The Ombudsman's final decision
Summary: There was fault in how the Council dealt with Ms B when it placed her siblings in her care. The Council has completed the statutory children’s complaints process, which means the issues have been independently investigated, and a Panel has reviewed the investigation. The Council has acknowledged there was fault and agreed a means to remedy this. Overall, there was no fault in the investigation and, provided that it resolves any dispute over the payments received and now owing, there is no basis for me to recommend that the Council take further action.
The complaint
Ms B complains that the Council failed to properly investigate her complaint that it did not provide sufficient support for her as foster carer to her siblings.
Ms B says the Council’s shortcomings left her and the children unsupported during extremely difficult circumstances such as the death of their parents and brother. They impacted on the children’s contact with their parents, their wellbeing and financial situation, and has left Ms B with no prospects for her own life.
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) 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
I considered the information provided by Ms B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement.
What I found
The Children’s social care services statutory complaints process 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.
The first stage of the procedure is local resolution. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel.
The independent investigator, at stage two, and the panel at stage three, can make recommendations. The Council should consider these and decide if and how it will implement them.
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.
What happened In 2009, the Council removed Ms B’s younger brother and two sisters from their parents’ care under emergency protection orders. The three siblings were to be placed with foster carers but instead moved in with Ms B who was 18 at the time. Ms B said she did not want her siblings going into the care system. Ms B was about to complete an induction in her profession, but decided to take on the care of the children. She says the Social Worker had told her that it would be as if she was a foster carer and this would be her new career.
The Council moved the family to a house. The Council’s records say it viewed Ms B as a family carer at that time and although it supported her through some payments, it did not pay her a fostering allowance or assess what support the family might need.
In December 2009, the Council got interim care orders for the children. This meant the children became ‘looked after’ children, and they would be entitled to support from the Council. The Council then paid Ms B a fostering allowance. The Council assessed Ms B’s ability to care for the children. It moved them to supported accommodation. It is not clear why they had to leave their own home, which Ms B says was suitable for their needs.
In November 2010, the court granted Ms B a Residence Order, which meant she had full parental responsibility. A support plan was agreed between the Council and Ms B as part of the order. This included that the Council would support the family with respite care, and referrals to services, and regular reviews of their needs. The agreement also mentioned that the Council would support Ms B with contact between the children and their mother. At this stage the Council no longer considered Ms B a family carer.
Ms B says the Council’s social worker had told her that if she did not apply for the order, the children would have to go into care. She has described how distressing it was to essentially take parental responsibility from her own mother. The Council has accepted that it did not advise Ms B of alternatives but also points out that she was legally represented. It continued to pay her at the same rate, minus the amount of benefits she received, but as Ms B had parental responsibility for the children, the Council no longer paid the allowances for birthdays, Christmas and holidays she would have received as a foster carer.
The Council provided short break respite care for Ms B and advised her of her benefit entitlement. The Council’s notes say that Ms B did not work with the NSPCC as directed by the Court. In July 2011, Ms B told the Council she no longer wanted respite care however, it seems the Council agreed that it would provide short breaks monthly. The Council completed looked after child reviews in July and October 2011, but then decided to continue by way of child in need arrangements.
In February 2013, the Council notes that Ms B was having contact with her mother but there was no written agreement as to how the contact with the children should be managed. Miss B told the social worker that she was unclear what her status was and the Council said it would address this. There is no evidence that it did.
In August 2015, the Council closed its child in need cases for the children. Its notes record that Ms B said she no longer wanted support or further visits. The Council offered Family Group Conferencing, but Ms B declined this.
In 2016, Ms B’s mother died. The Council says it contacted her to offer practical and emotional support but Ms B declined this. Ms B says she had to pay for the funeral. The Council says there is government support for relatives in this situation, but she did not qualify for any financial help from the Council towards the funeral.
Throughout this time, the Council has continued to pay a discretionary allowance. Later in 2016, the Council agreed with Ms B that it will visit her to assess her financial situation and what support the family needed following the death of their mother. The Council says that despite its reminder, Ms B did not contact it to arrange an appointment.
In 2017, the Council again contacted Ms B to make a financial assessment. Ms B told the Council she feels she should have been advised to apply for special guardianship order rather than a residence order as this would allow the Council to make holiday payments. Ms B made a formal complaint to the Council and it agreed to meet with her to discuss her grievances. However, Ms B told the officer she did not want to discuss this. She said that she has explained her issues many times but then staff change and there is no progress.
Nonetheless, the Council responded to Ms B. In summary: the Council said that the court deemed the residence order to be appropriate; it noted that Ms B had for many years made requests for the birthday allowances to be paid in addition to the weekly allowance. The Council explained payments are discretionary and the Council had not at that stage formally approved any other payments to her; the Council said it had always been for Ms B to determine the level of contact between the children and their mother. It said the Council would have advised and given emotional support but Ms B had not asked for this.
It had provided respite care but stopped this at Ms B’s request in 2015. It said that Ms B had not specified what other help she feels the Council should have given her.
It said that she could contact it any point in the future for help and advice.
Ms B has sent me information showing that the Council was aware that Ms B was unsure about how to manage contact with her mother and had asked for help.
In 2019, Ms B’s younger brother sadly died (by this time he was an adult). Ms B’s MP contacted the Council asking it to help her. The Council says it tried to contact Ms B but she would not respond. In 2020 after eight attempts to contact Ms B, the Council closed the case.
In 2021, after further contact and liaison between Ms B and the Council, it decided to consider the issues by way of a stage two investigation. It appointed an independent person and independent investigating officer (IO).
The IO’s investigation considered its contact with Ms B and interviews with the officers as well as the Council’s file. The investigation considered all aspects of Ms B’s complaint.
The IO found that the Council had failed to assess Ms B properly in 2009, in terms of the financial and welfare support she needed, or the family’s housing situation. The file said that for a period it had considered her a family carer but this was factually inaccurate as the children had been removed from their parents care. The IO also held there was no evidence that the Council had discussed alternative options with Ms B when it encouraged her to get a residence order.
The IO partially upheld that the Council had failed to practical and financial support to the family. The Council completed a viability assessment in 2010 following the residence order which raised concerns about how Ms B, then 19 years old could meet the children’s needs. The court had recommended the children stay subject to care orders so that they would have the correct support. The Council did continue to pay an allowance. This was equivalent to a foster carer’s allowance but did not include any additional money for birthdays and holidays (as a foster carer would get). It also meant that the money the Council gave her would be taken into account for Ms B’s benefit claims, unlike fostering payments. The IO concluded that although the Council gave Ms B support, they could not establish whether this was in accordance with the court order.
The IO upheld that Ms B suffered financial loss when the Council moved the family into supported housing.
The IO made recommended that the Council should: apologise to Ms B and her siblings; provide the financial support Ms B should have received so that she is paid at the fostering allowance rate and make up the missed holiday and birthday payments; explain in writing why it did not fully assess or explore with Ms B the options that were available to her in 2009; reflect on the learning from this case and share this with practitioners; pay Ms B £500 in respect of the financial implications of her moving into and out of supported accommodation, and £300 in recognition that she had tried to make a complaint before but then had to get her MP involved; and ensure it has a robust children’s complaints system.
The Council agreed with the IO’s recommendations and sent Ms B an action to plan as to how it would implement these. The Council calculated missed holiday and birthday payments as over £7,000. It also recognised that it had taken too long to respond to her complaint and offered to pay her £250 in recognition of this. The Council said that it cannot tell what advice it gave her about the residence order but that there was no evidence it had discussed different options with her. Overall however, the Council agreed its approach had not been supportive but that it had made changes in the intervening years.
Ms B asked the Council to arrange an independent panel to consider her complaint at stage three of its process. She said the Council had not taken into account the impact on her and the children, the offer of £500 in recognition of moving costs was not sufficient. Ms B was also distressed that the Council had produced a capability assessment and financial agreement from 2009 that she had no prior knowledge of.
The Council convened the stage three panel consisting of an independent chair and two independent panel members. The Councils complaints managers and Ms B also attended the review meeting. The Panel considered the IO’s report in detail. Ms B says she also took a lot of information to show the impact on the family of the Council’s shortcomings, but she does not think the Panel considered this properly.
The Panel did not alter the IO’s findings, but did make new recommendations as to how the Council might put matters right. It recommended that the Council: pay £3,690 in recognition of the financial impact of her moving into and out of supported accommodation; offer Ms B and the children support and advice; arrange peer support for Ms B around parenting teenagers; arrange support for Ms B and her siblings regarding contact with one another, and support for Ms B in managing contact between a younger sibling and their father; arrange bereavement counselling for Ms B and carer support; and give Ms B an explanation of the financial payments and her benefit entitlement.
Again, the Council accepted the findings and that it had not assessed the family in 2009. It said this ‘meant that opportunities were lost to identify the emotional, practical and financial support which you and children needed at the time and for the future’. It said it had made improvements to how and when it does assessments. However, the Council understood that Ms B still felt that she had not been heard and that the Council had not properly considered the emotional impact on the family.
The Council’s letter to Ms B setting out its response says the Panel did not find maladministration and injustice and so no financial remedy is available. The Council has since explained to me that it accepts there has been maladministration and injustice. It says it had meant the Panel found no additional fault. The Council has made changes to procedures to make sure there is no such confusion in the future.
Ms B complained to the Ombudsman that the Council had not properly addressed her complaint to it. She says the Council still has not understood the impact on her family, not just of its shortcomings in 2009, but also when she asked it for help in later years. Ms B explained that the Council did not help her with contact with her mother and this now cannot be put right; nor did it offer financial support. She also was having difficulty getting the correct payments from the Council despite the IO and panel recommendations.
Ms B asked the Council to reconsider its position. The Council has offered her and the children an assessment of their support needs, and a further payment of £6,000.
Ms B told us that she wants the Council to consider her and the children to be the same as a foster family subject to a care order; she has asked for a full explanation of why she was not supported or assessed since 2009; and she wants respite care if needed. Overall, Ms B says she wants appropriate redress or a fresh look at her full complaint.
Was there fault by the Council causing an injustice to Ms B and her family?
The IO and independent panel found there was fault by the Council in how it had dealt with Ms B and her family. Initially it treated her as a family carer when the children had been removed from their parents, and it did not assess her correctly then. This meant that the Council could not be sure that it was giving the family the right kind of support, financially or otherwise.
The Council also accepted that its approach had not always been supportive. It has offered to put this right by now assessing what would currently be the most appropriate level of support.
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.
The IO and the Panel largely upheld Ms B’s complaints. I can see that Ms B asked the Panel to consider the issues at stage three of the process, because the IO had not properly considered the lack of support and impact of this on the family. The IO’s investigation was not comprehensive and their recommendation was focussed on the financial remedy.
I appreciate that Ms B feels the Panel did not properly consider all the information Ms B had with her, and that this was upsetting and frustrating. However, my current view is that the Panel did review the IO’s investigation and although it did not change the findings, it did identify the investigation’s shortcomings and recommended an improved remedy to properly reflect the impact on Ms B’s family.
Overall, Ms B’s complaints have been properly addressed and there is no fault in the overall independent investigation. The conclusions and recommendations of the IO and the Panel were based on careful consideration of the facts.
The Council accepted the recommendations and has written to Ms B to explain how it will implement these. This included the offer to meet with her to hear her experiences and to explain the remedy actions, if she felt that would be helpful. The Council has offered an additional payment and named officers to deal with the financial situation and with an assessment of the family’s current support needs, to include help with contact, respite and counselling if wanted. Overall, the Council’s proposals in line with the Panel’s recommendations are an appropriate way to remedy the injustice to Ms B. As such, there is no basis for me to investigate the complaints afresh.
Ms B remained unsure that she has had all the payments due. In response to my investigation, the Council has provided information on the payments she should have received. This should allow Ms B to establish that she has had the correct amount. If she has not, I would expect the Council to continue to work with Ms B to resolve this. She may bring an additional complaint to the Ombudsman if her concerns about the payments she has received are not settled.
Ms B, in her complaint to the Ombudsman asked that the Council consider respite care for the children. The Council says this was in place but that Ms B had said she did not want to continue with this. Ms B says that there were times when she asked for respite care but was ignored. Overall it is clear that the full support was not always in place as had been envisaged in 2009/10. The Council can offer appropriate respite now however, by the new assessment it is currently offering Ms B.
The Council has acknowledged that it was wrong to say there was no maladministration and injustice. It has explained how it made this mistake and how it will prevent this from recurring.
The Council has considered whether it should have offered Ms B financial support for the funerals of her mother and brother. However, it says Ms B would have been entitled to a funeral expenses payment from the government. It is open to the Council to take this approach.
Final decision
I have completed my investigation. There was fault by the Council causing Ms B and her family injustice. The Council’s proposals are an appropriate way to remedy this.
Investigator's decision on behalf of the Ombudsman