Summary: the Council has agreed to fund Mrs G’s grandson B’s nursery fees until his second birthday. The Council will adopt a policy for the provision of ongoing support to carers who have Child Arrangements Orders and assess B’s eligibility for Child Arrangement Order Allowance.

The complaint

1. Mrs G complains about support from the Council to care for her grandson, B. In particular, Mrs G complains the Council stopped paying B’s nursery fees.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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)
4. 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

5. I have considered:
• information provided by Mrs G;
• information provided by the Council.
6. I invited Mrs G and the Council to comment on my draft decision.

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What I found

7. Mrs G’s grandson, B, was born in September 2019. The Council was concerned that B’s mother could not care for him, so it made B the subject of a child protection plan.
8. Shortly after his birth, Mrs G agreed to care for B. The Council says it offered Mrs G the choice of a becoming a foster carer but she chose a private family arrangement instead.
9. The Council produced a family plan which envisaged B’s mother would help with his care. However, the Council says she was ‘unable to evidence the necessary changes’ to help care for B.
10. The Council agreed to pay B’s nursery fees in February 2020, but says it only intended to pay for three months.
11. The Council funded Mrs G’s application for a Child Arrangements Order. The Court granted the Order in July 2020.

Mrs G’s complaint

12. B was turned away from the nursery in May 2020 because the Council stopped paying the fees. Mrs G complained to the Council. She said she needed help with childcare.
13. The Council apologised for not making it clear that it only intended to pay B’s nursery fees for three months. As a gesture of goodwill, the Council said it would pay B’s nursery fees until the end of March 2021.
14. However, the Council told Mrs G that financial support was discretionary and there was no legal basis for Councils to provide ongoing support to carers who obtain Child Arrangement Orders.
15. Dissatisfied with the Council’s response, Mrs G complained to the Ombudsman. Mrs G wants the Council to pay B’s nursery fees until he is eligible for support under the Government’s Free Early Education Entitlement.
16. Following my enquiries, the Council agreed to pay B’s nursery fees until his second birthday in September 2021.

Consideration

September 2019 – July 2020

17. When B came to live with Mrs G, the Council wrote to explain the options. This is good practice. Mrs G chose a ‘family arrangement’ rather than B becoming a looked after child. The letter said temporary financial support would be available, paid directly to Mrs G’s bank account.
18. The Council agreed to pay B’s nursery fees. I understand he attended nursery three days a week and the Council paid the nursery directly.
19. There were problems because the Council did not tell Mrs G how long it intended to pay B’s nursery fees and stopped paying without telling her. This led to B being turned away from the nursery. The Council has apologised and agreed to pay the fees until B’s second birthday.
20. The Council says the agreement to pay B’s nursery fees is a ‘gesture of goodwill’ as it has no legal basis to provide ongoing financial support. This is wrong. The Council should only provide support based on an assessment of need. Councils can provide support as long as it is needed. Different rules apply once Mrs G obtained a Child Arrangements Order (see below).

July 2020 onwards

21. In July 2020, the Court granted Mrs G a Child Arrangements Order for B.
22. In response to Mrs G’s complaint, the Council said there is no legal basis to provide ongoing support to carers who have Child Arrangements Orders. This is wrong. The Children Act 1989 gives the Council the power to provide support. The Council’s powers are set out below.

Child Arrangements Order Support

23. A Child Arrangements Order is a court order that decides where a child lives. Where the child lives with a person who is not a parent, the Order gives that person parental responsibility.
24. Where the child does not live with a parent, councils may make contributions towards the cost of the accommodation and maintenance of the child. Regular payments are called Child Arrangements Order Allowance. (Children Act 1989, Schedule 1, Paragraph 15)
25. Payments are discretionary. This means the Council must decide – rationally – whether to make payments. Decisions must promote the welfare of the child. The Government has not issued any guidance to Councils on factors they must take into account.
26. Councils should have a policy explaining how they will decide when to make payments and what the payments will be. Councils should carry out an assessment to determine whether financial support is necessary.
27. Councils are most likely to provide support where a Child Arrangements Order relieves the Council of obligations to provide accommodation and maintenance for a child, for example if the child would have been looked after if the Order had not been made.
28. I checked whether the Council has a policy for supporting Child Arrangement Orders, but it does not.
29. On the evidence available, I do not consider the Council has properly considered Mrs G and B’s eligibility for Child Arrangement Order support. This is fault.

Agreed action

30. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
31. We may also recommend a payment for avoidable distress or frustration that is the result of fault by the Council. A remedy payment for distress is often a modest amount.
32. The Council has agreed to pay for B’s nursery fees until his second birthday and has apologised for its faults which led to the confusion about the support it was prepared to offer.
33. I recommended the Council pay Mrs G £150 for the embarrassment and inconvenience caused when the Council stopped paying B’s nursery fees, and her time and trouble pursuing her complaint. I recommended the Council make the payment within one month of my final decision.
34. The Council has not agreed any support beyond B’s second birthday and says there is no legal basis for it to provide ongoing support. This is incorrect. The Council may provide support, although any support would be based on an assessment of B’s needs and subject to a means test.
35. I recommended the Council:
• consider adopting a policy for Child Arrangement Order support, including regular financial support; and
• assess Mrs G and B’s needs for ongoing support.
36. I recommended the Council consider whether B is eligible for support as a result of the Child Arrangements Order before his second birthday when the current support is due to end. The Council should confirm within one month of my final decision whether it intends to adopt a Child Arrangements Order support policy and set out the timetable for action.
37. The Council accepted my recommendations.

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Final decision

38. I have completed my investigation as the Council accepts my recommendations.

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Investigator's decision on behalf of the Ombudsman