The Ombudsman's final decision:
Summary: The complainants alleged that the Council did not give them sufficient information about the financial implications of a private arrangement to care permanently for their grandchildren. There were also other complaints upheld by the Council. We found fault causing injustice. The Council has accepted the actions to remedy this. Therefore, we have completed our investigation and are closing the complaint.
- The complainants, who I refer to as Mr and Mrs X, agreed to care for their grandchildren (Child B and Child C) in April 2018 because the Council had child protection concerns about the parents’ care. Mr and Mrs X were initially regarded as family foster carers and paid a fostering allowance.
- The Council then advised that a Child Arrangement Order to Mr and Mrs X was the appropriate care plan, whereby they shared parental responsibility with the parents, while the Council assessed Mr and Mrs X for a Special Guardianship Order (SGO). The Court granted an interim Child Arrangement Order in November 2018.
- Mr and Mrs X made a series of complaints about the Council’s actions, prior to the children coming to live with them, and afterwards.
- The Council has investigated Mr and Mrs X’s complaints under the statutory Children Act 1989 complaint procedure (a three stage process), except for one complaint about whether the Council gave Mr and Mrs X sufficient information about the financial implications of the various care options. We have agreed to investigate this, referred to as complaint (c) later in this statement.
- The Council has upheld most of the complaints. But, the complainants are dissatisfied with the final outcome, with the remedy offered by the Council and are concerned that there is a systemic problem with the Council’s Children Services.
What I have investigated
- The Ombudsman cannot investigate the conduct of legal proceedings or consider complaints about data protection matters. I explain this more fully in the last paragraph of this statement.
The Ombudsman’s role and powers
- 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)
- 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)
- 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.
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
- 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)
How I considered this complaint
- The Council carried out a detailed independent investigation at Stage 2 of the Children Act 1989 statutory complaints procedure. The complainants were entitled to a Stage 3 Complaints Review Panel hearing (the Panel). The Council says this was offered to the complainants.
- By the time the complainants submitted the complaint to the Ombudsman, the Council considered it was too late to offer the complainants a Panel hearing and, in the interest of expediency, we agreed to investigate this complaint even though the statutory complaints procedure had not been completed.
- The Ombudsman does not re-investigate complaints, where there has already been an independent investigation, unless he considers that the independent investigation was flawed. Instead, we will look at whether a council properly considered the findings and recommendations of the independent investigation and whether the council has provided a suitable remedy.
- I am satisfied that there has been a thorough Stage 2 investigation. The Council concluded that the resulting injustice from the upheld complaints was avoidable distress, frustration and time and trouble. It has apologised to the complainants.
- The focus of this investigation is to consider any outstanding injustice to the complainants by the faults found and whether a further remedy is required. I will also consider complaint (c).
- Some of the events date back to 2018. However, we have exercised our discretion to investigate the complaint even though the complainants have not complained to us within 12 months of when they first realised something had gone wrong. This is because it was not until September 2019 when the complainants received the Council’s final response to their complaint.
- I have made enquiries of the Council and shared its response with the complainants except for confidential information concerning Child B and Child C’s time with their parents. I have also looked at Ofsted’s latest inspection of Children Services of March 2020.
- I issued a draft decision statement to the Council and to the complainant. I have taken into account their additional comments when reaching my final decision.
- 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 this decision with Ofsted.
Complaints considered by the Council
- As the Council has upheld most of the individual complaints, it is proportionate, for the purposes of this investigation, to group the complaints into the following main headings:
- That the Council:
- failed to give the complainants sufficient information between April and September 2018 about the concerns regarding the parents’ care and, had it done so, it might have been possible, with the complainants’ help, to ensure the children remained with their parents (Upheld);
- failed to offer appropriate care and support, when making decisions about Child B and Child C, while they were children in need and then in the care of the Council. In particular, the Council’s communication was poor, the purpose of various meetings was not made clear, reports and minutes of meetings were not shared in a timely manner, both before and after meetings, the complainants’ information requests were not responded to and there was a failure to brief colleagues (Upheld);
- failed to give the complainants sufficient information about the care options for the grandchildren. In particular, they were unaware of the financial and support implications of the different care options, to achieve permanency for the children, and they thought they had no choice but to follow the Council/Court’s recommendation for a private order, a Child Arrangement Order, in order to secure the grandchildren’s future with them. The complainants also say that they were not shown the reports initially provided to the Court (it is this complaint which has not been investigated by the Council);
- pursued unnecessarily a fostering assessment, and other actions, after the Child Arrangement Order was made (Upheld); and
- there were unnecessary delays in investigating their complaint at Stage 2 and the Council was unwilling to allow their complaint to progress to a Complaints Review Panel (Upheld).
- There was a second complaint, which the Head of Service considered, rather than it being investigated under the Children Act complaints process
- The complaints were broadly as follows (I have paraphrased them);
- Mr and Mrs X were told that there would be a period of transition [after the making of the Special Guardianship Order], but it was never intended that such a period would actually be observed (Partially Upheld);
- Mr and Mrs X were not told that there would be no child in need closing meeting (Partially Upheld);
- When Mr and Mrs X were invited to attend a Kinship Support Group, it was known that there was not one in their area, and they had not been updated, to see if there was a group now (Upheld);
- Mr and Mrs X were not told sooner that there would be no alternative social worker allocated after the conclusion of the legal proceedings (Upheld);
- Mr and Mrs X were given the wrong social work registration number for the social worker (Upheld);
- Mr and Mrs X were seeking an understanding as to whether the areas of concerns are isolated to them or a systemic failure, resulting in a lack of care and respect being shown to them. Mr and Mrs X had asked what steps have been taken to address the areas of concerns. (No finding was made).
What I found
Legal and administrative arrangements:
- Children are considered a ‘child in need’ if their development is likely to be impaired if services are not provided.
- Councils must make enquiries where a child is considered to be suffering or likely to suffer significant harm. It must decide whether protective action is needed under section 47 of the Children Act 1989. If it decides the child is at risk of significant harm the council must arrange a child protection conference to consider what needs to happen to protect the child.
- If the conference decides to place a child on a child protection plan, the council must arrange core meetings to monitor the child’s welfare.
- Councils have a duty, under section 20 (s20) of the Children Act 1989, to provide accommodation to any child in need in their area who requires it, as a result of: the person who has been caring for the child being prevented (whether or not permanently, and for whatever reason) from providing the child with suitable accommodation or care.
- The provision of accommodation under s20 does not remove the parent’s parental responsibility and a parent can ask for the child to be returned to their care at any time.
- The Police can also remove children, for up to 72 hours, to a safe place under a Police Protection Order, when they consider a child is at risk of harm.
- Under both s20 and a Police Protection Order, the child becomes known as a ‘looked after’ child and the council has specific duties to safeguard and promote the child’s welfare.
- A council can also apply, under s31, to a Family Court for an interim Care Order, whereby it would share the parental responsibility with the parents. The child becomes a looked after child. To obtain an interim Care Order, a council has to satisfy the Court that the threshold for intervention has been met and that there is evidence of significant harm caused by the parents’ care.
Family and friends foster carers
- When a child in need requires to be accommodated by a council, the law says the council must first consider placing them with family or friends. The relatives must be suitable and able to provide appropriate care.
- If the council needs to place a child urgently it may not have time to approve the connected person as a foster carer before placement. In these circumstances, Regulation 24 of the Care Planning, Placement and Case Review (England) Regulations 2010 allows the Council to immediately approve the connected person as a foster carer for a maximum period of sixteen weeks. This allows time for the Council to complete the foster carer assessment and approval process.
- If the carer becomes a family and friends foster carer (or sometimes referred to as kinship carers), they are entitled to receive a fostering allowance and other practical support for them and the child from the council. The fostering allowance is provided to cover the cost of caring for the child.
- Statutory guidance, and case law, says that family and friends foster carers must be paid the same fostering allowance rate as professional, unrelated foster carers (minus any professional fostering fee). The council can also deduct an amount equivalent to child benefit and child tax credit if the carer receives these.
Private family arrangements
- A private, or informal, family arrangement happens when a close relative has agreed with the parent to take on the care of the child.
- This private arrangement could be confirmed in court in a private law order called a Child Arrangement Order. A Child Arrangement Order sets out with whom the child should live, spend time or other contact arrangements and gives the holder of the Order parental responsibility for the child, shared equally with the parents. Under this arrangement there is no right to any financial support from the council although councils have discretion to provide financial assistance, if it is considered necessary.
- The Adoption and Children Act 2002 came into force in December 2005. It provided a new legal status, Special Guardianship Orders, for non-parents who wished to care for children in a long term, secure placement.
- A Special Guardianship Order (SGO) granted by a Court, gives the special guardian parental responsibility for a child who is not their own. It does not entirely remove the parental responsibility of the birth parent but limits it. Special guardians may be entitled to a financial allowance from the council, subject to a means test and in accordance with the council’s policy. Children, subject to a SGO, are no longer looked after children.
- The SGO Regulations and Guidance 2005 and 2016 sets out the possible support services, which can be provided, including counselling, advice, information and financial support. The then Department of Education and Skills (DfES) produced a suggested model means test for adoption and SGO financial support payments.
- The statutory guidance says councils must have policies explaining how family and friends carers are made aware of the eligibility criteria for financial support and, when means testing applies, how to apply for any such financial help, and how and when decisions are made about eligibility.
Relevant case law
- If the council is facilitating a private law arrangement, the Court has said councils must make clear to all parties that those holding parental responsibility for the child would continue to be responsible for the financial arrangements to care for the child (London Borough of Southwark v D  EWCA Civ 182)
The Ombudsman’s Focus Report on Family Carers
- In December 2013, the Ombudsman issued a focus report about family carers. The Ombudsman highlighted certain key issues as follows: Has the council published a clear policy on family and friends’ carers? Are the rates to carers being paid in accordance with statutory guidance? Are timely checks being made on family and friends’ carers to ensure the suitability of the placement?
- The Ombudsman made several recommendations to promote good practice. One recommendation is that, where a council has had involvement with the child’s family before that child came to live with a family member, the council should be able to show it has explained to the carer the implications of agreeing to a family care arrangement, rather than becoming a family and friends foster carer.
- The Council had child protection concerns about the parents’ care of Child B and Child C. Mr and Mrs X had been providing informal help during this period.
- The Council held an initial child protection case conference in April 2018, and the children were made subject to child protection plans. After this, there were some core and other meetings, some of which Mrs X attended.
- The Council upheld the complaint that the complainants were not given enough information to provide sufficient help to the parents. While confidential information could not be shared with them, the Council stated that this should not have stopped staff from encouraging the parents to involve the complainants in the plans for the children.
Events since September 2018
- In September 2018, the Police used their protective powers and had to remove the children from the parents’ care. At this point, the Council sought the parents’ consent to place the children in s20 accommodation, to which they agreed. It was then agreed that Child B and Child C should be placed with Mr and Mrs X.
- The Council agreed to pay them a family fostering allowance. The children at this stage were regarded as ‘looked after’ children.
- On 27 September, there was a planning meeting, which Mrs X attended. There was a discussion about Mr and Mrs X obtaining a SGO. Mrs X says that the Council never provided written information to them about the varying care options, and the financial implications, to achieve permanency for the children.
- There was a statutory child review held on 11 October 2018. At this meeting, the Council explained it was planning to seek an interim Child Arrangement Order rather than an interim Care Order.
- On 19 October, Mrs X followed up this meeting by email with a series of questions, asking, in particular, why the Council was seeking a Child Arrangement Order and asking: “what the benefits are to (i) Social Services (ii) the parents (iii) the carers for a Child Arrangement Order rather than an interim Care Order?”. On 24 October, the kinship social worker discussed with Mrs X the difference between an interim Child Arrangement Order and an interim Care Order, saying:
“the latter gives applicant’s greater legal rights because it stipulates where [Child B and Child C] lives. [Mr & Mrs X] to discuss with the social worker for further information.
- The kinship social worker noted that Mr and Mrs X were hopeful the children could return to the parents’ care and that they knew that they would not be entitled to a SGO allowance.
- The kinship social worker recorded that Mr and Mrs X understood the requirements of a Reg 24 fostering assessment. It was explained that this was similar to a SGO assessment.
- The Council says that the case notes demonstrate that Mr and Mrs X were aware of the differing financial implications of the differing orders. Mr and Mrs X dispute this.
- The Council noted: “Financial - cannot understand why they cannot be supported under foster carer rules. Explained this will be dependent upon SC's (SW’s) plan for children and in general young children need permanence and right to family life, which would not be conducive under a Care Order. Applicants have legal advise and will raise their concerns with their solicitor”.
- The Council started legal proceedings under s31 in the Family Court. The Council says that it applied for an interim Child Arrangement Order, rather than an interim Care Order, to safeguard the children. The Court appointed a Guardian to advise about Child B and Child C’s best long-term interests.
- In November, Mr and Mrs X attended the first Court hearing with a solicitor, as did the parents. The Council’s notes state that all parties agreed that there should be an interim Child Arrangement Order to Mr and Mrs X.
- The Court joined Mr and Mrs X as parties to the proceedings (meaning that they were entitled to the information and have a say in the proceedings) and it instructed the Council to provide their solicitor a paginated bundle of the documents in the case. The Court also instructed the Council to complete a SGO assessment of Mr and Mrs X by February 2019.
- At Court, there were also discussions about the parents’ contact with Child B and Child C over the next months and there was an agreement reached that this had to be supervised.
- The Court made an interim Child Arrangement Order to Mr and Mrs X. At this point, Child B and Child C were no longer looked after children. They were children in need.
Events of 2019
- The Council told the complainants that the Fostering Panel would need to assess them. The fostering assessment continued, including making Police checks on other family members. The Council also played a part in determining the contact, which could take place, between Child B and Child C and their parents.
- As there was a Child Arrangement Order, the Council accepts that this fostering assessment was unnecessary, and it had no remit to give directions regarding contact arrangements.
- In February 2019, when the Council realised this, the Council stopped the fostering allowance as Mr and Mrs X were not entitled to this.
- In July 2019, the Court made a SGO to Mr and Mrs X. They were aware that they would not be entitled to a SGO allowance.
The Council’s comments
- The Council has said that there was nothing provided in writing to the complainants about the varying care options, and their financial implications, to achieve permanency for their grandchildren.
- The Council does now have written information, available to prospective carers, about the different care options and the financial implications.
- The Council says that its Connected Persons Team have also been instructed to talk through the care options with prospective carers, at an early stage, so that they can make informed decisions.
Mr and Mrs X’s comments
- Mr and Mrs X say that they were not told of the financial implications of an interim Child Arrangement Order as opposed to an interim Care Order, even though they asked specific questions about the advantages and disadvantages of both.
- Mr and Mrs X say: “We were made aware, at some point during proceedings, that any funding with an SGO would be means tested and that, due to us having savings, we would not be eligible for this funding. At no stage, during any meetings or correspondence, were we informed that there should be no funding under an interim CAO [Child Arrangement Order] - indeed, we continued to be paid the foster carer allowance through to February 2019, when we were wrongly invited to attend the foster panel hearing and the panel advisor flagged not only that we should not have been going through the foster carer process but also that the foster carer payments should have ceased with effect from the interim CAO being granted on XX November 2018, and that the payments would, he thought, cease very quickly after the panel hearing - they did… “
- The Council has found fault on the majority of Mr and Mrs X’s complaints. I accept those findings, including those which are partially upheld.
- There was one complaint, where there was no finding, and that was whether this complaint demonstrates a systemic failure in Children Services. The Ombudsman can consider whether there is evidence of a service failure or whether there may be others who have suffered an injustice as a result of faults found.
- In this case, I have looked at the Children Services complaints, which we have investigated over the past two years. This does not demonstrate a systemic failure, but this is very limited information to make any finding on this aspect of the complaint. So, like the Stage 2 investigator, it is not possible for me to make a finding. However, Ofsted inspects councils, and my view is that this is the best agency to make general findings of this nature in this particular case.
Complaint (c): lack of information about the financial implications of the care options
- I have not seen any evidence that Mr and Mrs X were told, in writing, or verbally, about the specific financial implications of a Child Arrangement Order and, significantly, that they would lose their fostering allowance. The Ombudsman’s advice to councils is that there should be clear written information for family carers and, failing that, a clear written record of what they had been told about the varying care options. This is so family carers can make informed decisions.
- It is also the case that the Council itself was unclear about the financial arrangements for Mr and Mrs X once the interim Child Arrangement Order was made. Hence the Council continued to pay them a fostering allowance until February 2019, and it became involved in the contact arrangements. This led to Mr and Mrs X thinking that this arrangement, and their allowance, would continue until the SGO was granted.
- On the other hand, the complainants had legal advice and were a party to the legal proceedings and attended the hearing when the Court made the interim Child Arrangement Order. Their solicitor had some responsibility to ensure Mr and Mrs X were fully aware of the financial implications of them agreeing to an interim Child Arrangement Order. But, I am mindful that, at this time, Mr and Mrs X may have been hoping the children could return to the parents and therefore an interim Child Arrangement Order had some benefit in this respect.
- In respect of complaint (c), I find the Council has been at fault.
- In respect of complaints (a), (b), (d) and (e) and matters in the second complaint, the injustice to Mr and Mrs X is, as stated by the Council: avoidable distress, frustration and time and trouble.
- The impact is accumulative over a prolonged period. Mr and Mrs X were trying to ensure the best interests of Child B and Child C were met and they made this their priority. They were taking on a significant responsibility at a time when they might have had other plans for their future. The Council’s faults made this situation more difficult for them than it might have been.
- I cannot say, though, whether involving Mr and Mrs X more, prior to the children being removed by the Police, would have altered the course of events. Rather it was a missed opportunity, as recognised by the Council, for them to have made some positive changes to enable the children to remain with their parents. Mr and Mrs X will no doubt be left wondering whether, but for the Council’s earlier faults, they could have made a positive difference to prevent the children coming to live with them.
- In respect of complaint (c), Mr and Mrs X say that, if they had been told their fostering allowance would cease once an interim Child Arrangement Order was made, they would have asked for an interim Care Order to secure this allowance until a SGO was made.
- However, it would have been for the Court to decide this and whether the threshold criteria for a Care Order was met. So, I cannot say that this would have been the legal outcome, even if Mr and Mrs X had requested this.
- I am also mindful that the complainants had legal advice when the interim Child Arrangement Order was made.
- Equally there is some evidence that the Council did not properly explain to them the financial implications of the two possible Orders open to the Court to make. And it did not explain that the parents retained financial responsibility for the grandchildren under an interim Child Arrangement Order.
- There is some resulting injustice to Mr and Mrs X by not having accurate and clear information even if I cannot say what might have happened differently, but for this fault.
- The Council has apologised for the avoidable distress. But I consider that this is not sufficient remedy.
- Where there has been avoidable distress and time and trouble, the Ombudsman’s recommendation to remedy such injustice is symbolic and payments are normally between £300 to £1,000 depending on the severity of the injustice, the vulnerability of those affected and whether the injustice is over a prolonged period. However, there is discretion to recommend a higher amount where the injustice is severe and/or prolonged.
- In this case, the injustice was over an extended period and Mr and Mrs X took on a significant responsibility, without all the necessary information, in the best interests of their grandchildren. Therefore, I consider the payment should be at the higher end of the Ombudsman’s normal tariff.
- So, in respect of the injustice caused by the complaints upheld by the Council, it will within six weeks of the date of the final statement:
- Apologise again to Mr and Mrs X for its errors and make a payment of £750.
- I have found fault causing an injustice. But the Council has agreed the recommended actions and therefore I am closing the complaint.
Parts of the complaint that I did not investigate
- The Court made the decision to make an interim Child Arrangement Order, so I cannot consider the events at Court which led to that decision. I have also not investigated Mr and Mrs X’s complaints about data errors because they can pursue a complaint to the Information Commissioner.
Investigator's decision on behalf of the Ombudsman