The Ombudsman's final decision
Summary: Miss X complained the Council did not properly consider the findings and recommendations of an independent investigation carried out under the children’s statutory complaints process. Miss X said the Council’s actions caused her avoidable frustration and negatively affected her mental health. We found fault by the Council who agreed to apologise to Miss X and make a payment to recognise the injustice caused.
The complaint
Miss X complains the Council did not properly consider the findings and recommendations of an independent investigation carried out under the children’s statutory complaint process. Miss X complains: A senior manager at the Council did not contact children’s services managers at the council for the area where she now lives. Miss X says the Council agreed to do this at the stage three panel hearing; The Council has not provided a remedy for its failure to consider her financial circumstances as part of its Child in Need reviews, and The Council has not backdated its allowance payments to 2008.
Miss X says the Council’s actions have caused her avoidable frustration and have negatively affected her mental health. She would like the Council to consider backdating its allowance payments. Miss X would also like the senior manager at the Council to contact children’s services managers at the Council for the area where she now lives to help her with her request for ongoing provision for her nephew.
What I have investigated I have investigated whether the Council has provided an appropriate remedy as part of its consideration of Miss X’s complaints under the children’s statutory complaint process. I have not re-investigated the complaints already considered as part of this process.
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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I discussed the complaint with Miss X and considered the information she provided.
I made enquiries to the Council and considered the information it provided.
Miss X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making a final decision.
What I found
Looked after Child Councils have a duty to provide accommodation for any child in need in their area who appears to them to need accommodation because: there is no-one who has parental responsibility for the child; the child is lost or abandoned; or the person who has been caring for the child is prevented, whether permanently or temporarily and for whatever reason, from providing suitable accommodation or care.
Councils can either provide the accommodation or arrange for accommodation to be provided. A child accommodated in this way is a ‘Looked After Child’ (LAC). (Children Act 1989, section 20) Friends and family carers When a child needs to be accommodated, the law says councils should consider placing them with family or friends first.
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.
Residence order A residence order is a court order which agrees the arrangements regarding the person with whom a child will live. Residence Orders are now known as Child Arrangement Orders.
Statutory complaints procedure 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. Councils have up to 20 working days to respond.
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. Councils have up to 13 weeks to complete stage two of the process from the date of request.
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 council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
If a council has investigated something under the statutory children’s complaint process, we 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.
Background
Miss X began looking after her nephew, Child A, in 2008. Miss X says at that time, she, Child A and Child A’s parents were living in the Council’s area. Miss X says she and the Council were concerned about Child A’s parents’ ability to care for them and were concerned about Child A’s welfare as a result.
Miss X says in 2008, she asked Child A’s mother if she could look after Child A for a short period, because she was concerned about their welfare. Miss X says she told the Council about this, and says the Council asked her to take care of Child A until it assessed Child A’s parents.
Miss X says the Council made Child A the subject of a child protection plan. She says the Council advised her to go to court to obtain a residence order for Child A.
Miss X obtained a residence order for Child A in 2010.
Miss X and Child A moved away from the Council’s area in 2012.
Miss X continues to care for Child A. Child A has attachment disorder and other complex behavioural needs.
Miss X says she has asked the council for the area where she now lives to provide help with her care for Child A. She says she has also asked the Council where she previously lived for support for Child A.
What happened This chronology includes key events in this case and does not cover everything that happened.
In April 2021, the Council where she previously lived completed a financial assessment for Miss X regarding her request for support for Child A.
On 26 April 2021, the Council wrote to Miss X and told her it would pay a weekly allowance for Child A, effective from April 2021, to be reviewed annually. The Council said the allowance would continue until Child A reached 16 years of age, or 18 years of age if they continued in further education.
The Council acknowledged Miss X's request to backdate the allowance to the point she obtained the residence order. However, it said its records showed Child A was not a LAC and that the residence order was obtained through private legal proceedings. The Council said it did not have a statutory duty to consider a financial allowance regarding child arrangement orders, (previously known as residence orders), but said it could exercise its discretion. The Council said it had exercised its discretion and decided to pay the allowance from April 2021. The Council said it would not backdate the payments.
Miss X’s complaint Miss X complained to the Council on 27 April 2021. She said the Council advised her in 2008 to apply for an order for Child A to be placed into her care and said the Council should have instead made them a LAC. Miss X said the Council had not previously supported her financially and had not carried out financial assessments to ensure she was receiving the correct support. Miss X said her circumstances had not changed since 2008 and she did not understand why the Council had only recently decided to pay an allowance. Miss X said she wanted the Council to look into why it had not previously carried out financial assessments, and to consider backdating the allowance.
The Council decided to escalate Miss X’s complaint straight to stage two of the statutory complaints process. On 27 August 2021, the independent investigator completed their report which addressed the following complaints: The Council failed to follow correct procedures in 2008 by not considering Child A as a LAC The Council failed to provide financial support since 2008 and did not Undertake financial assessments Complete annual financial reviews The Council failed to support Child A with their complex needs since 2008 The Council failed to effectively respond to Miss X’s request for support The Council failed to provide financial recompense for extra expenses incurred in caring for Child A The stage two investigation partially upheld complaint two a) but did not uphold complaint two b). It also upheld complaint five. It did not uphold complaints one, three and four. The investigator’s report set out the reasons for their decision and gave the following recommendations: The Council to consider reviewing additional expenses incurred by Miss X from 2008 to 2012 The Council to apologise to Miss X The Council to communicate with the social worker at the council for the area where Miss X now lives The Council provided its stage two complaint response on 16 September 2021 and agreed with the findings of the independent person and investigator. It apologised for the complaints that were upheld or partially upheld. The Council said it would contact Miss X to identify and pay for any additional costs she had incurred as Child A’s carer. The Council also said it would consider revisiting retrospectively the financial impact on Miss X regarding the period Child A was open to services from the Council.
Miss X was dissatisfied with the Council’s response and asked for her complaints to be considered at stage three of the statutory process.
The stage three review took place on 19 October 2021. The panel upheld the findings of the stage two report but amended the findings regarding complaint two to partially upheld for parts a) and b). The Council acknowledged it should have looked at the issue of Miss X’s finances as part of “a more holistic social work assessment process”.
Regarding complaint one, the stage three panel noted the Council had no record of Miss X contacting it when she believed she did in 2008. However, the panel acknowledged the Council may not have retained or recorded all documents and records regarding Miss X’s case since 2008. It noted the Council held no supervision notes, records of case discussions, “or anything else that would have clarified on what basis that decision for a RO [residence order] was made”. The panel said the lack of recording caused uncertainty about whether the Council should have considered Child A’s living arrangements as part of “a holistic assessment” which “may have resulted in [them] being considered a LAC”.
The stage three panel endorsed the recommendations made at stage two. It also recommended the Council remind staff that case recording and other record keeping must provide accurate information of the processes followed.
The Council sent Miss X its stage three decision letter on 20 October 2021. It accepted the conclusions of the stage three panel and apologised for the upheld elements of the complaint.
The Council made a payment to Miss X in December 2021 regarding the additional expenses incurred from 2008 to 2012.
Miss X remained dissatisfied with the Council’s response and brought her complaint to us.
Analysis As stated at paragraph 21, we would not normally re-investigate complaints considered under the children’s statutory complaint process unless we consider the investigation was flawed. My investigation therefore focusses on whether the Council has provided an appropriate remedy for the fault it identified.
Miss X’s complaint that a senior manager at the Council did not contact children’s services managers at the council for the area where she now lives.
Recommendation 3 of the stage two report says the Council was to communicate with Child A’s social worker in the area where Miss X now lives. However, at stage three, the independent panel chair asked for clarification as to whether this communication would be at a senior level. The Council confirmed a senior manager would contact the third-party local authority regarding this issue.
In its response to my enquiries, the Council says a social worker contacted the third-party local authority in February 2022 and completed an online referral to provide the details of the Council’s involvement.
I acknowledge the stage 2 recommendation says the Council was to communicate with the social worker at the third-party local authority. I also acknowledge the Council says it contacted the local authority and completed a referral via its online system. However, the stage three panel recorded that the Council confirmed that its senior manager would make this contact.
This was not the case and the Council is therefore at fault because it did not carry out the action it said it would regarding this matter.
Miss X’s complaint the Council has not provided a remedy for failing to consider her financial circumstances.
This complaint relates to the following complaint considered at stage two and three of the statutory process: 2. The Council failed to provide financial support since 2008 and did not Undertake financial assessments Complete annual financial reviews The stage three panel partially upheld the complaint and said the Council should have considered the financial circumstances surrounding the placement, and subsequently should have carried out a financial review at each Child in Need review.
Miss X says although the panel partially upheld the complaint, the recommendations did not mention this issue.
The Council says it made a payment to Miss X for the costs incurred for the period 2008 to 2012. It says this payment was in respect of a list provided by Miss X of additional expenses she says she incurred as a result of caring for Child A during this period.
However, this payment relates to the first recommendation of the stage two report which says the Council should consider “reviewing any additional expenses incurred…for the period 2008-2012 that can be evidenced…” This recommendation relates to the following complaint considered at stage two and three of the statutory process: 5. The Council failed to provide financial recompense for extra expenses incurred in caring for Child X As a result, the recommendations do not specifically mention a remedy to address complaint 2. However, the recommendations do say the Council “should formally apologise for those elements of complaint found to be upheld”. This includes the partially upheld complaint of complaint 2.
As stated at paragraph three, I have not re-investigated the complaints considered as part of the statutory process. I have however considered whether the Council has provided an appropriate remedy.
The injustice to Miss X resulting from the Council’s failure to consider her financial circumstances and carry out financial reviews is the uncertainty about the level of financial support which may have been provided by the Council had it carried out those reviews at the time. The injustice to Miss X is also the frustration and distress this caused. I acknowledge the Council has apologised for the “elements of complaint found to be upheld”. However, this does not fully consider the injustice to Miss X and therefore, the Council has not provided an appropriate remedy to this aspect of the complaint.
Miss X’s complaint the Council has not backdated its allowance payments to 2008 The Council says it decided to start paying an allowance to Miss X to support her in her care of Child A, and that it is not its policy to backdate allowances. It says it made its decision based upon its Children’s Services Policy and Guidance for Payment of Special Guardianship, Child Arrangements and Adoption Allowances. The Council refers to points b) and c) of section 3.3 of the policy: Where a Court finds that the Threshold Criteria for a Care Order is satisfied, but makes a Child Arrangements Order in favour of a relative in the child's best interests, in exceptionally rare cases, Darlington Borough Council will consider paying an allowance if it can be shown that the proposed placement is impracticable without such an allowance Where a Child Arrangements Order is made in favour of a relative in private law proceedings, it will be unusual for an allowance to be paid unless the order has been applied for with Darlington Borough Council’s support as a clear alternative to Care Proceedings, when the criteria at b. above will apply; For those carers who hold a Child Arrangement Order, a council’s ability to pay a Child Arrangement Order Allowance (previously a Residence Order Allowance) is a power not a duty. It is therefore a discretionary allowance.
The Council says Child A was not a LAC, and the Child Arrangement Order was made as part of private legal proceedings. I acknowledge Miss X says the Council did not tell her about the options available to her in 2008, and that she obtained a Residence Order on the advice of the Council.
As previously stated, I have not re-investigated the complaints considered as part of the statutory process. On this basis, my investigation cannot determine whether the Council should have been paying the allowance since 2008. I have seen no evidence to indicate the Council’s decision to pay the allowance from April 2021 is contrary to its policy or relevant guidance. In addition, the decision to pay the allowance is discretionary, and the Council’s policy does not require it to backdate the payments. As a result, the Council is not at fault for deciding not to backdate the allowance.
The Council’s record keeping The stage three panel recorded that the Council held no supervision notes, records of case discussions, or any other records to clarify on what basis Miss X decided to apply for a residence order. The panel said this lack of record keeping caused uncertainty about whether the Council should have considered Child A’s living arrangements as part of its assessment, and whether this may have resulted in Child A being considered a LAC.
While my investigation does not consider the events regarding the circumstances which led to Miss X obtaining a residence order, I have considered the findings of the stage two and stage three investigations. This includes the findings that the Council has no records relating to this matter.
As part of maintaining an effective and robust administrative process, we would expect councils to keep records to demonstrate what advice and support they provided as part of a family and friends carer arrangement. This includes how councils distinguish between private arrangements made between parents and carers, and arrangements in which the child is accommodated under the Children Act 1989. The Council’s failure to keep records to demonstrate this is fault.
The Council’s complaint handling There is delay in the Council’s consideration of Miss X’s complaint via the statutory complaint process. Miss X made her complaint on 27 April 2021. The Council decided to escalate the complaint straight to stage two. This means the Council had 13 weeks to provide a response from the date of the request.
The independent investigator completed their report on 27 August 2021, and the Council provided its stage two response on 16 September 2021. As this is a period greater than 13 weeks, this delay is fault by the Council.
Having identified fault, I must consider whether this caused Miss X an injustice. As previously stated, the injustice to Miss X resulting from the Council’s failure to consider her financial circumstances and carry out financial reviews is uncertainty, frustration and distress. The injustice caused by the lack of a robust administrative process, the delay in considering the complaint, and the failure to adhere to the agreement that a senior manager would contact the third-party local authority, also caused avoidable distress and uncertainty.
Agreed action
To address the injustice arising from the fault identified, the Council has agreed to take the following action within one month of the final decision; Provide an apology to Miss X for the fault identified as part of this investigation; Make a payment to Miss X of £1,000 in recognition of the distress, frustration and uncertainty identified. This is the higher amount as set out in our guidance on remedies due to the prolonged period where uncertainty exists; Make an additional payment to Miss X of £200 in recognition of the time and trouble incurred by bringing her complaint to us; The senior manager at the Council to contact children’s services at the council for the area where Miss X now lives, as agreed in the stage 3 hearing; Provide evidence to us the Council has reminded staff that case recording and other record keeping must provide accurate information of processes followed, and Remind staff to adhere to the timescales of the statutory complaints process.
The Council is required to provide us with evidence it has complied with the above recommended actions.
Final decision
I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.
Investigator's decision on behalf of the Ombudsman