Summary: The complainant alleged that the Council delayed in sorting out her immigration status while she was in its care and it failed to deal with her complaint properly. We find that the Council did not refer the complainant to an immigration solicitor quickly enough and this caused the complainant avoidable distress and frustration. We have recommended actions to remedy the injustice caused to the complainant, which the Council has accepted. We have therefore completed our investigation, and are closing the complaint.

The complaint

1. The complainant, whom I shall refer to as Ms B, is dissatisfied with services she received from Thurrock Council’s children’s services team when she was a looked after child and as a care leaver/former relevant child from August 2021. Specifically, she says the Council failed to:
1. support and assist her with her application to formalise her immigration status. She first asked for this when she was 16 years old;
2. provide financial support to enable her to go to university in Autumn 2021 or to sort this out for Autumn 2022;
3. explain what its plans are and provide adequate support to her since at least August 2021; and
4. provide a response to the complaint she submitted about the above in 2021.
2. The injustice Ms B says she has suffered as a result of these failings includes that she was unable to go to university in 2021 or 2022. She has been caused avoidable distress and anxiety due to the ongoing lack of clarity as to her immigration status and the lack of clarity about broader plans and support.

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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 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)
5. 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 the final decision with Ofsted.

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How I considered this complaint

6. A previous investigator discussed the complaint with Ms B, considered the written information she provided and made written enquiries of the Council. In November 2022, the previous investigator issued a draft decision statement to the Council and to Ms B. I issued an amended draft statement because we had incorrectly considered Ms B as an asylum seeker and based our draft findings on this. We and Ms B accept that she was not an asylum seeker.
7. The Council did not accept the findings of the amended draft decision. I issued a further draft to take account of the Council’s additional comments. I have taken into account further comments from the Council and Ms B before making a final decision.

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What I found

The relevant law on looked after children and care leavers

8. 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.
9. 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.
10. When a child is looked after the Council must have a care plan that includes how the child’s needs will be met.
11. Children in care have an Independent Reviewing Officer (IRO) who is responsible for ensuring councils adhere to children’s care plans. They also chair the child’s statutory review, which normally takes place every six months. These are multi agency meetings where important decisions are made.
12. The 1989 Act places duties on councils to provide ongoing support for children leaving care. These duties continue until they reach age 21. If the council is helping them with education and training, the duty continues until age 25 or to the end of the agreed training (which can take them beyond their 25th birthday). 
13. A former relevant child is a young person aged between 18 and 25 (if in education) who was previously a looked after child between certain ages. A former relevant child is entitled to a personal adviser and should have a pathway plan. The personal adviser will act as a focal point to ensure the care leaver is provided with the right kind of support. The pathway plan should be based on a thorough assessment of the person’s needs. Plans should include specific actions and deadlines detailing who will take what action and when. They should be reviewed at least every six months by a social worker. A former relevant child is also eligible for help with employment, education and training, accommodation and living costs. The payment for living costs is currently around £60 a week which is the equivalent of universal credit for under 25s. Financial support is also available for travel.
14. Staying put arrangements enable young people who are former relevant children and have been looked after up to the age of 18 to remain living in the same foster home after they become 18 years old. The young person is no longer a looked after child but can remain living with their foster carers until they are 21.
15. Pathway plans should continue for all care leavers continuing in education or training. The plan should include details of the practical and financial support the council will provide. 
16. Care leavers in the UK are entitled to a one-off bursary payment of a minimum of £2,000 from the council. In addition, care leavers who have not been cared for by their parents after the age of 16 are eligible to receive the maximum maintenance support loans and tuition fee loans when attending university.
17. If a young person receives a decision to remove their leaving care support, they may complain under the statutory complaints procedure.

The relevant law on immigration status

18. Anyone who moves to the United Kingdom (UK) and does not have an automatic right to live here must make an application to regularise this. Councils are expected to pay to seek relevant advice on the immigration status of a child it accommodates where this needs resolving. Issues around immigration status of looked after children should be prioritised and considered under the child’s care plan or pathway plan.
19. Once an adult, councils do not provide assistance to certain groups of people with no recourse to public funds. In these circumstances councils should carry out a Human Rights Assessment before deciding not to provide services.
20. Schedule 3 of the Nationality, Immigration and Asylum Act 2002 prevents councils providing support to an adult under the Children Act 1989 provisions for leaving care services, except to avoid a breach of their human rights.

The Children Act 1989 complaints procedure

21. The Children Act 1989 and the Representations Procedure (England) Regulations 2006 provides that, those in receipt of certain services, can make representations or complaints to the council. The council has to investigate the complaint subject to certain restrictions.
22. There are three stages to the statutory social services complaints’ procedure. The first stage allows an informal resolution of the complaint. If that is not possible, the complainant is entitled to a detailed independent investigation of the complaint. The Council may also appoint an Independent Person (IP) to oversee the investigation. At the final stage, an independent Complaints Review Panel can consider the complaint. Once the complainant has completed the statutory complaints procedure, he/she can refer the complaint to the Local Government and Social Care Ombudsman, if they remain dissatisfied.
23. This procedure covers complaints about councils’ actions under Part 3 of the Children Act. Generally, services for looked after children fall within this complaint procedure.
24. In February 2022, we issued a practitioner’s guidance on the statutory complaints procedure.

What happened

Background

25. Ms B moved to the UK with her mother when she was around 10 years old (her mother had a work permit). Ms B first became looked after by Thurrock Council in March 2019 when she was 15. She was accommodated under section 20 Children Act 1989. She returned home but was then accommodated by the Council under section 20 again in late 2019. Ms B was by then 16 and remained a looked after child until she became 18 in the summer of 2021. Since turning 18 she has remained living with her foster carer in a staying put arrangement. The Council accepts that Ms B qualifies as a former relevant child.
26. Ms B had a university place from Autumn 2021. She has not yet been able to start this course as she was told by the Council that she did not qualify for university support due to her unresolved immigration status. The Council says it was prohibited from providing her with financial and other support to attend university and that her unresolved immigration status meant she could not apply for and/or qualify for the usual university tuition and maintenance grants. As said, we now accept this.
27. Ms B received the Home Office’s decision on her leave to remain application in early November 2022 and that she has been awarded leave to remain. It was too late for her to commence her university course in September 2022, but the university has agreed to defer it until Autumn 2023. I understand from Ms B that she is now working with her personal assistant to try to resolve outstanding issues regarding financing of her degree course from Autumn 2023.

The Council’s action regarding Ms B’s immigration status

28. The Council says that Ms B’s unresolved immigration status was first raised in a looked after child review meeting in late 2019. The Council agreed in that meeting that it would help Ms B to resolve this.
29. Ms B says that she obtained a copy of her birth certificate from her grandmother and her Barbados passport. Ms B says that, without these, she would not have been able to open a bank account, which she did.
30. The Council did not refer the matter to independent solicitors until the summer 2020. The Council says its files indicate that, during this earlier six to seven month period, the social worker was unsuccessfully trying to work with Ms B’s mother to obtain her assistance with Ms B’s immigration application. Ms B says that she was told that Covid-19 was delaying matters.
31. The Council says that in August 2020 Ms B’s solicitors asked for a number of documents to support Ms B’s application. The social worker duly asked Ms B’s mother for assistance but, in early September, Ms B’s mother told the social worker she could not provide the required documents. The Council says that Ms B’s solicitors had told the social worker it would help Ms B’s application if this information was available.
32. The Council says that the solicitor confirmed in late November 2020 that the application had been made to the Home Office without the documents from Ms B’s mother. This was nearly a year after Ms B had first raised the issue of her unresolved immigration status in the statutory review of the foster placement in December 2019.
33. The application was decided by the Home Office in early November 2022 and Ms B was awarded leave to remain. This was almost two years after the application was submitted. The Council is not responsible for the time taken by the Home Office to resolve Ms B’s immigration status.
34. The Council argues that, even it had made the referral to independent solicitors sooner, the Home Office would not have reached a decision in time for Ms B to attend university from September 2021 or 2022, given the time it took the Home Office to reach a decision.
35. The Council says that Ms B’s solicitor made representations and complaints to the Home Office about the delays in it reaching a decision.

Ms B’s plans to attend university and the Council’s position on this

36. Ms B obtained a university place to start in September 2021. She was unable to start this course because she could not access funding for the course fees due to her unresolved immigration status.
37. I note that in a case note written by the IRO in January 2021 he stated “…acquiring leave to remain…has been delayed due to no fault of your own, I’m really pleased that Thurrock have already provisionally agreed that should you wish to go to university that they would help fund this at the international fee rate initially”. His notes also confirm “Contingency plan re Education (international fees if legal status not agreed in time…)”.
38. In Summer 2021 the IRO expressed concerns about the delay in helping Ms B to sort out her immigration status. He referred to Ms B’s former social worker having verbally told Ms B that, if her immigration status had not been resolved by the time her university course was due to start, the Council would provide Ms B with international student level fees until her status was resolved and she could access funding in the usual way. He said that more recently, however, a newly allocated social worker had told Ms B that this was not the case and the Council would not provide international level fees to enable her to start her course while awaiting the Home Office’s decision. The IRO asked the Council to address these concerns.
39. The Council responded promptly stating that the former social worker said she had told Ms B that she hoped that the immigration status would be resolved in time for the start of her university course but, if not, she would consult senior colleagues on what support could be offered. The Council said the new social worker had contacted Ms B’s solicitor to try to chase up the Home Office’s consideration of the application but had been told the solicitor had received no information despite them chasing up the application. So, there was no way of knowing when a decision would be reached. The Council confirmed it would not meet the costs of Ms B’s university place if the decision on her immigration status was not reached by the Home Office in time for the start of her course.
40. The IRO went back to the Council stating the Council had the power to make a decision on providing interim funding for Ms B’s course while she was waiting for the Home Office decision. He pointed out that there were weekly funding panels and there should be a contingency arrangement on this point in Ms B’s pathway plan. He pointed out that, if Ms B’s immigration status was resolved after the start of her course, Ms B could apply for funding for the entirety of the year and so would be likely to be in a position to repay the amount paid by the Council. He asked for a further response from a more senior officer.
41. That response stated the Council had thoroughly explored the issues raised in depth and with the assistance of specialist legal advice. The officer said this would be discussed with Ms B the same day. The IRO understood that the Council subsequently told Ms B that it would be breaking the law if it provided such funding to Ms B, but that it would instead offer her an internship at the Council which would be related to her intended course of study.
42. The Council completed a human rights assessment in relation to Ms B in early 2022. This concluded there was no human rights basis that required it to fund Ms B’s university education.

Support provided to Ms B by the Council since she turned 18 in summer 2021

43. The Council has agreed to Ms B remaining with her foster carer under a staying put arrangement since she turned 18. It has financially supported this arrangement, and this continues to be the case.
44. Ms B has a pathway plan that has been reviewed since she turned 18. This confirmed her intention to study at university from September 2021 but that the funding for this was contingent on the outcome of her immigration application.
45. The Council says that in addition it has provided Ms B with support in addition to the staying put arrangements as detailed in the pathway plan. This has included:
• a year’s internship with the Council related to her chosen course of university study (2021 to 2022);
• met her travel costs;
• paid her a personal allowance of around £60 a week; and
• met her lunch costs.
46. The Council argues that, because Ms B’s legal status is that of an “overstayer”, its role is therefore limited to ensuring her human rights are not breached.

Ms B’s complaint to the Council

47. The Council says that Ms B complained to the Council in July 2021. The Council sought specialist immigration advice to ensure it had understood the immigration rules correctly. That advice confirmed the Council’s position. However, the Council felt it could not progress her complaint about arrangements and funding for her university placement as this was dependent on the decision from the Home Office and was not a matter that was in the Council’s authority.
48. The Council says that Ms B and her carer had a meeting with senior Council officers in September 2021. The Council followed up this meeting in a letter to Ms B in which it stated: “Until your legal status is determined we are unable to clarify your entitlements and this will create opportunities to consider whether you will be able to attend university in the future and when this would be possible”.
49. The Council says Ms B contacted her former social worker in May 2022 who reiterated that no decision would be made by the Council regarding her higher education until her immigration status was resolved.
50. The Council says Ms B did not formally complain in 2022.

Findings: Was the Council at fault and has this caused injustice?

The Council’s handling of Ms B’s immigration application

51. Ms B was already 16 when she asked the Council to help resolve her status. The closer she was to 18 the more urgent it was to resolve the issue and I consider the Council should have referred the matter to independent solicitors as soon as Ms B raised the fact that her immigration status required resolving. It could have, at the same time, approached Ms B’s mother for information. Failing to act promptly would mean that Ms B would be disadvantaged at 18 if she did not have leave to remain in the UK. And the Council would have known this and that the Home Office took time to consider immigration applications. So, I find that the Council delayed in making the referral to independent solicitors and this amounts to fault.
52. I do not consider that Ms B’s application would have been decided in time for her to start her university course in 2021, but the Council’s delay. It is also not possible to say that her Home Office application would have been decided in time for her to start her course in Autumn 2022. There are too many variables. It is also the case that, if the Home Office had met its published service standards in respect of deciding applications, the Council’s earlier delay would have been inconsequential. But I am satisfied the delay in referring Ms B to an independent solicitor has caused her avoidable distress, uncertainty, frustration and lost opportunity.
53. In other respects, the Council has continued to support Ms B as a care leaver, and she has been provided with financial support and the staying put arrangement. She also has a personal advisor. So, my view is that there is no fault by the Council here. It has continued to support her as a care leaver.

The Council’s handling of Ms B’s complaint in 2021

54. Ms B’s original complaint to the Council was about the lack of clarity regarding funding and lack of social work engagement. The Council told her that it could not progress her complaint about funding until the Home Office decision was known. The Home Office decision would have been a deciding factor in whether Ms B was entitled to funding for her university degree, and I can see why the Council did not progress the complaint further at this stage. Therefore, I find no fault.

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Agreed actions

55. When recommending a remedy, we seek to remedy the injustice caused as a result of identified fault. The Ombudsman's previous guidance on remedies states:
• 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;
• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty and inconvenience;
56. To remedy the injustice to Ms B, the Council will within one month of the date of the statement:
• apologise in writing to Ms B for the identified faults; and
• pay Ms B £1000 for avoidable distress and lost opportunity to have her immigration predicament referred to solicitors promptly when she came into care and to acknowledge the lost opportunity for Ms B to participate in other activities she would ordinarily have expected at her age as a result of the delay in referring her to a solicitor, particularly in terms of employment.
57. To address the systemic issues this complaint has highlighted, the Council will within three months of the date of this statement:
• to ensure that the delays in resolving the immigration status of looked after children do not recur, the Council should consider obtaining relevant documentation and information from parents, when possible, about their child’s immigration status, at the time a child becomes looked after, and also ensuring the Council has a mechanism for checking and identifying whether a looked after child does not have immigration status. There could be a prompt on the section 20 consent form, or when a Care Order is made, reminding social workers to obtain relevant documentation;
• provide training for staff on the importance of ensuring that the immigration status of a looked after child is identified and actioned as soon as possible when they become looked after together with training on any updated procedures for this resulting from the previous recommendation; and
• ensure that applications for immigration status for currently looked after children are being properly undertaken, immediately take action on any that have not yet been and confirm with us that this has been done.
58. The Council should provide evidence to us it has complied with the above.

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Final decision

59. I find that the Council was at fault by delaying in referring Ms B to a solicitor to resolve her immigration status, causing injustice to her. The Council has agreed the recommended remedial actions, and therefore I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman