Summary: Ms X complains the Council failed to recognise her as a foster carer for Child Y, and failed to take legal action to protect Child Y. This meant she was forced to incur debt to keep Child Y in her care. The Ombudsman finds fault with the Council for failing to remedy the fault found in the stage three review panel, and the stage two investigation. The Council has agreed to backdate the foster care payments that should have been given to Ms X and repay her legal fees. The Council will also pay a financial remedy for the distress and time and trouble caused to Ms X.

The complaint

1. Ms X complains the Council has repeatedly failed to recognise her and her partner as a foster carer and refused to pay the allowance they would be entitled.
2. Ms X also complains this has resulted in her incurring debt from legal action to keep the child in her care.
3. Ms X complains the Council has failed to properly consider the recommendations from the stage 3 panel.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I considered Ms X’s complaint and information she provided. I also considered information from the Council.
7. I considered comments from Ms X and the Council on a draft of my decision.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legislation and background

Friends and family carers

General duties and Southwark judgement

9. Section 20 of the Children Act 1989 says councils shall provide accommodation to any child in need within their area who needs it, because:

• there is nobody with parental responsibility to care for them;
• they have been lost or abandoned; or
• the person who has been caring for them being prevented from providing suitable accommodation or care.

10. Councils cannot accommodate a child under section 20 if a person holding parental responsibility objects and is willing and able to care for the child or arrange care for the child.
11. Councils need to distinguish between private arrangements made between parents and carers, and arrangements in which the child is accommodated under the Children Act 1989 and so is a looked after child.
12. When a child needs to be accommodated, the law says councils should consider placing them with family or friends first. Friends and family foster carers can receive a fostering allowance and other practical support from the council.
13. The courts have considered whether arrangements for a child to live with a relative or friend are truly a private arrangement. In a key case (London Borough of Southwark v D [2007] EWCA Civ 182), the Court said where a council has taken a major role in arranging for the friend or relative to care for the child, it is likely to have been acting under its duties to provide the child with accommodation.
14. The Court considered a private fostering arrangement might allow a council (otherwise likely to have had to provide accommodation for a child), to ‘side-step’ that duty. For a council to side-step its duty, it must have given the carer enough information to allow them to give their ‘informed consent’ to accepting a child under a private fostering arrangement. To do this the carer must have known, because of what the council told them, that the child’s parent would continue to be financially responsible. Without that informed consent, the council could not side-step its duty.

Family and friends focus report

15. In 2013, the Ombudsman published a focus report, ‘Family Values: Council services to family and friends who care for others’ children’. The report highlighted common faults in councils’ handling of cases where children were living with friends and family. This included councils failing to recognise they had a duty to accommodate a child and gaining agreement to an informal family and friends care arrangement under duress.

What happened

16. Ms X used to be a foster carer. One of Ms X’s previous foster children had a Child Y. In 2019, the Council asked Ms X to care for Child Y due to concerns with the parenting capacity of Child Y’s parents. Ms X asked the Council to asses her as a private foster carer which would entitle her to foster carer allowance for Child Y. The Council told Ms X told she did not meet the criteria to be assessed.
17. Child Y was in Ms X’s care for 12 weeks, before Child Y’s father did not return them after contact.
18. Ms X’s contacted the Council and says it advised her to take legal action to return Child Y to her care. She says the Council agreed to part fund the legal costs.
19. Ms X went to court to seek a Child Arrangement Order (CAO) to return Child Y to her care. The result of the of CAO was delayed as the court ordered the Council needed to complete further assessments and checks on Child Y’s parents before it could make its determination.
20. The Court granted the CAO in September 2019 and Child Y was returned to Ms X’s care. In the order, it determined that both of Child Y’s parents did not have the capacity to parent Child Y and granted the CAO to Ms X. By the end of the CAO proceedings, Ms X had incurred costs of over £40,000 in legal fees.
21. During the proceedings of the CAO, the Council transferred Child Y’s case to another Council as that was where the child was living with their parent while the Court decided the CAO.
22. Ms X complained to the Council that it should have been assessed as a foster carer for Child Y. She said the Council should backdate the payments to when Child Y at first came into her care. She complained the Council should not have transferred the case to another Council and should have remained responsible for Child Y.
23. Ms X also complained the Council failed to take legal action to ensure Child Y was safe. As a result, she was forced to take legal action and incurred large costs.
24. The Council at first said that it would not assess Ms X as a foster carer. It also said it had only agreed to pay for a first consultation with a solicitor at the cost of £200.
25. The stage 3 panel upheld Ms X’s complaint. It said the Council should have assessed Ms X as a foster carer which would have likely meant she would have been granted foster carer allowance. It also said the Council should consider how much money it had saved by Ms X’s pursuing the CAO, which meant the Council did not have to start care proceedings. The panel recommended the Council look favourably on Ms X’s request for repayment of legal fees. The panel commented the Court had found that both parents did not have capacity and that Ms X was the suitable carer for Child Y.
26. The Councils response to Ms X after the stage three recognised that is should have assessed Ms X as a foster carer when Child Y came into her care. This would have allowed her to be granted financial support for Child Y.
27. The Council felt that it would be speculative to say that it would have taken legal proceedings to remove Child Y from their parents. Therefore, it did not agree it should cover Ms X’s legal costs. It offered her £3175, with the reasoning that this is how much, on average, legal proceedings cost.
28. Ms X remained unhappy with the Council’s response and bought her complaint to the Ombudsman. She also started a new complaint to the Council that it was refusing to backdate the foster carer allowance payments, despite recognising that she should have been assessed as a foster carer.
29. The stage two for the second complaint upheld the Council should retrospectively consider Ms X a foster carer and backdate the payments. It also found the Council should retrospectively consider Child Y a Looked After Child from the time they came into Ms X’s care, and grant access to the Adoption Support Fund.
30. It also found that as the Council should have recognised Ms X as a foster carer and Child Y as a Looked After Child. It found the Council should not have transferred the case to a different local authority. It recommended the responsibility should be rescinded from the other Council, and the Council should resume responsibility for Child Y.

Analysis

31. Ms X’s 2 separate complaints are about the same issues. The Councils failure to recognise her as a foster carer, and the injustice this has caused her and Child Y. In my view, the second complaint is an extension of the first, as it is essentially Ms X complaining the Council has not carried out the remedies from the first complaint. Therefore, I am going to use my discretion to consider the second complaint alongside the first.

Foster carer allowance

32. The Council has already accepted that it should have assessed Ms X as a foster carer when Child Y came into her care.
33. It agrees with the findings from the previous stage three and the current stage 2. The Council has also recognised that it needs to backdate the payments for this.
34. I have seen no evidence the stage three panel decision making was flawed, and therefore I find no fault in how it reached its decision. The stage 3 found that Ms X should have been assessed as a foster carer. The stage two for the second complaint found the Council should have backdated the payments for foster care after the stage 3 panel found that Ms X should have been assessed. It also found that had the Council recognised Ms X as a foster carer sooner, it would not have transferred the case to another local authority.
35. I agree with the findings on both parts of this issue. The Council has accepted it should have assessed Ms X for the payments. As part of my investigation, I spoke to the Council about the issue of not remedying this part of the complaint despite it being upheld twice. Ms X has asked the Council to escalate to a further stage 3 as it is still not yet remedied. The Council confirmed to me there were issues progressing a new stage three because Ms X’s complaints have already been upheld and it is trying to decide how to remedy the injustice.
36. There is fault by the Council in failing to assess Ms X as a foster carer and failing to backdate the foster carer payments owed to her. There is further fault in the Council delaying doing this despite it agreeing that Ms X has been caused significant injustice. This has also prevented Ms X from being able to access the Adoption Support fund for support for Child Y. It has also meant that Child Y has not been provided with the extra support Looked After Children are granted.
37. The stage three panel also made service recommendations which the Council agreed to carry out. These were;

• All staff and mangers read, understand, and implement Derby Policy and Procedure regarding the placement of children with Family and Friends.
• That Staff reply to emails from family regarding perceived risks within five working days or sooner.
• That staff are transparent and work in a way that respects and upholds family members and children’s rights.
• Children Subject to a child protection plan are seen in the timescales outlined in the Derby Child Protection Procedures and that minutes are circulated within specified timescales.
• That named Social Workers and Managers should be interviewed and that reasonable steps should be taken to locate them.
• All staff and managers follow policy and procedures in terms of strategy discussions and referrals to the police.
• That referrals should be investigated even if the motivation maybe malicious.
• That cases are subjected to effective management oversight

38. I consider the service remedies recommended by the panel and accepted the Council to be the most suitable remedies for this part of the complaint.

Legal costs

39. Part of Ms X’s complaint is that the Council failed to take legal action and instead advised her to take it. This meant she incurred costs of over £40,000 seeking a child arrangement order.
40. The Council has offered to pay Ms X £3175 as this is what it believes the average costs are, and it cannot say for sure whether it would have pursued legal action.
41. The stage three panel makes clear the CAO order found that both parents did not have capacity to parent Child Y, and therefore Ms X was the suitable carer. It recommended the Council look favourably on Ms X’s request for repayment as the Council had likely made significant savings because of Ms X’s legal action to care for Child Y. The Councils reasoning of whether it would have taken legal proceedings or not is flawed. This is because the Court has already decided the parents do not have capacity to care for Child Y, and that Ms X should care for Child Y.
42. In the letter to Ms X after the stage three, the Council said it would offer Ms X £3175, as it had already paid her £24,000 for the costs of caring for Child Y. I asked the Council to explain the £24,000, to which it confirmed the figure was a mistake and it had not paid Ms X any money for caring for Child Y. The Council said this would not have changed its offer of £3175 towards legal fees.
43. The stage three panel recommended the Council look favourably on Ms X’s request for repayment, given the costs the Council has saved due to her taking the legal action. The court has upheld that Ms X should be the carer for Child Y. This action usually would have been instigated and paid for by the Council. I uphold the stage three panel’s findings. The Council has offered Ms X less than ten percent of the overall costs to her and I do not consider this to be a reasonable consideration of the panel’s recommendations given the findings.

Complaint handling

44. Part of Ms X’s complaint is the Council delayed responding to her complaint and remedying the injustice. This meant she had to start a new complaint.
45. The Council has already accepted there were delays in responding to Ms X’s complaint. During this investigation, it has also accepted that it has struggled to remedy the injustice to Ms X. The further delay by the Council has caused significant distress to Ms X when it has recognised she has incurred significant costs due to the actions of the Council.
46. I note that Ms X is retired and used the last of her life savings to pursue the CAO. It has caused her significant distress to be left unsure of how she will care for herself, her family and Child Y without the recognised support from the Council.

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Agreed action

47. Within 4 weeks the Council has agreed to carry out the recommendations from the most recent stage two which were;

• The Council should retroactively grant Looked After Child status for the period during which they were involved in the arrangements that saw Child Y leave the care of their mother and enter Ms X’s care. This would mean that Ms X would be eligible for financial support as a registered Foster Carer. It would also mean Child Y would be a Looked After Child would also retroactively grant Child Y ‘relevant child’ status.
• The Council should rescind any transfer of responsibility to any other LA, and Child Y may then be an ‘Eligible’ or ‘Relevant’ Child under Leaving Care regulations when she attains 18 years of age.
• As a LAC under the Council, Ms X could then be supported by the Council in her application for funds under the Adoption Support Fund for Child Y’s benefit, for which Child Y would be eligible due to her having been a LAC. The Council has agreed to assess Child Y for this and support her until three years after the SGO, meaning support in this element will end and transfer to Ms X’s local authority in September 2024. The Council has agreed to prioritise an assessment for Child Y to access the fund for the 2023/2024 year.

48. Within 4 weeks the Council has also agreed to

• Write to Ms X and apologise for the fault identified
• Pay Ms X for inflation on the backdated payments, which should be based on the yearly RPI from the time she had Child Y.
• Reimburse Ms X for her legal costs.
• Pay Ms X £1000 in recognition of the distress caused to her.
• The Council should also pay Ms X £250 in recognition of the time and trouble caused to her by the Councils actions.

49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I have now completed my investigation. I find fault with the Council for failing to properly consider the recommendations from the stage three review panel and the more recent stage two investigation.

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Investigator's decision on behalf of the Ombudsman