London Borough of Brent (20 010 976)

Category : Children's care services > Looked after children

Decision : Upheld

Decision date : 02 Sep 2021

The Ombudsman's final decision:

Summary: the payment of £2000 by the London Borough of Brent to the complainant to recognise the injustice caused by its failure to provide her with adequate leaving care support was satisfactory and no further payment is justified. There is no fault in relation to the other parts of the complaint about the Council’s actions and the support it provided later on.

The complaint

  1. The complainant, whom I shall refer to as Ms B, complains that the London Borough of Brent failed to provide her with proper care and support as a child and as a care leaver from 2007. Specifically she complains the Council:
      1. failed to accommodate her under section 20 of the Children Act 1989 in 2007 instead providing her with semi-independent accommodation under section 17 of the Children Act 1989;
      2. then failed to provider her with care leavers support she would have been entitled to had she been properly accommodated under section 20;
      3. wrongly evicted her from the accommodation it was providing to her following a decision from the home office to reject her application for asylum in 2010;
      4. did not provide all the support to which she was entitled following a judicial review decision in 2015 that the Council should provide her with leaving care support from that time; and
      5. its offer of £2000 to recognise the impact of faults upheld under the children’s statutory complaints procedure is insufficient.
  2. Ms B says that she has suffered significant injustice as a result of these failings including her arrest and detainment by the UK Border Force, years of being homeless and poor physical and mental health.

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The Ombudsman’s role and powers

  1. 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)
  2. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
  3. 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) Whilst the events referred to in this complaint date back several years the Council considered Ms B’s complaint about them recently, completing its consideration at stage 3 of the statutory complaints procedure in December 2020. As this is the case I have considered the events that were the focus of that complaint to the Council even though they cover events that took place considerably more than 12 months ago.
  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

  1. I discussed the complaint with Ms B and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint. The information I considered included:
    • the investigation report at stage 2 of the statutory complaints procedure, the adjudication of this and of the notes of the review panel and adjudication at stage 3 of this process;
    • the chronology completed as part of the complaint investigation by the Council;
    • a copy of the Human Rights Assessment undertaken in October 2010; and
    • copies of Pathway Plans completed in 2009 and 2010.
  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.
  3. Ms B and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

What should have happened

  1. Under section 17 of the Children Act 1989 a child in in need if they are unlikely to achieve or maintain or have the opportunity to achieve or maintain a reasonable state of health or development without the provision of services, is likely to be further impaired without the provision of such services or they have a disability.
  2. Under section 20 of the Children Act 1989 a council has a duty to accommodate a child if no-one has parental responsibility for the child/young person, the child is lost or abandoned or the person caring for the child is unable to continue to provide care and accommodation. Accommodation is usually provided in the form of placement with, for example, family and friends, a foster placement or a residential placement including supported lodgings or hostels.
  3. Where a child is accommodated under section 20, they become a looked after child and the Council has a number of responsibilities for looked after children in its care and when they leave care.
  4. When a child is looked after the Council must have a care plan that includes how the child’s needs will be met in relation to health, education, emotional and behavioural development, social relationships and self care skills.
  5. At the time Ms B was a care leaver in 2008, councils were required under the Children (Leaving Care) Act 2000 to assess and meet the care and support needs of eligible and relevant children and to assist former relevant children particularly with education, employment and training. A former relevant child is a child who before reaching the age of 18 met certain criteria including a period of time being looked after and who then leave care. Such young people were entitled to support including a pathway plan to be in place until; they were at least 21 which addressed education, training and support and which was to be reviewed periodically. They were also to be provided with a personal advisor who drew up the pathway plan and ensuring it was implemented and keeping in touch with them to ensure they received the advice and support they were entitled to. The legislation was updated in 2008 to include requiring councils to provide a £2000 bursary to those in higher education and to provide a personal advisor up to the age of 25 if the young person remained in education. Further changes to the law regarding care leavers have also been made since then.
  6. If a young person receives a decision to remove their leaving care support they may complain under the Council’s complaints procedure or could judicially review the Council.
  7. Failed asylum seekers have “no recourse to public funds” but someone in this position may be eligible for support and accommodation from a council in certain circumstances including if they are a young person who has been looked after under the Children Act 1989.
  8. Councils do not provide assistance to certain groups of people with no recourse to public funds including asylum seekers who have been refused and who have failed to comply with removal directions. In these circumstances at the time relevant to this complaint councils should have carried out a Human Rights Assessment before deciding not to provide services. Guidance issued by the Home Office on section 54 of the Nationality, Immigration and Asylum Act 2002 confirms that former unaccompanied Asylum seeker children who are refused asylum on a claim made after they are 18 will cease to be eligible for accommodation or cash support.

Background

  1. The Council confirms that Ms B came to the UK in 2002 with her mother and that when her mother disappeared in 2004 Ms B went to live with her aunt. It says that Ms B left her aunt's care in 2007 following an argument and was then looked after by a family friend. That family friend contacted the Council for help in late 2007 as she was going away and did not want Ms B to become homeless. Ms B was 17 years old.
  2. With regard to her immigration status the Council says that Ms B claimed asylum in 2002 as a dependent of her mother and that this application was refused in 2004. It says Ms B made a further application in 2007 and this was refused in October 2007. Ms B appealed against that refusal but that appeal was also refused.

What happened

Events up to Ms B’s 18th birthday

  1. Following an assessment the Council agreed to provide Ms B with accommodation in December 2007. This accommodation was semi-independent with 2 hours a week support form a key worker. The chronology notes this accommodation was provided under section 17 of the Children Act 1989.
  2. In early 2008 Ms B showed the social worker a further letter from the Home Office which said her asylum appeal was rejected, later confirming that her appeal rights were exhausted. The social worker told Ms B that children’s services would continue to support Ms B until she was 18. Ms B told the social worker that her solicitor had applied to the National Asylum Support Service on her behalf though this later proved not to be the case.
  3. In June 2008 (about a month before Ms B’s 18th birthday) the social worker contacted the National Asylum Support Service (NASS) who advised that there was no application related to Ms B but that she may still be eligible for support from them. The social worker then contacted Ms B’s solicitor who told her that a new application had not been made as Ms B had failed to keep an appointment with them three months previously. The social worker advised Ms B to contact her solicitor promptly. Ms B then told the social worker that her solicitor had advised her to wait until her 18th birthday and that they would then submit a fresh claim to the Home Office on her behalf.

Events following Ms B’s 18th birthday until the Council ended her accommodation in late 2010

  1. In early January 2009 the chronology notes that the Council was still providing services to Ms B “as a FR”. I assume this means as a former relevant child. It appears the Council’s children’s services team was still providing accommodation but no key worker support. Ms B was not eligible to apply for housing by the Council’s housing department due to her immigration status. She was attending a sixth form college taking a BTech course. The Council appear to have been paying Ms B’s transport costs to college. In April the chronology notes that a home visit was to be arranged to complete a pathway plan with Ms B.
  2. A Pathway Plan review took place in May 2009. This confirms that at that time Ms B was living independently, attending sixth form college and still studying for a BTech qualification. It stated that she did not qualify for an Education Maintenance Allowance (presumably due to her immigration status) but that her college was making hardship payments to her to cover her food and housing. The Council was paying her travel costs, her rent and her utility bills and a contribution to her books and equipment. She was noted to be struggling financially and wanted to work though it was unclear whether she was able to do this due to her immigration status. She was receiving a weekly subsistence allowance from an external provider connected to the housing provider. The review also notes that Ms B’s solicitor had contacted the Council for details of the support the Council was providing to Ms B and this was in connection with her asylum applications/appeals.
  3. In June the social worker wrote to Ms B to tell her the Council intended ending the care leavers service involvement and that she would be required to leave the accommodation it was funding for Ms B at the end of June. It does not appear that she was in fact required to leave the accommodation.
  4. A further review of the pathway plan took place in February 2010. This confirmed a further legal application regarding Ms B’s legal status had been submitted in January 2010. Ms B was still attending college and was due to finish college in 2011 after which she wanted to go to university. The social worker was noted as still providing assistance to Ms B’s lawyers with her asylum application.
  5. In August 2010 the chronology quotes from the case records stating that although Ms A had exhausted the asylum appeals process and was not entitled to public funds she was entitled to leaving care services until she was 21. She started a college course in September for which the Council continued to pay her travel costs.
  6. During 2010 the council’s leaving care service continued to pay for Ms B’s travel and paid clothing allowances.
  7. A further pathway plan review took place in September 2010. This plan notes that Ms B was aware that if the Home Office refused her claim for asylum the Council would cease to provide her with the current support. The Council continued to pay Ms B’s travel expenses and made clothing allowances and made a further agreement to continue to provide financial support and support with her asylum claim. She continued to attend college.
  8. In October 2010 Ms B’s asylum claim was refused by the Home Office again. A further appointment was made by the social worker for Ms B with her solicitor. Ms B’s college attendance was reported by the college to be low.
  9. The Council says that Ms B had a personal advisor from mid-Nov 2010 to 19 January 2011. Despite my request for the reason she did not have a personal advisor before this the Council provided no comment or explanation for this.
  10. The chronology notes a file record from the Council’s lawyers in October 2010 which states “Currently as a failed asylum seeker…we are prohibited from assisting her unless she is able to demonstrate that it breach her human rights. She has not done so and therefore we would be entitled to withdraw support”.
  11. The Council has provided a copy of a Human Rights Assessment (HRA) completed by a social worker dated 28 October 2010. It notes that Ms B did not attend an arranged interview to complete this assessment on 25 October. It appears that the social worker therefore completed the assessment based on the information it held on its files. The assessment does not appear to have been completed as the boxes on the proforma entitled “Recommendations” and “Manager’s Decisions” are not completed. Nor has a manager signed off the assessment. In its comments on this the Council says it seems a final version was not saved and as it was undertaken 11 years ago there is no-one available who may be able to advise on what happened about this. The Council has sent a copy of a case stating that Ms B did not attend the interview for the Assessment in October and that she had contacted Ms B’s solicitor to arrange an appointment for Ms B to see her solicitor in mid-October but the solicitor told the social worker they had closed Ms B’s case as she had not responded to letters or attended appointments. However, the social worker noted that the solicitor had agreed to arrange a further appointment for Ms B to see her solicitor and the social worker noted that she had spoken to Ms B on the day of that appointment and that Ms B had confirmed she was on her way to the appointment t the time they spoke.
  12. In November 2010 the Council wrote to Ms B to tell her it would be ending its support to her by late November and that she would need to leave the accommodation it was providing to her.
  13. The Council has provided a copy of an extract of the social work case notes which stated in early December 2010 that Ms B had attended an appointment at the Council when she had refused to leave her accommodation. Ms B told the Council that she had a further asylum application pending and so her solicitor had advised her not to leave the property and also that she had nowhere to go. She confirmed she had seen a copy of the HRA assessment completed in her absence in October and would consider an offer to complete this and let her social worker know about her decision.
  14. Ms B was evicted from the accommodation in late December.
  15. Ms B was arrested in January 2011 and placed in a border agency detention centre with the intention to deport her.

Events from 2015

  1. Ms B had no further contact with the Council until 2015 when she contacted the social care team to request accommodation and financial support. Ms A was 25 years old by this time. She told the Council that between 2011 and 2015 she was provided with support by the Home Office which was ending and so she was about to become homeless. She said she was granted leave to remain in the UK by the Home Office in late 2014 until 2017. In 2015 she was in the first year of a three year university course (due to end in 2017). The Council initially refused to help her but Ms B challenged this by initiating a judicial review of the Council at which point the Council accepted that Ms B qualified as a former relevant child and the Council went on to complete a pathway plan review in June 2015. At that time she was living in emergency accommodation provided by the university. The Council did then pay for temporary accommodation for Ms B.
  2. Ms B says she was sectioned under the mental health act due to depression for around three months in late 2015.
  3. A pathway plan review in April 2016 confirmed that the Council was providing leaving care services to Ms B that included paying for her temporary B & B accommodation. Her immigration status meant she was still unable to apply for social housing. At this time the Council was paying her around £60 per week living expenses and paying most of her travel expenses to university.
  4. In 2017 Ms B was struggling with mental health problems, had been unable to complete her university course and was not well enough to work. The Council agreed to fund her further legal application for an extension of her right to remain in the UK. The children’s services team decided to refer Ms B to its adult social care team for help. Adult social care decided she did not qualify for support from them. Children’s social care continued to pay for her accommodation and weekly living costs.
  5. In 2018 the Council continued to pay for Ms B’s accommodation and living expenses and paid her university fees. By that time Ms B had been diagnosed with a personality disorder and was receiving support from the local mental health team.
  6. In July 2018 the Council decided that as Ms B was 28 years old and the decision on her leave to remain was still outstanding, it would end its support for Ms A in August and require her to leave the accommodation it was paying for in September. Ms B issued a judicial review application to challenge this decision with the result that the Council was required, under the Children Act 1989 duties to former looked after children, to continue to support Ms B until she completed her university studies. The Council therefore agreed to provide support (accommodation and living expenses) until June 2019 when she would complete her course.
  7. In April 2019 Ms B was granted further leave to remain until 2022 and allowed to work and access NHS care but had no right to access public funds including housing. The children’s services department closed its involvement at the end of June and the adult social care team agreed to assess Ms B.
  8. Ms B submitted a further legal challenge to this decision and applied to the Home Office for a change of conditions to enable her to access public funds due to hardship. The Council consequently continued to provide and pay for her accommodation and living expenses.
  9. Ms B moved into her own accommodation in early 2021.
  10. The Council estimates that it provided support to Ms A between 2015 and 2021 that amounted to nearly £100,000. It has provided a breakdown of payments over the period since 2015 as:
    • Around £13,000 in subsistence payments between 2015 and 2019;
    • Provision of accommodation from 2015 to 2021 at a cost of around £75,000;
    • Around £2700 to cover the cost of her application to renew her immigration status;
    • Payments for clothing, access to NHS treatment etc to the value of £1400;
    • Around £2700 tuition fees;
    • £2000 setting up home allowance when she moved into her property in early 2021;
    • Assistance with travel costs amounting to £1400.
  11. In addition it has provided non-monetary support in the form of a personal advisor from 2015 to 2021, assistance with mental health support and advocacy to help her with her complaint. I understand she has had a pathway plan and regular review of that from 2015 to 2021.

Ms A’s complaint to the Council

  1. Ms B submitted a complaint to the Council in June 2019. Her complaint was considered under the statutory children’s complaints procedure at all three stages.
  2. A stage 1 response was provided in July and the Council agreed to proceed to stage 2 of the complaints procedure in August. The stage 2 report was completed in early January and an adjudication letter sent in February 2020. Ms A then requested a stage 3 review panel and this was delayed as a result of the Covid 2020 lockdown period as Ms A wanted to wait for a face to face panel rather thatn a virtual one.
  3. Ms B’s complaint was summarised at stage 2 as:
    • Ms A should have been identified as a looked after children under section 20 of the Children Act 1989 when it agreed to provide her with accommodation in 2007;
    • the Council failed to meet its duties to her under section 20 before she was 18 and after when she was a former looked after child;
    • the Council failed to receive proper advice, living allowances and education allowances when she was looked after and as a former looked after child;
    • the Council failed to investigate its failure to support her when or after it started providing support in 2015;
    • the council failed to fulfil its duties under the Children (Leaving Care) Act 2000 to support and pay for her full education except between 2015 and 2016;
    • the Council’s failure to liaise properly with the Home Office about her immigration status led to her incarceration at a Border Agency Detention Centre and her subsequent mental health problems; and
    • the Council failed to work effectively with the Home Office regarding her immigration status.
  4. The stage 2 investigation recommended that Ms B’s complaint about the failure to properly consider her a section 20 child was not upheld as the Council provided her with services that she would have received had she been a section 20 child in any event. The investigator did uphold the complaint about leaving care support stating that whilst Ms B was seen on a regular basis there was no evidence that it provided adequate leaving care guidance or support evidenced by the fact that she was not provided with a pathway plan until well after she was 18 though the investigator considered that the support provided once in place was appropriate. The investigator did not uphold the remaining complaints, making a decision of no finding on one of them. The independent person and the adjudicating officer agreed with her findings.
  5. At stage 3 the review panel in December 2020, the panel recommended that Ms B’s complaint about the failure to identify Ms B as a looked after child under section 20 should be upheld and that the complaint about the failure to provide proper advice, living allowances and education allowances when she was looked after and as a former looked after child should also be upheld. The notes state “Ms B did not as a matter of course receive social work support, personal advice and allowances commensurate with Section 20 and subsequent leaving care duties. It is acknowledged that under Section 17, Ms B was offered practical support and efforts were made by the Local Authority to align the support to that of a care leaver (former relevant child). However, some of the provision, for example pathway planning, were met with delays and the level of personal assessment and advice was considered by the panel to have been less than would be expected for a young person for whom the Council had acknowledged parental responsibility under Section 20”. The panel recommended that the Council should apologise to Ms B and “consider an amount of compensation”. The panel also recommended that the Council should review its use of section 17 and section 20 if it had not already done so. The stage 3 adjudication accepted the recommendations, confirmed that since 2007 further clarification about sections 17 and section 20 had been issued by the court and accepted that Ms A should have been accommodated under section 20. The adjudicator apologised and awarded a payment of £2000 to recognise the inadequate support and planning between 2007 and 2009.

Was the Council at fault and did this cause injustice?

  1. I consider the Council’s consideration of the complaint under the statutory procedure was thorough and so I have not reinvestigated the matters considered under that procedure.
  2. I consequently accept and agree with the findings of the review panel’s decision that Ms B should have been accommodated under section 20 of the Children Act 1989 and that, although Ms B received some support under section 17 of the Children Act between 2007 when she was first provided with accommodation until around April 2009 when it drew up the pathway plan, she did not receive the degree and type of structured support she would have done under section 20 and as a care leaver had a pathway plan been drawn up for when she was 18 in 2008.
  3. Ms B considers that she should be awarded around £85000 to recognise the impact of the Council's failures on her. It offered her £2000 to recognise the inadequate support and care planning between 2007 and 2009. I have carefully considered this offer. I take into account that the Council continued to arrange and pay for accommodation for Ms B from her 18th birthday in 2008 until it asked her to leave the accommodation in 2010 and that it provided other financial support in the form of travel payments, clothing allowances and payments to support her education such as to buy books and equipment. I also note that the chronology refers to numerous contacts between social work staff and Ms B’s solicitors about her immigration status during that period. Ms B did not have a personal advisor for much of the period between 2008 and 2010 however and a pathway plan was not put together until some time after she became 18. On balance therefore, having considered the support provided and the lack of proper structure with elements of this, I consider the Council’s offer of £2000 to recognise the shortcomings in support provided during this period is an acceptable amount to recognise the injustice caused by the less comprehensive support put in place compared to what she should have received.
  4. In relation to her complaint that social workers failed to properly liaise with the Home Office to resolve her immigration status before she was 18, I note that the Council did not become aware of Ms B until she was 17. By that time she had already received two decisions from the Home Office refusing her asylum application. She had a number of solicitors who were helping her at different points and, as I have said above, there are numerous notes in the social work case record which demonstrate that social work staff liaised regularly with these solicitors. I note that Ms B's immigration status was regularly referred to and so apparently monitored, for example, in pathway plan reviews from 2009. I do not consider I have seen evidence to support Ms B’s contention that social workers failed to properly negotiate with relevant agencies about her immigration status before she was 18.
  5. Based on the information I have seen there is no evidence to support Ms B’s belief that the Council wrongly evicted her from the accommodation it was providing to her following a decision from the Home Office to reject her application for asylum in 2010. The Council correctly completed a Human Rights Assessment following the decision of the Home Office when Ms B’s rights to assistance from the Council ended unless a human rights need was identified. Ms B did not participate in this Assessment but this is not the Council’s fault. Whilst I have not seen a completed version of this Assessment I am satisfied that it took place given I have seen a copy of the Assessment form and a note of the file records at the time. It was not the Council’s decision to end Ms B’s entitlement to support as this was a decision of the Home Office but I am satisfied the Council properly considered its responsibilities given the circumstances. There are therefore no grounds for me to reach a decision that there was fault by the Council in respect of this part of the complaint.
  6. The Council has provided details of the support it put in place following Ms B’s judicial review of the Council in 2015. Based on the information I have seen there are no grounds for me to conclude that from then it did not provide the support to which she was entitled.

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Final decision

  1. The Council’s payment of £2000 to recognise the injustice caused by the fault in the provision of leaving care support was satisfactory. There is no fault in relation to the other parts of the complaint.

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Investigator's decision on behalf of the Ombudsman

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