Summary: Mrs C says the Council went back on an agreement to assist with the care of her nephew, X, by paying fostering fees after it promised it would do so. She says this has caused her injustice in that she has incurred great expense and suffered stress. The Council denied it had made this agreement. The Council was at fault: The Council encouraged Mrs C to take care of X and said it would pay her. It has agreed to pay her backdated fostering fees.

The complaint

1. The complainant, who I have called Mrs C, says the Council is at fault for breaking an agreement to provide funding if she looked after her nephew, X,
2. Mrs C says this has caused her family injustice. She had to take a lower paid job to look after X. X has behavioural problems which have upset her own children. They have incurred expenses taking X for hospital visits locally and in London.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
5. Under the information sharing agreement between the Local Government Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
6. 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)

Back to top

How I considered this complaint

7. I spoke to Mrs C. I wrote an enquiry letter to the Council. I considered the evidence I had gathered and any relevant law and guidance. In particular, I looked at the provisions of the Children Act 1989, regarding children in need and looked after children and the leading case on the subject, Southwark v D [2007] EWCA Civ 182.
8. Mrs C and the Council had an opportunity to comment on my draft decision. Both accepted the decision as it was.

Back to top

What I found

What should happen

9. Councils have a range of powers and duties in respect of children in their areas. They have a power to provide assistance, including financial assistance, for children and their families and a duty to provide accommodation and financial support in respect of some children who appear to need accommodation.
10. Section 20 of the Children Act 1989 says councils should provide accommodation to any child in need within their area who needs it, for example because the person who has been caring for them cannot provide suitable accommodation or care. A child provided accommodation under s.20 is called a ‘looked after child’. They can be accommodated in a home or by foster carers.

Family and friends carers

11. When a child needs to be accommodated, the law says councils should consider placing them with family or friends first. Family and friends foster carers can receive a fostering allowance and other practical support from the council.
12. The Council refers to such carers as “connected persons”. Its Placement with Connected Persons Policy says a child may be placed with a connected person before that person has been approved as a foster carer, as long as the Council is satisfied the placement is the most suitable means to safeguard and promote the child's welfare.
13. Where placement with a connected person appears suitable and is approved by the nominated officer, a written placement agreement should be completed by the child's social worker with the proposed carer. If the placement is to last longer than 16 weeks, a fostering assessment should start as soon as possible. The Council’s website says fostering assessments should take 16 weeks to complete.

Private family arrangements

14. Councils need to distinguish between arrangements in which the child is accommodated under the Children Act 1989 and so is a looked after child, and private arrangements made between parents and other family members. If the child lives with a close family member because of a private arrangement between the parents and relative, the parents remain responsible for financial support for the child and the carer is not automatically entitled to support from the council.
15. The courts have said that where a council has taken a major role in arranging for the relative to care for the child, it is likely to have been acting under its duties to provide the child with accommodation, rather than it being a private family arrangement. For a council to “side-step” its duty to accommodate the child, it must have given the carer enough information to allow them to give their informed consent to accepting a child under a private family arrangement. In particular, 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. (London Borough of Southwark v D [2007] EWCA Civ 182)
16. In 2013, we 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 family and friends. 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.

The Council’s policy

17. The Council’s Family and Friends Care Policy says there are various different ways for children to live with relatives.
1. Informal care by a relative. This is where a child lives with a close relative. There is no need to notify children’s services. Parents retain parental responsibility and are responsible for supporting the arrangement financially. They can claim child benefit and child tax credit, if eligible, if the parents are not doing so.
2. Private fostering. Where a child lives with a relative or friend other than a close relative. If it is to continue for more than 28 days, parents and carers must contact the Council. The Council will not approve them but must be satisfied that each individual child’s welfare will be satisfactorily safeguarded and promoted. Parents retain responsibility. Carers can claim benefits if not claimed by the parents.
3. Looked after children. ‘Sometimes, it is not safe or simply not possible for a child to remain living with their parents and they come into the care of the local authority and become ‘looked after’. When it appears necessary for a child to become looked after…the local authority has a duty to consider whether they could live with friends or family.
   
   ‘If the local authority has decided that a child must live away from home, whether temporarily or for a longer period, the child would become looked after at that point…placement with family or friend can often provide a way of ensuring the child's protection whilst keeping them with people they know.
   
   ‘Some children are looked after but unable to return home, perhaps because parents were unable to make the required changes to ensure their safety or welfare. Here again, family or friends can often step in to offer a suitable alternative.
   
   In both sets of circumstances, because the child is looked after, the carers would have to be assessed as foster carers. This is an important way of ensuring that they will be able to provide the care and support, the child requires and is called ‘kinship foster care’.
4. Kinship Foster care. In all cases, assessment is required of the suitability of the carer to take on the care of the child. This can take months so is often split into two parts. An initial ‘connected persons’ assessment followed by a full fostering assessment.

Special Guardianship Order

18. A Special Guardianship Order, (‘SGO’) is a legal alternative to adoption created with older children who did not want to cut all links with their parents in mind. The government’s guidance says they are intended to:
• Give the carer clear responsibility for all aspects of caring for the child. This means that the child will no longer be a ‘looked after child’.
• Provide a firm foundation for a lifelong permanent relationship between the child and the carer.
• Be legally secure.
• Preserve the link between the child and their parents.
• Be accompanied by a full range of services including, where appropriate financial support.
19. Any assistance provided to special guardians is discretionary and means-tested.

Child Arrangements Order

20. A Child Arrangements Order (CAO) is an order made by the court which states where a child should live and with whom, how much time they should spend with each parent and contact times and details. They have replaced contacts orders and residence orders.

What happened

Background

21. X grew up in the Council’s area. He required life-saving surgery as a baby. Mrs C is X’s aunt. She is X’s father’s sister. When X was younger, he had stayed with Mr and Mrs C for a week each summer but, in later years the family had lost touch with X and his parents.
22. X’s parents separated a few years before these events and had fallen out of touch with each other as well as the family. Both parents have chaotic lifestyles. After the separation, X lived with his mother. In the year before the relevant events, she was evicted from her home twice. She became the victim of domestic abuse from a boyfriend. X did not have his own bedroom and, by mid-2017, he and his mother were ‘sofa surfing’ with friends some of whom were known drug users and dealers. X was having problems at school linked to his situation.
23. In late 2017, X’s grandparents decided they could no longer allow him to live with his mother. They informed the Council and took him in. The Council was happy with this arrangement. However, X’s behavioural problems did not immediately stop and, within a few months, the grandparents found that they were unable to cope. They told the Council that it might be better if he went into care.
24. The Council assessed the situation and found that X could not live with either parent. Indeed, they were unable to find X’s mother who had left the area without telling anyone where she was going.
25. A legal planning minute written in late March 2018 stated ‘the threshold to issue proceedings is met in this matter. The child would be likely to suffer significant harm if returned to the parents’ care. The child has previously suffered emotional harm while in the care of the mother’.
26. At a unit meeting in May the Council decided to complete a viability assessment of X’s grandmother seeking a Special Guardianship Order (‘SGO’) an SGO (in full) and also to undertake a viability assessment about the possibility of asking Mrs C to take over.
27. The Council called a Family Network meeting for a date in July 2018. Mrs C says she was invited about a week beforehand.
28. At the meeting, Mr and Mrs C say, the two Council employees present said that they were there to look for somewhere for X to live. They said that, if no one would put him up, he would be adopted or fostered. He might go to the Midlands or Scotland and, in all likelihood, none of the family would ever see him again.
29. Mrs C says she and Mr C made it very clear they would be happy to take X in but they had debts and five other children so could only do so if they received financial assistance and support to deal with X’s problems. Mrs C says that both Council officers present, Officer O, a clinician, and Officer P, a social worker, said that this would be arranged. She said that, having received that assurance, she said that she would be able to take care of X.
30. The Council carried out a viability assessment which found that Mr and Mrs C were suitable carers for X. Shortly thereafter, X went to live with them and remains there. He has his own bedroom. His school performance has improved greatly. He says he wants to continue to live with them.
31. Mrs C says that the offers of financial assistance were repeated after the meeting for two weeks before Officer O put a proposal to her manager at which point, all talk of financial assistance ceased. Mr and Mrs C complained, from the beginning, that the Council had gone back on its word.
32. Since then, Mrs C says she has had to give up her job and take a worse-paying one with fewer hours to provide the extra care X needs. The family has also paid money to deal with X’s behavioural and medical needs.

Stage 1 complaint

33. X’s father, who had been present at the meeting in July 2018, made a formal complaint on behalf of Mr and Mrs C in November 2018 asking the Council to refer Mr and Mrs C to the kinship team.

Council response

34. The Council responded to Mrs C. It said:
• Mr and Mrs C had volunteered to look after X. The Council had recommended they should apply for a CAO to allow them to share parental responsibility. Therefore, any support offered originally was to assist them to apply for a CAO.
• It was only later that Mr and Mrs C changed their mind and asked for kinship support. The Council said it would now assess them as foster carers. It says, ‘no direction was made to you to assume care of [X] and this was to be considered, and is still, a private family arrangement’.
35. After receiving the Stage One response, Mr and Mrs C complained again to the Council. The Council held a meeting in January 2019 at which the issues were discussed.
36. In its stage two response, the Council said:
1. Mr and Mrs C and other family members present at the July 2018 meeting said that Mr and Mrs C had made it clear that they could not look after X without financial assistance and the Council offered kinship care to support them in doing so. They also said that other social workers had offered them support and assistance that they had not received.

The Council apologised that ‘your experience with Children’s Social Care … has not been of an acceptable standard. At the [July meeting, Officer O], in her capacity as clinician, had a very specific remit to facilitate the meeting only and should not have commented on any part of the case which sat outside of this remit, including recommending kinship care or any other mechanism of support. Similarly, I would like to apologise for the poor social work practice you have encountered and appreciate that this has added to your confusion and frustrations. Therefore, I partially uphold this part of your complaint.

2. Mr and Mrs C still wanted financial and other support and believed an SGO would not provide that so were still seeking a kinship carers’ arrangement.
3. The Council said that it had closed its file on X because he now lived in another council’s area, there were no safeguarding concerns about him and this arrangement could be formalised through an SGO.
2. The Council agreed to a further review to try to resolve the matter. After the review, they said ‘X is not being looked after by [the] Council. Therefore [it] is not responsible for providing support, including financial support’.

Was there fault causing injustice?

38. It is clear from the documents I have looked at that the Council’s section 20 duty to accommodate X was engaged at the time in question. While he had been living with his grandparents, this was an informal arrangement and his parents retained responsibility for him. When the grandparents said they could no longer look after him, at a legal meeting, the Council said that the test for beginning legal proceedings was clearly met because of the risk of abuse. It therefore looked for alternatives within the family.
39. The Council denied in its stage one response that it, or its officers asked Mr and Mrs C to take X into their care or offered them any inducement to do so. It was slightly less forceful in this denial in its stage two response, implicitly accepting that Officer O might have done this but had no authority to do so. But what is clear is whether Officer O should have given Mr and Mrs C the impression that the Council would offer kinship support or not, the officers involved at the meeting where a decision about X’s future was made, played a central role in getting Mr and Mrs C to agree to take X. Their actions were fundamental to his placement The courts are clear that if a council plays a significant role in making arrangements for a child, the most likely conclusion is that it is accommodating that child. With that responsibility, comes the responsibility for support, both financial and in other ways.
40. The available evidence suggests that the matter of payment was discussed. Officer O’s note of the July meeting includes this phrase, ‘After the meeting…[Mrs C] stayed behind to talk briefly to [Officer P] and myself regarding the process now of a viability assessment (arranged for next week) and kinship’. (my emphasis). Further, the Council has accepted that all the family members present at the meeting say that they had understood that Mr and Mrs C would be paid.
41. Therefore, I have decided that it is more likely on balance, that the meeting occurred as Mr and Mrs C say it did than as the Council said it did. It is more likely than not that Officers O and P set out the danger: X would go into care if no one from the family stepped in. Mr and Mrs C said they would do so if offered assistance. The officers agreed. Mr and Mrs C agreed to take X in.
42. However, even if this was not exactly what happened, X was a looked after child and the Council should, immediately, according to its own policy, have assessed Mr and Mrs C as foster carers.
43. Further, the judgment in Southwark v D, the judge made it clear that for the arrangement to be considered a private family arrangement, a council would have had to have made it clear to the prospective carers exactly what the financial position would be and there is no evidence that it provided her with enough or any information which would enable her to make an informed decision.
44. If the Council had only ever intended to support Mr and Mrs C by providing advice in relation to obtaining a CAO, it should have been absolutely clear about this. It should have explained the limits of its planned assistance and set this out in writing, again so that Mr and Mrs C could have made an informed decision. Its failure to do so is fault. Had Mr and Mrs C understood the implications of agreeing to care for X, they may not have agreed to take care of X or they may have been firmer in their demands for assistance.
45. I therefore find the Council at fault. It should pay Mr and Mrs C as foster carers according to their payment rates and backdate the pay to the day that X went to live with them.

Agreed action

46. Within two weeks of the date of this decision, the Council has agreed to write to Mrs C and apologise and to pay her £300 in recognition of the time, trouble and distress it has caused her.
47. Within two months of the date of this decision, the Council has agreed to complete any assessments required and calculate the value of fostering allowances and any other payments it should have paid backdated to the day that X moved in with Mr and Mrs C and pay the sum to Mr and Mrs C. It has agreed to send those calculations to the Ombudsman.
48. In my draft decision, I recommended that the Council should review its approach to connected carers placements to reflect this decision. The Council says it has already done so.

Back to top

Final decision

49. I have found the Council at fault. It has accepted my recommendations. I have closed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman