Summary: The Council was at fault for a delay in considering whether to exercise its discretion to pay Ms X’s legal fees in connection with an immigration application, a delay in processing her housing register application and a failure to send a decision letter when it later changed her priority band. There were also failings in the complaints process. The Council should pay her £500 for the worry and frustration caused, and take action to prevent recurrence of the fault.

The complaint

1. Ms X, a care leaver, complained the Council
• failed to support her with her immigration status;
• failed to support her to secure stable housing for herself and her son; and
• failed to assist her with the costs of child-care, which she needs to complete her university course.
2. Ms X said the lack of support meant she has not had stability in her adult life, which has significantly affected her mental health and has had a negative impact on her son.

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What I have and have not investigated

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)
4. We usually investigate complaints about events up to 12 months before the complaint to us. In this case, Ms X complained about a lack of support with her immigration status since she left care in 2015. She complained to the Council in February 2020, July 2020 and November 2021. The Council considered the complaint using the children’s statutory complaints process and issued its final response, and adjudication following a stage 3 panel, in October 2022. Ms X complained to us in September 2022, shortly after the stage 3 panel hearing.
5. I have exercised discretion to consider the period from September 2019 on the basis that:
• this is the period considered in detail by the Council through its complaints process, although I will refer to events before then;
• I am satisfied there is sufficient information available to make robust findings and provide a worthwhile outcome for this period;
• it is unlikely there will be sufficient, reliable information to make findings for the action taken or not taken prior to that date. In particular, although Ms X says she would have had settled immigration status had the Council provided more assistance when she was still in care, the decisions about immigration are made by the Home Office and it would be difficult for me to say, even on balance, that the outcome would have been different but for any Council fault.

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The Ombudsman’s role and powers

6. 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)
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. 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

10. I considered:
• the information provided by Ms X and the Council;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
11. Ms X 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

Relevant law and guidance

Looked after children

12. Under section 20 of the Children Act 1989, councils have a duty to provide accommodation for any child in need in their area who appears to them to need accommodation because:

• there is no-one who has parental responsibility for the child;
• the child is lost or abandoned; or
• the person who has been caring for the child is prevented, whether permanently or temporarily and for whatever reason, from providing suitable accommodation or care.

13. A child accommodated in this way, whether with the consent of their parents or guardians or following a court order, is a “looked after child” (LAC). The council, as corporate parent, has a duty to safeguard and promote their welfare.

Care leavers

14. The Children Act 1989 places duties on councils to provide ongoing support for children leaving care. These duties continue until they reach age 25.
15. Councils should develop a pathway plan, that sets out the care leaver’s assessed needs for support. It should also appoint a personal adviser to act as a focal point to ensure the care leaver is given the right kind of support to meet those needs. Pathway plans should include specific actions and deadlines detailing who will take what action and when, and they should be regularly reviewed.

Children’s statutory complaints process

16. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. This says that where some aspects of a complaint fall outside the scope of this procedure, “councils are encouraged to offer a single complaint where possible”, and uses the example of complaints about children’s services and housing services.
17. The first stage of the procedure is local resolution. If the complainant remains unhappy, they can ask for the complaint to be considered at stage two. At stage 2, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
18. If the complainant remains unhappy with the outcome, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
19. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
20. In this case, Ms X complained about inaccuracies at stage 2 and 3 in relation to her complaint about immigration support. In addition, she said her complaint about lack of support about housing was not fully explored at stage 3 as it was considered to be outside the scope of the children’s statutory complaints process, although it was considered at stage 2. I have therefore carried out further investigation of the complaints made.

Housing allocations

21. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing.  Most councils keep a housing register which records information about applicants waiting for housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
22. An allocations scheme must give reasonable preference to applicants in the following categories:
• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds;
• people who need to move to avoid hardship to themselves or others;
  (Housing Act 1996, section 166A(3))
23. This Council operates a choice based lettings scheme. This means applicants can bid on properties that suit their needs in terms of location and property type. Applications are placed in one of three bands.
24. Band 1 is awarded to those applicants with highest priority and an urgent need to move. This includes those with severed medical or disability problems that make it difficult for them to manage in their homes.
25. Band 2 is awarded to those applicants who are entitled to additional priority, for example, because a member of their household is working or in training.
26. Band 3 is awarded to those applicants with a moderate housing need and a less urgent need to move. This includes applicants who are care leavers.
27. In relation to care leavers, the scheme says applications from care leavers will only be accepted where the applicant is more vulnerable than others leaving care, and where accommodation in the private rented sector would have a detrimental effect on their transition to independent living. Otherwise, the Council will assist care leavers to access private rented accommodation.
28. Applications are prioritised within the bands, based on the date their application is placed on the register.

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What happened and my findings

29. Ms X was an unaccompanied asylum seeker, who was a “looked after child” (LAC) before she was 15. Prior to Ms X reaching 18, the Council told Ms X she needed to make an application to the Home Office for refugee status.
30. When she reached 18 and left care, the Council arranged for her to move into housing with some support. The Council allocated a personal adviser, who prepared a pathway plan, which has been reviewed regularly.
31. Ms X’s immigration position is complex and has changed a number of times as a result of various applications to the Home Office. For a period after she turned 18, from around June 2015 to September 2019, Ms X had a discretionary right to remain in the U.K, but with no recourse to public funds (NRPF). NRPF means she was not able to apply for benefits or housing assistance under the Housing Act 1996. During that period, the Council assisted her with “No Recourse” housing and subsistence payments.

Immigration assistance (complaint 1)

32. The Home Office issued a biometric residence permit (BRP) in September 2019. A BRP can be used to confirm the person’s identity, their right to study and their rights to any public services or benefits. The Home Office granted Ms X limited leave to remain in the U.K, which expired in March 2022.
33. In January 2022 Ms X’s personal adviser asked her if she had contacted an immigration solicitor to assist with a further application to the Home Office. Ms X replied, asking for financial assistance with the solicitor’s fees because she was not eligible for Legal Aid and had no means of paying the fees herself. I understand she was not eligible for Legal Aid because her Universal Credit had been stopped as she was a full-time student.
34. The personal adviser sought advice from the relevant Council team and was told the Council does not provide financial assistance “for these circumstances where the person has status”. The personal adviser provided Ms X with details of law firms and organisations that could assist on a “pro bono” basis, which means they would not charge for their services. The records show Ms X contacted a number of these, but none were taking on new cases as they were too busy. Ms X told the Council that friends had told her the Council had assisted them with legal costs and said she understood it had a legal duty to do so.
35. In mid-February, Ms X provided a quotation of £600 plus VAT (total £720) to assist with the application. She said she would also incur an application fee of £1033 each for herself and her child, and a surcharge of £3,120. The total costs were £5,186.
36. Also in mid-February, the personal adviser did a home visit, and the record shows they discussed whether the Council could assist with the application costs. The personal adviser agreed to discuss the request with managers. Ms X chased the personal adviser for an update on 28 February and 9 March.
37. The personal adviser received advice from a manager on 9 March, which included a link to make the appropriate application online and another link to request a waiver of the fees if Ms X could not afford the payment. The personal adviser forwarded that information to Ms X and suggested an appointment to complete the online application together. Ms X declined this on the basis her case was complex, and the personal adviser was not an immigration expert. She said she wanted a solicitor to assist her to maximise her chances of success and asked whether a £1,500 grant for care leavers could be used to fund the legal costs.
38. The personal adviser spoke to Ms X and her advocate to explain the Council was not refusing to assist, but its expectation was that Ms X would complete the online forms and if the waiver was refused it would explore further whether to support her. Later in March, the Council did agree to fund the solicitor’s fees. It asked Ms X to provide a solicitor’s invoice, following which payment was processed on 30 March 2022. Ms X said she received the funds on 8 April 2022, which was after her leave had expired.
39. In response to my enquiries, the Council confirmed the payment was made under its “Financial policy and guidance on transition to adulthood 2020-21”. This says: “Children’s Services will provide up to £1,500 to young people who have a negative immigration status and No Recourse to Public Funds (NRPF) where it is assessed that they are likely to be able to make a successful application that will give them access to public funds and services”. Payment was made on the basis it was likely to be a successful application.
40. At stage two of the statutory children’s complaints procedure, an officer reported the Council had a blanket policy not to provide support for legal fees on immigration matters. However, Ms X was entitled to a fee waiver as a former looked-after child and care leaver. The officer said he had advised Ms X about this in 2018 and the stage 2 report records the personal adviser gave Ms X the same advice in early 2022.
41. The investigating officer did not uphold the complaint about a lack of support with legal fees as they found the Council did not have a legal duty to provide the financial support requested under the Children Act 1989, or the Care Leavers (England) Regulations 2010. They noted the Council had later agreed to provide the support on humanitarian grounds.
42. The stage 3 panel confirmed this complaint was not upheld because the Council acted reasonably and had discharged its duty to Ms X.

Analysis and findings – immigration support

43. Immigration is a complex area and advice is usually needed from a registered immigration adviser. Ideally the young person’s immigration status will be settled before they reach age 18, as children growing up in care have a strong claim to British citizenship and because application costs are significantly higher for adult applications. In this case, an application was made before Ms Y was 18 but she was not granted refugee status. As she had limited leave to remain, she had to make further applications to extend the leave.
44. In January 2022 the Council reminded her of the need to make a further application as her leave was due to expire in March 2022, and referred her to sources of legal assistance that would not involve legal charges. In addition, the personal adviser offered to assist Ms X to make an online application.
45. Ms X wanted to secure legal advice, given her complex immigration case and the history of failed applications. She demonstrated she was unable to secure free advice and asked the Council to assist her with the legal costs.
46. The Council does not accept it owes a legal duty to care leavers to provide assistance with legal fees for immigration applications. Although good practice would suggest that it does assist care leavers with their immigration matters, I have not identified any specific law or regulation that requires a council to pay their legal costs.
47. At stage 2, the Council said it had a blanket policy of not providing this assistance. In all cases where councils have a policy, they should consider whether to depart from that policy, based on the individual’s circumstances. In this case, Ms X’s immigration case was complex, she had not been able to obtain free legal advice, and needed to make an application quickly because her leave was due to expire very soon. Whilst it was reasonable for the Council to expect her to seek a waiver of the application costs an attempt to find free legal advice, it should have considered exercising discretion to assist her with the legal costs when she asked it to help her. It did agree to do this in March 2022, but I consider it should have done so sooner, given the urgent need to make the application. In the event, the payment was not made until after her leave expired, which meant her application was made late. It is unclear whether this affected the outcome of the application.
48. The delay in considering exercising discretion was fault, and caused avoidable worry and frustration for Ms X. It also meant the funds were not provided until after her leave had expired.

Housing support (complaint 2) – analysis and findings

49. Ms X applied to join the housing register in October 2019. The Council said there was a delay of 12 to 18 months in processing applications at that time. When Ms X’s personal adviser asked the housing team for an update in early February 2020, the application was prioritised and was accepted on 13 February 2020. The Council said she needed two bedrooms and awarded band 3A on the basis Ms X was a care leaver, with an effective date of October 2019.
50. We usually expect housing applications to be considered within eight weeks. The Council prioritised the application when an update was requested, but it still took six weeks longer than it should have, after taking account of the Christmas break. This was fault but did not cause Ms X an injustice, because the effective date was the date Ms X made the application, and she was at position 1563 on the housing register in that band with an assessed need for two bedrooms, so there was no possibility she missed out on an offer due to the delay.
51. In response to my enquiries, the Council said there is currently a 20 month delay in assessing housing register applications. It said it had been working on a new housing database for two years, which it expects to implement in summer 2023, and which it hoped would result in a reduction in the waiting times for processing applications. It is likely the new database will add to delays in the short term, as staff get used to a new way of working. Therefore, I will recommend further action is taken to address the processing delays.
52. I am satisfied the Council wrote to Ms X to confirm its housing register decision. Although Ms X later said she did not receive this letter, she did email the Council twice about using the Council’s online portal to view her housing register account. In the first email she referred to a letter she had received and in the second email she attached a copy of the decision letter.
53. In responding to her queries, on 1 April 2020, the Council explained that she would not be able to bid until she was higher on the list, and it had verified her application. Following further queries from Ms X’s personal adviser, this was explained again in July and December 2021. Therefore, although Ms X was not able to bid for properties at the time of her complaint, this was in line with its policy and the Council explained the approach to Ms X. It was not at fault.
54. In the meantime, by May 2021, the Council changed the priority band awarded from band 3 to band 2. The Council accepts it did not send Ms X a decision letter informing her about the change, with details of any rights of review. This was fault and meant she missed the chance to ask for a review if she considered its decision was wrong.
55. That said, the records indicate her personal adviser was aware of the change, queried reason for it, and was advised this was because Ms X was at university and band 2 can be awarded where the applicant is training. Although Ms X considers she should be awarded band 1, the highest priority, I have not found fault with the way the Council considered the award of band 2, based on the information seen. We are not an appeal body. Where there was not fault in the decision-making process, we cannot comment on the decision reached.
56. Ms X also complained the Council had not considered an offer of housing through its fast-track process, in which it makes up to fifteen offers of accommodation each year to care leavers. The Council said this was a discretionary scheme it had been trialling in recent years to assist the most vulnerable care leavers into social housing. The process involves children’s social care identifying cases for prioritisation. In this case, the Council decided Ms X’s needs were not considered high enough for the fast-track process. In addition, its record shows it took into account the scheme only allowed the offer of a one bedroom flat, which would not have been suitable for Ms X, who needs two bedrooms. The Council was not at fault.

Assistance with child-care costs (complaint 3)

57. Ms X asked for financial support for childcare costs during communications about the stage 1 response to her complaint in early February 2022. The Council advised her it had no duty to meet the costs of childcare for students and suggested other sources of funding Ms X could explore, including support from the university.
58. Ms X disputed whether those funding sources were available to her due to her immigration status and because she had pursued a scholarship, and she maintained the Council had a duty to assist her as a care leaver.
59. In the stage 2 report, dated 21 April 2022, the Council said, in order to assess the need for support with childcare costs, it would have to undertake a full financial assessment, and explore whether Ms X had obtained all available grants and funding through the university. It said Ms X had previously not wanted to share financial information. The investigating officer did not uphold this complaint, noting there was no requirement for the Council to assist with childcare costs. The stage 3 panel made no finding on this complaint because it said two aspects of this complaint were unclear from the information in the stage 2 report.

My findings – child-care costs

60. Subsequently, the Council did agree to provide some financial support, although there was some delay in doing so, which the Council said was due to delays in Ms X providing the financial information it asked for. Since this support was discretionary, and there was no undue delay in the Council agreeing it when it had all the information it needed to consider this, I have not found fault.

Complaints handling

Stage 1

61. Ms X complained in February 2020 and July 2020. Her complaints are included in the papers for the stage 3 panel, but there is no evidence of a response at that time. There is reference to a further complaint in November 2021, but this is not included in the papers for the stage 3 panel, and I have not seen a copy of it. Ms X raised further concerns in January 2022 and this prompted the Council’s investigation under the children’s statutory complaints process.
62. At stage 1, there were a number of emails between the Council and Ms X in January and February 2022, during which some issues were resolved, and new issues were added by Ms X.
63. On 4 February 2022, Ms X raised a new issue about whether she was entitled to a £1,500 grant as a young person with a negative immigration status and NRPF. Her email suggests she thought the complaint was now being considered at stage 2 of the complaints process. The Council responded that the complaint was still at stage 1 and that Ms X was not eligible for this funding because this was intended to support young people to return to their country of origin. The Council later said she was not eligible because it was not required to support her with her immigration matters as she could apply for a waiver of fees. The complaint about whether Ms X was entitled to this grant was not considered further under the complaints process but was referred to in Ms X’s request for a stage 3 panel. In response to my enquiries, the Council clarified that it did ultimately pay her legal fees under this policy, which provides for grants up to £1,500 in certain circumstances.
64. The records indicate the Council agreed to escalate the complaint to stage 2 on 11 February 2022. In its adjudication letter in October 2022, the Council accepted there was a delay in progressing the complaint from stage 1 to stage 2.

My findings – stage 1 complaint

65. It does not appear the Council considered the complaints in 2020 under any formal complaints process, nor provided a clear response to the issues raised. By January 2022, the issues had changed, but there was still no clear complaint response, just a series of emails responding to various points Ms X raised. The Council should have provided a formal response to the complaint at stage 1 and set out the process for escalating the complaint to stage 2. This might have avoided the drift that occurred between stage 1 and stage 2. On this basis, I find fault with the complaints handling at stage 1. This fault caused frustration for Ms X and meant she was put to additional time and trouble pursuing her complaints.

Stage 2

66. The investigating officer investigated the three complaints set out above and issued their report on 21 April 2022. The Council issued an adjudication letter on 20 May 2022, accepting the findings and recommendations made. The stage 2 report shows the investigating officer considered the complaints raised and did so without delay. I have not found fault with the complaints handling at stage 2.

Stage 3

67. Ms X was very unhappy with the outcome and asked the Council to consider the complaint at stage 3 on 1 July 2022. She said some of the dates and information in the stage 2 report about her immigration applications were incorrect. She said the investigating officer had not properly considered her views and that they had dismissed crucial information she had shared with them. She said their initial conversation did not go well because the questions the investigating officer asked her were discriminatory and racist. She also said the account given by an officer from Children’s Social Care was not an accurate reflection of what happened.
68. A stage 3 panel was held on 17 August 2022 and issued its decision on 24 August 2022. The stage 3 panel agreed with the findings on the first two complaints but made no finding in relation to the complaint about childcare costs (not upheld at stage 2).
69. The Council issued an adjudication letter on 17 October 2022. It said it would clarify why there was no finding for complaint 3 and would respond separately. I have seen evidence it did attempt to clarify this but not that it responded to Ms X after doing so. In relation to the stage 3 panel recommendations, it said:
• it had confirmed Ms X was in Band 2A and she could track her position on the housing register via her online account;
• the personal adviser had assisted Ms X to identify additional benefits she could claim and supported her in making a referral for support with child care costs;
• the personal adviser had attempted to complete a financial assessment to assess whether Ms X should be supported with childcare costs, but Ms X had failed to provide financial information;
• it agreed to pay Ms X £300 to reflect the difficulties in progressing the complaint from stage 1 to stage 2;
• in relation to possible inaccuracies in its records, the personal adviser would provide advice about obtaining copies of her case records and rectifying personal data where it was inaccurate or incomplete;
• it would follow up her claims about discriminatory and racist behaviour with Ms X, the investigating officer and the independent person, who oversaw the stage 2 investigation.
70. In response to my enquiries, the Council said:
• it had not paid the £300 offered because Ms X had not provide bank details;
• it had provided details of how to make a subject access request and provided evidence it had done so;
• it had not followed up her claims about discriminatory and racist language at stage 2, but has now arranged a meeting with Ms X, the investigating officer and the independent person, to discuss her concerns,

My findings – stage 3

71. It was appropriate for the housing complaint to be considered as part of the statutory complaints process, which is in line with the guidance set out at paragraph 16 above. In such cases, officers from the housing team should be available for interview by the investigating officer at stage 2 and for a stage 3 panel.
72. In this case, the records show there was sufficient information available to reach conclusions about the complaint at stage 2 but at stage 3, the panel could not fully consider the complaint. The failure to ensure housing officers attended the stage 3 panel or were accessible to respond to any questions was fault. But any injustice to Ms X was remedied but the panel recommending further actions for the Council to take and by my investigation.
73. There was no other fault in the way the complaint was considered by the stage 3 panel. However, the Council delayed in taking action in relation to her concerns about discriminatory and racist behaviour prior to our involvement. The failure to implement the recommendation was fault, which caused frustration for Ms X and contributed to her view the Council was not supporting her.

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Agreed action

74. Within one month of the date of the final decision, the Council will apologise for the failings identified and pay Ms X £200 for the worry, frustration and additional time and trouble Ms X was put to as a result of the faults, in addition to the £300 already offered, making a total payment of £500.
75. Within three months of the date of the final decision, the Council will:
• remind relevant staff of the need to consider exercising discretion to depart from its policies, depending on the circumstances of the individual case. Where it decides not to depart from the policy it should record its reasons and explain them to the individual;
• remind relevant staff of the need to issue housing register decisions in writing, with reasons and any rights of review or appeal;
• review its process for assessing housing register applications (including new applications, change of circumstances requests and review requests), and consider what further steps it can take to reduce the current delays in addition to the implementation of its new database. This may include recruiting or redeploying and training additional staff to address the backlog. It should provide an action plan setting out the steps it proposes to take; and
• remind relevant staff that where a complaint considered under the children’s statutory complaints process includes issues that would usually be out of scope, relevant officers should be available for interview at stage 2 and to attend a stage 3 panel, to ensure all issues can be properly considered.
76. The Council should provide us with evidence it has complied with the above actions.

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Final decision

77. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman