Summary: The complainant alleges that the Council has failed to offer appropriate help to her when caring for her nephew. The Ombudsman does not find fault with the Council’s actions. Therefore, he has completed his investigation and will close the complaint.

The complaint

1. The complainant, who I refer to as Mrs X, complains that the Council has failed to consider properly her request for financial and other assistance in caring for her nephew, (Child B). Mrs X’s parents have parental responsibility for Child B and gained this when Child B lived in another council area, Council C. It was never their intention to care for Child B long-term because they are/were elderly and frail.
2. In 2013, Child B came to live with Mrs X. Parental responsibility remained with her parents even though she has the day to day care of Child B. Mrs X says that this is because she considers Council C, or this Council, should regard her as a family foster carer whereby she would be entitled to financial support. Mrs X says that, because of Child B’s significant difficulties, she cannot work and is struggling financially. She is also a single parent.
3. Mrs X says that the Council appears to be unconcerned that she does not have parental responsibility for Child B (despite Child B having been with her for many years) and that the Council remains unwilling to offer any financial support for her to resolve this or to support Child B.
4. Mrs X says that, because of the Council’s alleged faults, she has suffered avoidable distress and loss of financial support and Child B is missing out on the support he requires.

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What I have investigated

5. I am investigating Mrs X’s complaint that the Council has not provided sufficient support or considered her as a family foster carer. However, I am only looking at events from 2018. I explain why in the last paragraph of this statement.
6. Mrs X also has a complaint against Council C that it did not take Child B into care and place him with relatives. Had it done so, Mrs X would be entitled to financial support from Council C. We are investigating this complaint.
7. Mrs X also complained about the delay in completing Child B’s Education, Health and Care (EHC) Plan. But it was agreed that the Council had not had an opportunity to consider this complaint. So, we referred this back to the Council for investigation. While Mrs X has raised some concern about the EHC Plan process within this investigation, I am not considering these. Mrs X would need to make a fresh complaint to the Ombudsman once the Council has completed its investigation.
8. Any complaints Mrs X has about the social workers’ professional practice should be referred to Social Work England who is responsible for ensuring social workers meet professional standards.

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The Ombudsman’s role and powers

9. 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)
10. 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)
11. 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)

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How I considered this complaint

12. I have made enquiries of the Council and considered its response. I have spoken on the telephone to Mrs X and she too has provided written information.
13. I issued a draft decision statement to Mrs X and to the Council and have taken into account their additional comments when reaching my final decision.
14. 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.

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What I found

Legal and administrative arrangements:

15. Children are considered a ‘child in need’ if their development is likely to be impaired if services are not provided. Children with disabilities are automatically regarded as a child in need.
16. Parents/carers can apply for an Education, Health and Care (EHC) Plan to enable a disabled child to receive specific support in managing their special educational needs and difficulties.
17. Where there are concerns about a child’s welfare, the family can make their own arrangement to protect the child without involvement from a council. In these circumstances family members often seek a private legal order, a Child Arrangement Order (previously called a Residence Order), from the family court so that they can legally care for the child and have the day to day care. Parents still retain their parental responsibility.
18. Where a council has concerns about a parent’s care of their child, it can place the child on a child protection plan so that it can monitor the parent’s care. Alternatively, the council might need to remove the child from the parent and place him/her in foster care. The child is then regarded as a ‘looked after’ child
19. The council has a duty to consider placing looked after children with family members, wherever possible. If a council does so, family members will normally receive the full fostering allowance, similar to that paid to councils’ own foster carers. These carers are often referred to as family or kinship carers.

Special Guardianship Orders (SGOs)

20. The Adoption and Children Act 2002 came into force in December 2005. It provided a new legal status, SGOs, for non-parents who wished to care for children in a long term, secure placement.
21. A 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. Courts can make a Supervision Order, alongside a SGO, where it considers it is necessary to ensure appropriate support from the council for the special guardian and child.
22. Councils have to carry out an assessment of those wishing to become special guardians to ensure they would be suitable long-term carers for the child.
23. Financial support for special guardians is means tested and is not guaranteed. As well as regular financial support, financial assistance can be given for legal costs and to meet the child’s therapeutic needs. Councils can also give assistance for the purpose of ensuring the continuance of the relationship between the child and the special guardian including training, mediation and respite.
24. Councils can pay an allowance where:

• It is necessary to ensure the special guardian can look after the child;
• Where the child “needs special care which requires a greater expenditure of resources than would otherwise be the case because of illness, disability, emotional or behavioural difficulties or the consequences of past abuse or neglect”.

25. The SGO guidance says that, in determining the amount of ongoing financial support, a council should “have regard to” the amount of fostering allowance that would have been payable if the child were fostered. Any means test should use this maximum payment as a basis for calculation.
26. The Council has a policy about how it assesses special guardians for financial assistance.

Background events

27. Child B’s mother had difficulties in caring for him because of her disabilities. She was also terminally ill. Mrs X’s parents were very concerned about the parents’ care as was Council C, who had placed Child B on a child protection plan.
28. Council C considered the care of Child B had not improved and he was at risk. Mrs X says that it approached her parents to ask them to look after Child B, otherwise it said that he would have to go into care and be adopted. Mrs X says Council C told her parents that Child B was very ‘adoptable’.
29. Mrs X says that Council C insisted her parents apply for a Residence Order to secure Child B’s placement with them, which they did, at considerable financial costs to themselves. Council C also insisted that her parents apply for a Prohibited Steps Order to prevent Child B’s father absconding with him.
30. Mrs X says that she started building work to extend her property so that she could accommodate Child B eventually.
31. Mrs X’s parents’ health deteriorated, and Mrs X says that they could no longer care for Child B fulltime. In 2013, he came to live with Mrs X, although Child B may sometimes stay with them in the school holidays. Mrs X’s parents still have a Residence Order and therefore are legally responsible for him.
32. Child B’s father also still has parental responsibility although he has no contact or involvement in his life.
33. In 2018, Child B’s mother died.

Key events of this complaint

34. The Council says that it first became aware of Mrs X and Child B in mid-2018, when she approached it for financial help and with managing Child B’s difficult behaviours. Mrs X says that she contacted the Council in early 2013, before Child B came to live with her, and also in 2017.
35. In October and November 2018, a social worker visited Mrs X and Child B, to carry out a children and family assessment. This assessment identified no safeguarding concerns. The Council says that Mrs X was signposted to its Short Break scheme to enable her to explore the possibility of having a break from her caring role. The Council says that this can amount to 40 hours per year.
36. The Council says that the issue of parental responsibility was discussed with Mrs X and she was advised to seek legal advice. The social worker referred the case to the Council’s Friends and Family Team. The Council recognised that Child B was a child in need.
37. The Friends and Family Team clarified that, if Mrs X applied and obtained a SGO, it would assess her for a SG allowance. But this would be means tested and there was no guarantee that she would receive this. The Council also explained that she might be eligible for additional benefits, if she had a SGO.
38. Mrs X was told that the Council could not regard her as a family foster carer because Child B had not been a looked after child and the family had made its own private arrangements for his care. Mrs X explained that the placement of Child B with the family was not a private family arrangement. It was in response to Council C’s concerns about the parents’ care.
39. Mrs X says that she expected the Council to contact Council C to discuss the fact that she considered she should be viewed as a family foster carer, in an effort to help and support her. But it did not.
40. The Council says that the case remained open because it was expecting Mrs X to apply for a SGO, and it would then be required by the Court to carry out an assessment.
41. In December 2018, the Council’s Educational Psychologist completed a report on Child B’s possible special educational needs.
42. In April 2019, the Council contacted Mrs X because it had not heard from her and it considered it needed to do a welfare check. Mrs X says that she was not told specifically that this intended visit was a ‘welfare’ check.
43. Mrs X explained to the social worker by email that it was not convenient for her to visit because she was in the process of carrying out building work to the house so that she had an extension to accommodate Child B. She explained that, when the social worker visited in September 2018, it would have been clear that the house required a considerable amount of work to make it more habitable. But the Council had been unwilling to help her.
44. Mrs X told the Council that she had followed advice and obtained some legal advice. But this had cost her. She explained that she would not be applying for a SGO, when she knew other people, in her position, who had taken care of relatives’ children because of child protection concerns but who were receiving kinship payments. She raised a concern that the Council appeared unperturbed by the fact that she did not have parental responsibility for Child B. Yet she was caring for him fulltime.
45. In June 2019, Child B’s school contacted the Council because it had learnt that he had gone to stay with Mrs X’s parents. Mrs X says that, in September 2019, she had sent Child B to stay with her parents because she was concerned about the Council visiting her. She had told the Council this.
46. The Council says it contacted Mrs X’s parents and there were no concerns about their care of Child B. Mrs X says that the Council told her parents that, if either they or Mrs X could no longer care for Child B, it might be possible for Child B’s father to care for him. Mrs X says that her parents were very distressed by this because they knew Child B’s father was not capable of meeting Child B’s needs.
47. Child B was referred by the Community Paediatric Service for a specialist assessment of his neurodevelopment needs. Child B now has a formal diagnosis of autism, Foetal Alcohol Syndrome Disorder (FASD, caused by heavy drinking during pregnancy), Attention Deficient Hyperactivity Disorder (ADHD) and attachment difficulties, caused by early neglect.
48. Child B has a final EHC Plan which the Council issued in August 2020. He is open to the Council’s Special Educational Needs Team.
49. Mrs X says that, when her parents and she subsequently agreed to look after Child B, they were unaware of his special educational and medical needs. She considers that these should have been picked up sooner.

Mrs X’s complaint to the Council

50. Mrs X complained to the Council about its lack of help and, in September 2019, the Council told her that its complaints procedures could not change the legal status of Child B to enable her to be regarded as a family foster carer. The Council says it cannot do so because Child B was not a child looked after by the previous council, (Council C), and because the family had made its own private arrangements to care for Child B.
51. In response to the complaint to the Ombudsman, the Council has recognised that it is unsatisfactory for Mrs X to care for Child B without legally having parental responsibility. It has agreed that, if Mrs X made an application for a SGO, which was successful, it would consider funding the cost of making the application to the Court. But it will not cover any legal costs because the Council does not consider legal assistance is necessary.
52. However, if Mrs X would like legal advice before she applies for a SGO, the Council has offered £150 one-off payment for this, as long as Mrs X applies for a SGO and there is a positive outcome.
53. Mrs X says that this is not sufficient. Mrs X says she is struggling, at times, to manage Child B’s behaviours, and she says that she cannot work because of the demands on her by his needs. She is also awaiting an operation. She says that she has also had to adapt her house to accommodate Child B and her daughter.
54. Mrs X says that: “I have struggled with this arrangement; it has been stressful, especially when my sister was alive. I return my nephew to his grandparents at considerable cost as it’s a 300-mile round trip. I did this so I could get some time alone with my own daughter and some respite”.
     

Analysis

55. It is clear Child B has significant difficulties, of which Mrs X would not have been aware of fully when she agreed to care for him in 2013. She considers that both this Council and Council C have let her down in not providing any financial assistance to her, or previously to her parents when, but for their involvement, Child B would have had to be taken into care, at considerable cost to the Council C.
56. It is the case that Child B’s family have stepped in to care for him and this has prevented the need for him to be cared for by foster carers. I can understand why she considers that, in these circumstances, she should be receiving financial support. But the Council is right in explaining that it cannot now change Child B’s legal status. Mrs X’s parents have the parental responsibility and there is an arrangement between them and Mrs X about how that will be exercised.
57. Moreover, while it would be more appropriate for Mrs X to have the current situation regularised, it would appear that Mrs X and her parents have managed to overcome any possible obstacles, to date, which this situation might present.
58. Alternatively, Mrs X’s parents could apply to discharge the Residence Order so that parental responsibility can be legally passed to Mrs X.
59. Mrs X understandably considers that she should be regarded as a family foster care and she has reasons for believing this. However, this is/was a matter for Council C and Mrs X’s comments about the circumstances, when Child B came to live with her parents, are relevant to our investigation into Council C’s actions. My view is that Council C was the responsible authority, at this time, and Mrs X’s concern that he should have been regarded as a looked after child are only relevant to Council C.
60. The Council could have discussed the situation with Council C, as Mrs X believes should have happened. But, even if it had, I do not consider this would have changed the Council’s position. The Council cannot challenge Council C’s decisions in the way Mrs X would like.
61. Moreover, the Council has explained that she could apply for a SGO in order to obtain parental responsibility and regularise the situation. Once this application is made, the Court would manage it and issue directions. It seems likely Mrs X’s parents would agree to her having a SGO.
62. The Court would have to seek Child B’s father’s views, if he can be found. The Court would have to consider his views. But I do not consider this in itself is a sufficient concern which should prevent Mrs X making a SGO application. The Council would be asked by the Court to carry out an assessment and Mrs X could ask for consideration and a decision about a SGO allowance at this point.
63. Mrs X has raised a concern about what the Council will offer her in terms of financial support for legal advice, and whether she would be entitled to a SGO allowance. I am not in a position to comment as Mrs X’s concerns are speculative at this stage. Mrs X could however ask the Council’s Friends and Family Team to explain to her how its means test for a SGO allowance is calculated. Mrs X could then make a more informed decision about whether to apply for a SGO.
64. Further, if Mrs X did apply for a SGO, and she had concerns about the Council’s actions and support offered, she could make a fresh complaint to the Ombudsman after the Council had considered such a complaint.
65. Accordingly, I do not find the Council has been at fault in the advice it has given to Mrs X. There is a way for Mrs X to regularise her position with regards to Child B. But this is a choice for her and her parents to make. The Council also cannot now regard her as a family foster carer.
66. The Council also carried out an assessment and it appropriately signposted Mrs X to the Friends and Family Team.
67. I consider that the Council has offered some support, particularly in recognising Child B’s extensive needs and issuing an EHC Plan. Now that Child B has such a Plan, the Council has a duty to provide for Child B in accordance with the specified provision (educational, health and social care) set out in his Plan. Under the Plan, Child B will have annual reviews to ensure the support is appropriate to his needs. This is an important safeguard for Child B and will assist Mrs X in caring for him and ensuring he receives appropriate education, and she receives support.
68. As highlighted, the substantive issue is about Council C’s actions when Child B required protection, and this is a matter under investigation by the Ombudsman. Whatever decision is reached on the complaint against Council C, it may however have implications for Mrs X’s current situation.

Final decision

69. While understanding Mrs X’s concern that she does not have parental responsibility for Child B, I do not consider that there has been fault by the Council in the advice it has given Mrs X or in its unwillingness to regard her as a family foster carer. It has also carried out an assessment and it referred Mrs X to the Friends and Family Team.
70. I recognise that Mrs X is dissatisfied with the advice and support provided. But that is not a sign of fault by the Council.
71. I have therefore completed my investigation and I am closing the complaint.

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Parts of the complaint that I did not investigate

72. I have not investigated any complaint about alleged delays in the EHC Plan process because the Council is considering this first. It is open to Mrs X to submit a fresh complaint to the Ombudsman if she is dissatisfied with the Council’s final complaint response.
73. I have not investigated Mrs X’s complaint about her contacting the Council in 2013, before Child B came to live with her. This is because this event occurred too long ago, and it would not be possible to carry out a meaningful investigation.
74. I am not looking into Mrs X’s comment that she contacted the Council in 2017 for the same reasons.
75. Mrs X’s concerns about the actions of a particular social worker is a matter which she can refer to Social Work England. Social Work England is the regulatory body for social workers and it will consider fitness to practice complaints.

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Investigator's decision on behalf of the Ombudsman