Summary: Mr B, the manager of a fostering agency, complained about the Council’s decision to refuse his request for an uplifted fee for an enhanced foster care placement. We found the Council was at fault in failing to use the correct contract framework and consider all the evidence when reaching a decision on the request. It also delayed in responding to Mr B’s request in writing and in responding to his complaint. In recognition of the injustice caused, the Council has agreed to apologise and make a payment to the agency.

The complaint

1. Mr B is the manager of a fostering agency. He complains on behalf of the agency and on behalf of a child placed with one of its foster carers about the Council’s decision to refuse his request for an uplifted fee for an enhanced, rather than a standard, foster care placement for the child. He says his agency has missed out on payments because of the Council’s decision and the child’s wider needs have not been met.
2. Mr B also complains that the Council delayed significantly in responding to his complaint putting him to time and trouble.

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The Ombudsman’s role and powers

3. 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)
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 all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
6. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Key facts

7. A child, C, was placed in foster care in 2011 via a fostering agency. Mr B’s fostering agency (‘the Agency’) later took over the original agency.
8. In October 2019 Mr B requested a fee uplift on the basis that C was displaying challenging and risk-taking behaviour, self-harming and was suffering from profound mental health difficulties.
9. Having received no response to his request, in December 2019 Mr B telephoned the team manager for the 16-25 team who declined the request for an uplift and explained the reasons for the decision.
10. On 17 January 2020 Mr B complained to the Council. He said it had delayed in responding to his request for a fee uplift and had given no reasons for its decision to refuse the request. He said C’s needs met the criteria to attract an enhanced fee and argued the placement had been incorrectly commissioned and a fee uplift should be agreed and backdated to October 2019 when he initially requested it.
11. The Council responded to Mr B’s complaint at stage 1 of its complaints procedure on 14 February 2020. The Council accepted that further detail should have been provided as to why C should not receive a fee uplift. It proceeded to explain the reasons for the Council’s view that C did not meet the criteria for an enhanced fee. Mr B was dissatisfied with the response and requested that his complaint be escalated to stage 2 on 20 March 2020.
12. On 23 March a national lockdown was imposed because of the COVID-19 pandemic.
13. On 27 April Mr B requested an update. The Council apologised for the delay and explained that the commissioning manager (‘Officer X’) was reviewing his complaint and would write to him as soon as possible.
14. On 27 May Mr B complained about the delay in providing a stage 2 response. The Council apologised and explained that the pressures on Children’s Services caused by COVID-19 had affected Officer X’s ability to complete her investigation.
15. In June Officer X contacted Mr B apologising for the delay and explaining the reasons for it. She requested further information and a telephone call with Mr B.
16. On 8 July 2020 Officer X wrote to Mr B apologising that she had not yet completed the stage 2 response and said she would endeavour to do so the following week.
17. On 20 July Mr B requested an update. Officer X responded on 22 July saying she had completed a draft response which would be sent within the next few days.
18. Mr B wrote to the Council on 21 August saying he would contact the Ombudsman if he did not receive a stage 2 response by the end of the month.
19. On 24 August 2020 Officer X issued a stage 2 response. She said C was originally placed under a Council contract with another agency, but this was superseded by a framework contract between the Agency and London Care Placements (LCP). So, the process for making the decision, including the criteria used, should have been guided by the LCP contract. She said that, although the stage 1 complaint response provided several reasons why the request for an uplifted fee had been refused, these were not clearly linked to the criteria for an enhanced fee in the LCP contract framework.
20. Officer X upheld Mr B’s complaints that:
• he did not receive a prompt response in writing to his original fee uplift request;
• the process for requesting a fee uplift was not sufficiently clear;
• the 16-25 team were not aware that the placement came under the LCP contract framework, so the reasons given for declining the uplift were not linked to the contract criteria.
21. Officer X said Mr B and the Council continued to have differing opinions about whether C met the criteria for an enhanced package and whether a fee uplift was justified. She recommended:
• a meeting to discuss the evidence linked to the criteria for a fee uplift and, if there was still no agreement following the meeting, both parties should take up the option of independent mediation;
• the Council apologise to Mr B for the shortcomings in the process and the delay in reviewing the stage 2 complaint; and
• the Council should implement the learning from the complaint in terms of having a clear process for managing requests for fee uplifts that is clearly linked to the contract framework under which the placement was made.
22. Mr B was unable to work between September 2020 and April 2021 due to ill health. When he returned to work he wrote to the Council explaining that, contrary to Officer X’s view set out in her stage 2 response, the contract in place was not the LCP model but a national framework contract which was commonly used at the time. He said the original contract was still in force, so the framework criteria set out in the LCP were not applicable and the recommendations in the stage 2 response were flawed. Mr B complained to the Ombudsman.

Analysis

The fee uplift

23. In response to my enquiries, the Council accepts that the incorrect framework was used to reach the decision to refuse the fee uplift. It says the contract with the original foster carers was the National Fostering Contract. However, the decision not to grant an uplift was based on the LCP framework (which it frequently uses with providers) despite there being no evidence to suggest the contract was transferred to the LCP framework. This was fault.
24. The Council says the decision to refuse an uplift was based on C’s presentation at the time. But it accepts it failed to consider evidence provided by the Independent Reviewing Officer who, in October 2020, supported the uplift and the minutes of a meeting held on 12 October 2020 between professionals. This was also fault.
25. Having reviewed the matter, the Council has now agreed that C’s needs met the level where an uplift would have been applicable.
26. Mr B says that, in October 2019 when the fee uplift was requested, the contract in force was the new London Care Services (LCS) contract. This gives a range of £953 to £1335 per month for an enhanced fee. He says, if the Council had accepted his arguments at the time and agreed an enhanced placement, this would have initiated a new contract under the new framework. So, he considers the Council should pay an amount in the middle of the LCS range backdated to October 2019 (104 weeks).
27. Mr B says the average weekly payment for a higher rate placement at the time was £1186.49. He says the Agency was paid £1176.98 per week for another child placed with the Council at the time. He considers the Council should pay this amount for C resulting in a total payment of £42,398.72 for the period in question.
28. The Council says its legal team has reviewed the contracts it had in place with other agencies at the time together with the information provided by Mr B in relation to the LCS contract. It says the contract for C’s care was not with the Agency (as it took over from another agency) so the pricing structure provided by Mr B is not applicable.
29. The Council says the average cost of a placement is £955.08 per week based on the requirements of its current cases. However, this includes two very high cost placements that have pushed the average up. It has offered to pay the Agency £20,000 for the period of care.
30. The Council paid £760.30 per week for C’s care during the period in question. The difference between £760.30 and £955.08 is £194.78 per week. This amounts to £20,257.12 for a period of 104 weeks.
31. I consider the Council’s offer to pay the agency £20,000 (together with the agreed action set out in paragraphs 33 and 34 below) represents a satisfactory remedy for the injustice caused by its failure to use the correct framework and consider all the evidence when reaching its decision on the request for a fee uplift.

The Council’s response to Mr B’s complaint

32. I find the Council was at fault in that there was a significant delay in responding to Mr B’s stage 2 complaint. He escalated his complaint to stage 2 in March 2020 but did not receive a response until August 2020.
33. While I accept there were difficulties caused by COVID-19, it was not acceptable for the Council to delay five months in providing a substantive response. The delay caused Mr B a significant injustice as he was put to time and trouble in chasing a response.
34. At stage 2, the commissioning manager accepted there had been a delay in responding to Mr B’s request for a fee uplift in writing and in responding to his stage 2 complaint. She recommended a letter of apology should be sent to Mr B. The Council accepts there is no evidence of this having been done. This was further fault.

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Agreed action

35. The Council has agreed that, within one month, it will:
• make the offered payment of £20,000 to the Agency. The Agency should ensure that a fair proportion of the payment is passed on to the foster carer in recognition of the support she provided to C during the relevant period;
• send a written apology to the foster carer for its failure to use the correct framework and consider all the evidence when reaching its decision on the request for a fee uplift. The foster carer can explain the apology to C at a suitable point; and
• send a written apology to Mr B for the shortcomings in the process, the delay in responding to his stage 2 complaint and the failure to send the written apology recommended at stage 2.
36. The Council also agrees that, within three months, it will provide evidence to the Ombudsman that it has reviewed its procedures for deciding requests for fee uplifts to ensure the process is transparent. It will issue guidance on the process setting out timescales and the need for a response to the request to be provided in writing as recommended by the commissioning manager at stage 2.

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Final decision

37. I uphold Mr B’s complaint.
38. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman