Summary: Mrs X and her husband complained the Council did not properly pay them for missed respite service when they looked after a child as foster carers. The Council was at fault as it failed to provide a respite service to Mrs X and her husband whilst they cared for the child. However, the Council offered to pay Mrs X and her husband £25,200 for the lack of respite service. It also offered to pay them £500 for the time and trouble they went through to complain to the Council. I consider this is an appropriate remedy for the injustice caused by the fault.

The complaint

1. Mrs X and her husband, Mr X, complained the Council did not properly pay them for a lack of respite service when they looked after a child, Y, as foster carers. Mrs X says this caused her and Mr X distress. She wants the Council to pay them the correct amount they believe it owes them for the missed service.

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The Ombudsman’s role and powers

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 an organisation’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

4. I spoke with Mrs X about her complaint.
5. I considered the information Mrs X provided.
6. I considered the information the Council provided.
7. I considered our ‘Guidance on Remedies’.
8. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Children’s statutory complaints procedure

9. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services.
10. Stage one is a local resolution. The second stage is an independent investigation and the third stage is a review by an independent panel. A council should consider any recommendations made following each stage. A council does not have to agree with the recommendations, but if it does not do so, it should set out its reasons why clearly to the complainant.
11. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it. We may consider whether a council has properly considered the findings and recommendations of the independent investigation and review panel and any remedy the council offers.

What happened

Background

12. Mrs X and Mr X are registered foster carers with the Council. They also provide respite care to children with disabilities.
13. Mrs X and Mr X provided respite care to a child named Y. Y has complex health needs. Towards the end of 2012, the Council placed Y with Mrs X and Mr X on a long-term basis as there was a change to Y’s family circumstances. Mrs X said she and Mr X agreed to look after Y on the basis they would receive respite care from the Council. This would provide Mrs X and Mr X with support in looking after Y. Mrs X said at the time, the Council agreed to provide one day a week of respite care and two weeks of block respite care each year. From 2014, Mrs X and her husband became permanent foster carers to Y. The arrangement was for Y to remain with Mrs X and her husband until they became 18 years of age.

The complaint

14. In May 2020, Mrs X complained to the Council about several concerns she had with how the Council supported her and her husband whilst they looked after Y. As part of her complaint, Mrs X raised her concern about the lack of respite care from the Council. Mrs X said she and Mr X had spoken with several social workers since they started looking after Y on a permanent basis about receiving respite care. The social workers told them the respite care would start soon but it never did.
15. The Council investigated Mrs X’s concerns under the children’s statutory complaints procedure at stage one. The Council explained it had not been able to find a respite placement which would have been capable of meeting Y’s needs. The Council upheld this part of Mrs X’s complaint. As part of its remedy, it agreed to pay Mrs X and Mr X £19,992 for the two weeks of block respite care to reflect the seven years when it had not provided the service.
16. Mrs X escalated her complaint to stage two and three of the complaints process as the Council had not considered providing a financial remedy for the lack of one day a week respite care over the past seven years. The stage three report agreed and recommended the Council provide a financial remedy for this missed respite service for the past seven years. It recommended the Council calculate this based on the net amount that would have been paid to carers during this period.
17. The Council considered the Panel’s findings. It wrote to Mrs X and said, “Following a review of comparable cases our view is that the Council should compensate you at the level of £300 per month for the 7 years that services were not provided, amounting to a total of £25,200 (84 months x £300)”. The Council said this payment included the £19,992 it had already provided to Mrs X and Mr X therefore, the amount left to pay them would be £5,208. In addition to this payment, the Council offered £500 to Mrs X and Mr X for the time and trouble they went through to escalate their complaint further.
18. Mrs X and her husband were unhappy with how the Council had calculated the remedy for the lost weekly respite and complained to us. They said the Council had not calculated it by multiplying the total amount of lost hours with the hourly rate. This led to the Council offering a significantly less amount that they felt was owed.

The Council’s response to our enquiries

19. As part of our investigation, I asked the Council:
• how it calculated the payment it had provided to Mrs X and Mr X for the lack of two weeks of block respite care over a seven-year period.
• how it calculated the payment it had offered to Mrs X and Mr X for the lack of one day a week respite care over a seven-year period.
20. The Council responded and said:
• the payment in relation to the lack of two weeks of block respite care was based on the number of missed respite care hours multiplied by carers hourly rate. This amounted to £19,992. However, the Council said at the time it had calculated the payment, it did not consider that it had not provided a respite service to Y and if it had provided the service, there would have been no financial benefit to Mrs X and Mr X.
• in relation to the payment of the lack of one day a week of respite care, the Council considered the enhanced payments and support it had provided to Mrs X, Mr X and Y. It also considered the £19,992 it had provided to Mrs X and Mr X. The Council continued and said, it would have been fair and proportionate to consider a remedy for both missed respite provisions as one to begin with, as they were the same service and so the remedy would be the same. Mrs X and her husband would have benefited from respite care by having time away from caring for Y, rather than a financial benefit.
• it therefore considered both missed respite provisions as one missed respite service and that £300 per month during the seven-year period was a fair and proportionate remedy.

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Findings

21. The Council considered the stage three Panel’s recommendation however, it did not agree to provide Mrs X and Mr X with the amount of money the calculation would have added up to. The Council does not have to agree with the recommendation made by the Panel.
22. The Council calculated an overall remedy payment for all missed respite provision for it to be fair and proportionate. It considered:
• the payment of £19,992 it had already given to Mrs X and Mr X.
• the enhanced payments and support it had provided to them during the seven-year period.
• Mrs X and Mr X would have had no financial benefit if the Council had provided them with the respite service.
23. The total amount the Council offered to pay Mrs X and Mr X for the missed respite care provision was £25,200 and £500 for the time and trouble they went through to complain. I consider this remedy to be appropriate to address the injustice caused by the faults identified.
24. In addition, we do not recommend compensation like the courts do. The remedy payment the Council has offered to Mrs X and Mr X is more than what we would offer.

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Final decision

25. I have now completed my investigation. The Council was at fault but it has already acted to appropriately remedy any injustice caused to Mrs X and her husband.

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Investigator's decision on behalf of the Ombudsman