Liverpool City Council (18 013 137)

Category : Children's care services > Looked after children

Decision : Upheld

Decision date : 24 Sep 2019

The Ombudsman's final decision:

Summary: the Council delayed recognising Ms B’s agreement to care for her granddaughter was not a private arrangement which delayed provision of funding. An apology, agreement to backdate the fostering allowance to 2013, additional payment to Miss B, review of the Council’s policy and training for officers is satisfactory remedy for the injustice caused.

The complaint

  1. The complainant, whom I shall refer to as Ms B, complained the Council failed to give her financial support for her granddaughter from 2010 despite the fact the Council was involved in placing the child with her and she had asked for support.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  3. If we are satisfied with a Council’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)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and Ms B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided; and
    • gave the Council and Ms B an opportunity to comment on my draft decision.
  2. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

  1. The Children Act 1989, section 17, states 'children in need' are children who:
    • need councils to provide them with services so they can achieve or maintain a reasonable standard of health or development; or
    • need councils to provide them with services to prevent them suffering significant or further harm to health or development; or
    • are disabled.
  2. Councils can provide a range of services including financial support to children it has assessed as being ‘in need’.
  3. The Children Act 1989, section 20, states councils have a duty to provide accommodation to any child in need in their area who requires it as a result of:
    • there being no person who has parental responsibility for the child;
    • his/her being lost or having been abandoned; or
    • the person who has been caring for the child being prevented (whether or not permanently, and for whatever reason) from providing the child with suitable accommodation or care.
  4. Where accommodation is provided under section 20, the arrangement is a voluntary one. A local authority may not provide accommodation under this section for any child if any person who has parental responsibility for that child and is willing and able to provide accommodation for them (or arrange for accommodation to be provided for them) objects to that arrangement. Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.
  5. The Children Act 1989, section 22, requires councils to firstly consider a placement with parents, then family and friends who are willing and able to act as foster carers before considering unrelated foster carers.
  6. If the Council makes arrangements for a child to be accommodated by someone other than its parents, it must provide financial support to maintain the child in the form of a fostering allowance as well as practical support to the 'looked after child'.

Private family fostering arrangements

  1. A private, or informal, family arrangement happens when a close relative has agreed with the parent to take on the care of the child.
  2. This private arrangement could be confirmed in court in a private law order called a child arrangements order. A child arrangement order sets out with whom the child should live, spend time or other contact arrangements and gives the holder of the order parental responsibility for the child. Under this arrangement there is no right to any financial support from the Council.
  3. However, councils can decide to pay an allowance to a carer with a child arrangement order. This is a contribution towards the child’s maintenance called a child arrangement order allowance.
  4. Statutory guidance says councils must have policies explaining how family and friends carers are made aware of the eligibility criteria for financial support and when means testing applies, how to apply for any such financial help, and how and when decisions are made about eligibility. Where financial support is offered, a written agreement should be drawn up detailing the level and duration of the support that is to be provided and the mechanism of review, to ensure all parties remain clear about the arrangements.
  5. Statutory guidance says councils should signpost to local and other sources of information and advice. They should explain circumstances in which a child may become accommodated by the council or in which care proceedings may be instigated, and how and by whom such decisions are made. Informal family and friends carers need to feel confident if they ask for support, their views will be listened to and the child’s needs will be appropriately assessed.
  6. This Council’s policy says it may pay residence order allowances to relatives or friends with whom a child is living under a residence order. It says this is discretionary and is reviewed annually.

Case law on family and friends care arrangements – the Southwark judgment

  1. A private family arrangement, sometimes called an informal family arrangement, occurs when a close relative has agreed with the parent to take on the care of their child. Under such an arrangement there is no right to any financial support from the Council but if the child is a 'child in need' a council could provide support under section 17 of the Children Act 1989. Councils do not supervise private family arrangements.
  2. The courts have looked at whether an arrangement for a child to live with a relative or friend was truly a private arrangement. The Court said where a council takes a major role in making arrangements for the child to be fostered it is likely to conclude it is acting under its duties to provide the child with accommodation. If the Council is simply facilitating a private arrangement the Court said councils must make it clear to all parties that those holding parental responsibility for the child were responsible for the financial arrangements to care for the child. (London Borough of Southwark v D [2007] EWCA 182)
  3. In the Southwark judgment Lady Justice Smith said:
    • “If an authority wishes to play some role in making a private arrangement, it must make the nature of the arrangement plain to those involved. If the authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that s/he must look to the parents or person with parental responsibility for financial support. The authority must explain that any financial assistance from public funds would be entirely a matter for the discretion of the local authority for the area in which the foster parent is living. Only on receipt of such information could the foster parent give informed consent to acceptance of the child under a private fostering agreement. If such matters are left unclear, there is a danger that the foster parent (and subsequently the court) will conclude that the local authority was acting under its statutory powers and duties and that the arrangement was not a private one at all.”

The Ombudsman’s previous reports

  1. In 2013 the Ombudsman issued a focus report about council services to family and friends carers, which highlighted cases of such carers receiving unfair treatment. A second focus report in 2018 which principally looked at complaints about special guardians also highlighted issues with councils not properly considering whether they should provide more financial support. The Ombudsman has also published numerous individual reports highlighting issues in respect of councils’ duties towards family and friends foster carers.

Chronology of the main events

  1. On 18 February 2009 the Council carried out an initial assessment following a school referral due to concerns about Ms B’s daughter’s presentation while her daughter was in her care. The Council put in place a written agreement for Ms B’s daughter not to be under the influence of alcohol or drugs while the children were in her care. The Council considered Ms B a protective factor and the Council closed the case.
  2. On 30 April 2010 the Council carried out an assessment following a police referral about domestic violence concerns. The Council’s core assessment decided Ms B would be the main carer for her granddaughter while her daughter went into alcohol/drug rehab. The Council put in place a written agreement for Ms B to have temporary care of her granddaughter and to supervise contact between the mother and child.
  3. On 26 July 2011 the Council carried out an initial assessment following a police referral after it arrested Ms B’s daughter for being drunk in charge of the children. Ms B and her daughter agreed the child should not be exposed to people under the influence of alcohol or drugs. The Council closed the case.
  4. On 14 February 2013 the Council carried out an assessment following a referral that said Ms B’s daughter had taken her child and was living at the child’s father’s address. The referral said both parents were using drugs, witnessed by the child. The assessment recorded Ms B provided most of the care to her granddaughter and remained a protective factor. The Council put in place a written agreement for Ms B’s to care for her granddaughter and older sibling full-time and for her to supervise contact with the parents.
  5. A child in need meeting took place on 4 March.
  6. A Council social worker carried out a visit on 26 March. The social worker noted although Ms B’s daughter was living with Ms B for half the week Ms B was caring for the child full-time as per the written agreement.
  7. The Council held further child in need meetings on 12 December 2013 and 24 April 2014. The Council closed the case on 2 June 2014.
  8. On 29 June 2014 the out of hours social worker visited after reports Ms B had taken an overdose and her daughter was due home from prison.
  9. On 7 July 2015 the Council received a referral which raised concerns the parents wanted the child back in their care and Ms B had no legal order to prevent it. The Council completed an assessment and recommended Ms B apply for a child arrangement order.
  10. On 31 May 2016 the Council received a referral the child had been going out with her father and there were concerns about his chaotic lifestyle. The referral raised concerns the father wanted the child to live with him permanently. The referral said because Ms B did not have a formal order in place she could not stop contact with the father. The Council decided to carry out an assessment.
  11. On 2 June Ms B told the Council she was disappointed with the support she had received from children’s services. Ms B said she had looked after her grandchild for many years without financial help. Ms B said she had previously asked about a special guardianship allowance and possible financial support but the Council had told her she was not eligible.
  12. On 20 July 2016 a Council social worker carried out a home visit. The social worker discussed Ms B gaining parental responsibility for her granddaughter. The Council advised her to make an application for a residence order which the Council would support financially. The Council said she could also seek a special guardianship order. Ms B agreed to talk to her partner about the option of a residence order. Ms B gained a child arrangement order in 2017. The Council paid for the application.
  13. On 31 January 2019 the Council completed a special guardianship order assessment and made an award to pay fostering allowances backdated to March 2017. That is the date the court granted the child arrangement order.

Analysis

  1. The Ombudsman will not normally consider a complaint about matters which occurred more than 12 months ago. In this case Ms B is alleging the Council should have awarded financial support to her from 2010 when her granddaughter went to live with her. That is more than 12 months ago. I have exercised the Ombudsman’s discretion to investigate back to 2010 in this case because I am satisfied the documentary evidence shows the status of the arrangement and the financial implications of it were not discussed with Ms B between 2010 and 2016. So, I see no reason Ms B would have known to complain.
  2. Ms B says the Council should have awarded financial support for her granddaughter from 2010 because that is when she took sole responsibility for her. Ms B says that was not a private arrangement and the Council was involved throughout. It is clear from the documentary evidence the Council has had involvement in Ms B’s granddaughter’s case since 2009. I note the Council carried out an assessment in 2010. As part of that the Council put in place a written agreement. Under that written agreement Ms B’s daughter agreed for Ms B to care for her own daughter until she had undergone further assessment. The agreement also provided for Ms B to supervise her daughter’s contact with her granddaughter. The assessment itself refers to Ms B looking after her granddaughter while her daughter goes into rehab. I do not consider that a private arrangement given the Council was involved and put in place a written agreement. However, there is nothing in that assessment to suggest either the Council considered the placement with Ms B a permanent one or that it would have taken the child into care permanently if Ms B had not agreed to care for her. Rather, it is clear the assessment was for Ms B provide temporary care until an assessment and her daughter’s completion of rehab. In those circumstances I could not say the Council was wrong not to consider awarding financial support from 2010.
  3. The Council then carried out an assessment in 2011. Again, there is nothing in that assessment to suggest the Council considered Ms B’s daughter could not take care of her child. Rather, the assessment records if it later became clear Ms B’s daughter was drinking the Council should consider her ability to care for her children. The assessment records the support Ms B gave to her daughter in looking after her children but it is clear this is in the context of Ms B’s daughter remaining a suitable parent, subject to Ms B providing her with help. There is nothing in that assessment to suggest the Council considered Ms B’s daughter an inappropriate person to parent a child or that it would take the child into care if an alternative permanent carer could not be found. So, I do not consider there was any reason for the Council to award financial support to Ms B at that point given it did not consider her the person with permanent care of the child. That was also the case in 2012 given there was no further involvement by the Council. So, I do not criticise the Council for not awarding any financial support to Ms B before 2013.
  4. The situation changed with the Council’s assessment in February 2013. At that point the Council drew up a written agreement which Ms B and her daughter signed. The Council’s social worker countersigned the agreement. That agreement said Ms B would care for her granddaughter full-time until both parents had engaged with agencies to address their lifestyle and drug misuse. The 2013 agreement said the arrangement would remain in place until the Council considered it safe for the children to return to their parents’ care. The agreement required Ms B to supervise the parents’ contact with her granddaughter. As part of that agreement Ms B agreed to tell the Council if either parent tried to remove the children from her care. The agreement made clear the Council would consider any breach of the agreement a failure to protect the children which might result in the Council carrying out child protection protocols to protect the children. There is no evidence in any of the records after 2013 to suggest Ms B’s grandchild ever returned to her mother’s care. Indeed, when that became a possibility in 2016 the Council carried out a further assessment which resulted in it supporting Ms B’s application for a child arrangements order.
  5. It is clear from the 2013 agreement the Council had concerns about the parenting ability of Ms B’s daughter. From that point onwards Ms B was considered the person with responsibility for caring for her grandchild. In looking at whether this was a private arrangement I have considered the test set out in the legal case I refer to in paragraphs 19-21. The evidence I have seen satisfies me the arrangement for Ms B to take on sole responsibility for her grandchild in 2013 came about because of the Council’s involvement. As I have said, the written agreement the Council drew up and countersigned made clear Ms B had to tell the Council about any changes and any breach could result in child protection procedures. Given the Council’s involvement and the clear implication in the agreement the Council would take action under child protection if Ms B breached the agreement I do not consider the arrangement a private arrangement at that point. Given its wording I am also satisfied it is likely if Ms B had not signed the agreement the Council would have taken her grandchild into care.
  6. There is also nothing in the communications with Ms B to suggest the Council told Ms B it considered the arrangement a private one in which she would have to seek financial support from her daughter or the father of her grandchild. Indeed, there is no evidence the Council gave Ms B any information about the status of the placement at the time or the other options available. As the legal case said, if the Council facilitates a private arrangement it must make that clear, including the financial implications. There is no evidence the Council did that in this case. Failure to recognise the placement in 2013 was not a private one and failure to explain the status and implications to Ms B is fault.
  7. I am particularly concerned the Council did not revisit that issue or discuss potential financial support for Ms B when she contacted it between 2013 and 2016 to seek financial support. It is clear from some of those communications Ms B was struggling financially. Yet at no point did the Council consider whether the arrangement was anything other than a private one. As I said earlier, I am satisfied it was not. Again, the Council is at fault for failing to consider awarding financial support to Ms B when she asked for it. Given I do not consider the caring arrangement was a private one I recommended the Council backdate the allowance it has now awarded to Ms B to the date of the 2013 written agreement which is when Ms B agreed to take on parental responsibility for her granddaughter. The Council has agreed to that recommendation.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Ms B for the faults identified in this statement;
    • backdate the fostering allowance to February 2013;
    • pay Ms B an additional £250 to reflect the time and trouble she has had to go to pursuing her complaint.
  2. Within two months of my decision the Council should:
    • Review its policy on family and friends care to take account of the findings in this complaint; and
  3. The Council has provided training to social workers about what constitutes a private arrangement. As the Council has new staff joining it will refresh that training in November/December 2019.

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Final decision

  1. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman

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