced its own Guidance in September 2016 about its staying put arrangements. That is fault. It has meant Mr X and the former foster carers were not properly informed of the Council’s protocol when a staying put agreement was first being considered in early 2015. Mr X has been at a disadvantage because he has been unaware of the matters the Council needed to consider or what was expected of his former foster carers.
- However, Mr X has remained at the property, in any event, but not under a staying put agreement. So he has not had to leave the property. The main disadvantage is that Mr Z and Ms Z did not have the financial support of a staying put arrangement which will have affected the amount of financial support it can provide to Mr X.
- The Council has provided a more detailed written explanation for its decision not to approve a staying put arrangement which covers the points made by the solicitor and which shows how the Council has weighed in the balance Mr X’s wishes and feelings and other factors. The Council has also reconsidered its decision but its views have not changed.
- However, the Council led Mr X to believe in March 2015 that a staying put arrangement would be made. It raised his expectations. It will apologise to Mr X for this and for not issuing its Guidance on its staying put arrangement until recently.
- The Council has also agreed compensation of £500 for Mr X’s avoidable distress and raised expectations.
- There has been fault by the Council in that it had not shown how it reached its welfare decision not to agree a ‘staying put’ arrangement, it had delayed in making this decision and it had raised Mr X’s expectations that it would agree to this arrangement. The Council had also delayed in producing its Guidance about ‘staying put’ arrangements. This has caused Mr X some injustice.
- The Council has accepted this and agreed a suitable remedy. I have therefore completed my investigation and I am closing the complaint.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman