Summary: Mrs X complained the Council did not offer appropriate financial assistance whilst she was caring for her great-granddaughter for 17 months. We have found fault because the Council failed to properly explain the effect of the arrangement in place at the outset. To remedy the injustice caused by this fault, the Council has agreed to apologise, make a payment to Mrs X and make changes to its procedures.

The complaint

1. Mrs X complains the Council promised financial assistance when her great-granddaughter lived with her for 17 months but that this never materialised.
2. Mrs X says her finances have been greatly affected by the costs incurred as she has had to use her savings to feed, clothe and transport the child to school.

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What I have investigated

3. Paragraph five (below) applies to this complaint. I have exercised discretion to investigate Mrs X’s complaint back to 2020 as the statutory complaints process was concluded late in 2022.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. 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.

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How I considered this complaint

9. I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

The relevant law and policy

Child in need

11. Section 17 of the Children Act 1989 (S17) says councils must safeguard and promote the welfare of children within their area who are in need.
12. A child is in need (CiN) if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support; or
• their health or development is likely to be significantly impaired unless the council provides support.

Child Protection

13. Under section 47 of the Children Act 1989 (S47), where a council has reasonable cause to suspect that a child in their area is suffering or is likely to suffer significant harm, it has a duty to make such enquiries as it considers necessary to decide whether to take any action to safeguard or promote the child’s welfare. Such enquiries should be initiated where there are concerns about abuse or neglect.
14. Anyone who has concerns about a child’s welfare should make a referral to children’s social care and should do so immediately if there is a concern that the child is suffering significant harm or is likely to do so.
15. The council should make initial enquiries of agencies involved with the child and family, for example, health visitor, GP, schools and nurseries. The information gathering at this stage enables the council to assess the nature and level of any harm the child may be facing. The assessment may result in:

• no further action;
• a decision to carry out a more detailed assessment of the child’s needs; or
• a decision to convene a strategy meeting.

Caring for the children

Private family arrangement

16. Informal family care is sometimes called a private family arrangement. This is when the child lives with a close family member, grandparent, uncle, sibling and so on and it comes about by a private arrangement between the parents and the close relative.
17. The parents remain responsible for financial support for the child and the carer is not automatically entitled to support from the council.

Friends and family carers

General duties and Southwark judgement

18. Section 20 of the Children Act 1989 (S20) says councils shall provide accommodation to any child in need within their area who needs it, because:

• there is nobody with parental responsibility to care for them;
• they have been lost or abandoned; or
• the person who has been caring for them is being prevented from providing suitable accommodation or care.

19. Councils cannot accommodate a child under section 20 if a person holding parental responsibility objects and is willing and able to care for the child or arrange care for the child.
20. 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 (LAC).
21. When a child needs to be accommodated, the law says councils should consider placing them with family or friends first. Friends and family foster carers can receive a fostering allowance and other practical support from the council.
22. The courts have considered whether arrangements for a child to live with a relative or friend are truly a private arrangement. In a key case (London Borough of Southwark v D [2007] EWCA Civ 182), the Court said where a council has taken a major role in arranging for the friend or relative to care for the child, it is likely to have been acting under its duties to provide the child with accommodation.

What happened

23. Mrs X has a grand-daughter, Miss Y. Miss Y has four children, two of which were involved in the events leading to this complaint. The two young children involved are Miss Y’s daughter child A and Miss Y’s son child B. The children are Mrs X’s great-grandchildren.
24. On a Saturday in mid-August 2020, an allegation was made to the police about concerns for the safety of A and B. The same day, police officers attended Miss Y’s house and arrested her as part of their investigation. A and B were taken into police protection.
25. Police called Mrs X to ask if she could come to collect her great-grandchildren and for them to stay with her. She had been suggested as the most suitable family member to care for the children.
26. Mrs X and her husband collected their great-grandchildren and removed them to their house.
27. Later that day, police made a referral to the Council to advise of earlier events.
28. Police records show that whilst police protection powers were used, this was seen as a voluntary arrangement by all of those who had parental responsibility – in this case, Miss Y. Police records also show Miss Y consented for the children to be taken to Mrs X’s house.
29. Later that day, the Council’s social services out of hours service decided it needed a strategy discussion to decide the next steps. It held the strategy discussion late in the evening on the same day. The meeting decided a joint visit of police and social services together would be necessary to consider the children’s needs and any risk they may be at.
30. On Sunday, Mrs X contacted the Council’s social care out of hours service to make an enquiry about whether the children were allowed to have other family members visit them. The police subsequently advised Mrs X to wait until the joint visit had taken place before allowing any other family to visit.
31. On Monday, the Council visited the children at Mrs X’s house to carry out the joint visit with the police.
32. The Council confirmed during communications with Mrs X and her daughter (A and B’s great-aunt) over the coming days that the children staying with them was a family arrangement. It advised that A and B could stay with either Mrs X or her daughter, whilst the S47 investigation was happening.
33. In the latter part of August 2020, the Council decided no further action was required under S47 and that it would continue with a Child and Family Assessment (CAFA) under S17 instead. This was nine days after the children had gone to live with Mrs X.
34. At this time, Mrs X asked if there was any financial help available for fuel costs as she believed foster carers received help with this. She said that although she did not want the children to go into foster care, she would like help with fuel costs.
35. Early in September 2020, the Council met with A at school. It explained it needed to speak to Miss Y, Mrs X and her great-aunt to look at what the plans were for both A and B and whether Miss Y planned to take both children home.
36. In mid-September 2020, the Council met with Mrs X and the children’s great-aunt. It advised it had nothing more to follow up on and if Miss Y wanted the children to return home that would be her right.
37. Later in September 2020, the Council met with Miss Y to explain the above. As A did not wish to return home, the Council and Miss Y agreed to work together to return B home to Miss Y in the coming weeks. The Council and Miss Y agreed to work on returning A home later on.
38. At the beginning of October 2020, Mrs X complained to the Council that she needed help with fuel costs to transport the children to and from school.
39. The Council offered £40 as a one-off payment to assist with fuel costs but advised Mrs X that the “child element” portion of Miss Y’s universal credit payment should be used to fund any such costs. The Council confirmed it could not make payments towards fuel on an ongoing basis.
40. In mid-October 2020, the Council completed its CAFA and decided to assist the family under S17. This meant regular CiN discussions and review meetings to support the family would take place.
41. Around the same time, Child B returned to the care of Miss Y. Child A did not wish to return to living with Miss Y and so continued living with Mrs X.
42. Late in November 2020, the Council issued its stage one complaint response to Mrs X. It apologised for any misunderstanding regarding fuel costs but re-iterated that A living with her was a “private family arrangement”. The Council repeated its response of the £40 offer, that Miss Y should contribute to the costs for A and that the Council was unable to provide any ongoing financial support.
43. Throughout 2021, the Council held regular CiN review meetings to discuss the case.
44. The Council discussed options as to who A might continue to live with as an alternative to the family arrangement in place.
45. In September 2021, the Council arranged for A to be transported to her new secondary school. This was firstly in the form of an interim arrangement where A was transported by a Council worker. Shortly after this, a taxi was arranged for an initial period of three months to transport A to and from school. The arrangement ended when A returned to live with Miss Y early in January 2022.
46. In October 2021, the Council advised Mrs X that Miss Y had signed a voluntary S20 agreement. This meant the Council then shared responsibility for A’s care as she was technically a LAC.
47. A returned to live with Miss Y at the beginning of January 2022 when the S20 agreement was withdrawn.
48. Following a further complaint from Mrs X, the Council offered her a payment for the time when it considered A was a LAC (September 2021 to January 2022). Mrs X has so far declined to accept this payment.
49. During late 2021 and throughout 2022, Mrs X made complaints to the Council. These included the financial element Mrs X now complains of.
50. Early in September 2022, the Council sent Mrs X its stage two complaint response in line with statutory procedures. Its investigation did not uphold Mrs X’s complaints.
51. In mid-November 2022, the Council sent Mrs X the outcome of its independent stage three complaint review panel. The panel did not uphold Mrs X’s complaints.

Analysis

Placing the children

52. Mrs X complains that the Council and police were both responsible for placing A and B in the care of her and her husband. She says that as such the Council should offer financial support for the 17 months A was living with her.
53. Police records show that it called Mrs X, arranged for the collection of the children and oversaw their collection before referrals to social services were made several hours later.
54. Mrs X provided me with an audio copy of the police’s call asking her to collect the children. Whilst Mrs X’s responses were hard to hear, the police officer made no mention of the Council or any social services involvement when making the call from Miss Y’s home to ask for A and B to be collected by Mrs X.
55. Police records also show that Miss Y gave her consent for the children to be placed with Mrs X, that it was a voluntary agreement and Miss Y was fully aware where A and B were going to be housed.
56. Mrs X also complains that the Council asked her on numerous occasions to extend the children’s stay with her or that the children would need to go into care.
57. In its response to my enquiries, the Council admitted to some confusion over the case records and the date recorded for the initial joint visit. I have viewed the available evidence and there is nothing to suggest the Council directly asked Mrs X or her daughter to keep the children for a few more days.
58. However, police protection powers only last for 72 hours and Miss Y’s bail conditions (set until the end of the first week in September 2020) said she could not contact A and B.
59. Evidence also shows the Council said that although Miss Y still retained parental responsibility, it would support their great-aunt being the children’s primary carer whilst the S47 was being completed due to the bail conditions in place.
60. I am satisfied that after the police protection powers had ended, whilst bail conditions were in place and the S47 investigation still underway in August 2020, on the balance of probabilities, the Council was content for the children to remain in the care of Mrs X and her daughter.
61. As part of my enquiries, I asked the Council if it had explained to Mrs X the effect of entering into a private family arrangement to care for the children in August 2020. The Council said it had no records of this as the arrangement was between Mrs X and Miss Y.
62. Given that the children went to stay with Mrs X as an emergency measure and the Council supported the idea of the family caring for the children whilst the S47 was underway, on the balance of probabilities, I am satisfied the Council should have made it clear how a private family arrangement worked. Not explaining the consequences of this whilst at the same time supporting the idea the family will care for the children during an ongoing Council investigation is fault. This lack of clarity would have led to avoidable distress and uncertainty for Mrs X. I have made a recommendation below to remedy this injustice.
63. I am satisfied the Council did make it clear to Mrs X and her daughter, in mid-September 2020, that Miss Y could ask for the children to return to her at any time. This is in line with the Council’s stance that the arrangement was a family one.
64. However, apart from the very initial entries on the case note records, any notes from the reported date of the initial joint meeting onwards were not finalised until January 2021. These notes were all finalised on the same day, a full five months after the initial joint meeting took place.
65. The Council should try and finalise entries as soon as reasonably possible so that this type of error does not occur. Not doing so is fault because finalising notes significantly after the fact can lead to mistakes as outlined in the Council’s responses to me. Whilst this has not caused a personal injustice to Mrs X, it is important the Council acknowledges this issue. I have made a recommendation below to prevent reoccurrence of similar events in the future.
66. I am satisfied the Council did not take a role in the initial placement of the children with Mrs X and the Council is therefore entitled to take the view that this was a private family arrangement until the S20 was signed.

Fuel costs

67. One of Mrs X’s original complaints to the Council in October 2020 was about the costs of fuel for school transport.
68. The Council offered a one-off payment of £40 towards fuel in October 2020. Mrs X complained the Council had verbally offered £25 per week towards fuel and was unhappy with the £40 offer.
69. There are conflicting accounts of the conversations around this issue. I have viewed the Council’s complaint response to this and associated case notes. On the balance of probability and with a lack of any other evidence to the contrary, I cannot say with certainty that the Council offered Mrs X anything other than the £40.
70. The complaint response was clear in outlining that the children staying with Mrs X was a family arrangement and it therefore had no responsibility to offer Mrs X any other financial support.
71. On this basis, I find no fault in the actions of the Council as it was entitled to take this stance.

Section 20 agreement

72. Miss Y voluntarily signed an S20 agreement late in September 2021. This agreement outlined how anyone with parental responsibility (Miss Y), had to agree to their child (in this case, A) living somewhere else. The Council says Miss Y signed it as a way to retain parental responsibility whilst hoping to regain greater contact with A.
73. In response to my enquiries, the Council said it accepted it should have completed a viability assessment and arranged financial support for Mrs X at the time the S20 agreement was signed, but did not do so. The Council also failed to notify Mrs X of the S20 when it was initially signed.
74. The Council did, however, offer Mrs X and her husband a backdated payment in January 2022. The payment amount was £3,117.75. This payment was for the time the Council assumed responsibility to accommodate A under its S20 duties. The payment offered by the Council is broadly in line with what Mrs X would have received as a friends and family carer at the time.
75. Whilst this delay and miscommunication was fault, there is no ongoing injustice to Mrs X as the Council has offered a payment for the time period concerned, which Mrs X has so far declined to accept. I am satisfied the suggested payment is an appropriate remedy for the amount of time the Council had S20 duties to accommodate A.

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Agreed action

76. To remedy the injustice caused by the faults I identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mrs X;
• pay Mrs X £300 to recognise the avoidable distress and uncertainty caused by the lack of clarity whilst bail conditions were in place and the S47 investigation underway;
• re-state its original offers of £40 and £3,117.75 should Mrs X choose to accept them;
• remind officers responsible for making case notes that these should be finalised as soon as reasonably possible after the event to avoid confusion or errors; and
• consider providing those caring for children under private family arrangements with an information leaflet explaining how the arrangement works and the implications it may have for the care givers.
77. The payment above is in line with the Ombudsman’s guidance on remedies.
78. The Council should provide us with evidence it has complied with the above actions.

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Final decision

79. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman