Summary: Mrs X complained that the Council has declined to accept that it placed her grandchild with her and that she is, therefore, a family and friends carer. She says that, as a result, she has been denied financial support to which she is entitled. We did not uphold Mrs X’s complaint. However, we found the Council was at fault in failing to have a policy on family and friends foster carers as required by law. The Council has agreed to publish a written policy.

The complaint

1. Mrs X complains that the Council has declined to accept that it placed her grandchild with her and that she is, therefore, a family and friends carer. As a result, she has been denied financial support to which she is entitled causing her financial hardship.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. I have considered all the information provided by Mrs X, made enquiries of the Council and considered its comments and the documents it provided.
5. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legal and administrative background

Duty to provide accommodation

7. Section 20 of the Children Act 1989 says councils shall provide accommodation to any child in need within their area who needs it, because:
• there is nobody with parental responsibility for them;
• they have been lost or abandoned; or
• the person who has been caring for them being prevented from providing suitable accommodation or care.
8. 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.

Family and friends carers

9. 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’.
10. When a child needs to be accommodated, the law says councils should consider placing them with family or friends first. The family member or friend must be suitable and able to provide appropriate care. A formal process is followed to assess their suitability. Family and friends foster carers can receive a fostering allowance and other practical support from the council.
11. 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.
12. The Court considered a private fostering arrangement might allow a council (otherwise likely to have had to provide accommodation for a child), to ‘side-step’ that duty. For a council to side-step its duty, it must have given the carer enough information to allow them to give their ‘informed consent’ to accepting a child under a private fostering arrangement. To do this 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.

Our Focus Report on family and friends carers

13. In November 2013, we issued a focus report about family and friends carers. We made several recommendations to promote good practice including:
• councils should, in accordance with statutory guidance, have a suitable family and friends care policy and follow that policy;
• where a council was involved with the child’s family before they came to live with a family member, the council should be able to show it explained to the carer the implications of agreeing to an informal family care arrangement, rather than becoming a family and friends foster carer; and
• councils should carry out appropriate and timely checks of family and friends carers to prevent the child being placed at additional risk and ensure they are able to provide suitable care for the child.

Key facts

14. In January 2022 Mrs X’s granddaughter, C, was living with her mother, Ms M, who had separated from C’s father, Mr F, who is Mrs X’s son.
15. C was placed on a child protection plan under the category of emotional abuse. Ms M was finding it difficult to provide consistent care for her. Professionals were concerned about Ms M’s mental health.
16. On 21 January C’s social worker, Officer A, received a telephone call from Ms M. Her notes of the conversation state “she wanted to relinquish care of [C] to paternal family”. Ms M told the social worker she could not look after C. The notes go on to state, “Mum states that she will speak to [Mrs X] to see if they can take [C]”.
17. Officer A then recorded that she telephoned Mrs X. The notes of the conversation state Mrs X “has spoken to mum and aware of her wishes… [Mrs X] confirmed she is willing to have [C] and so is [Mr F] who is away in Plymouth”. Mrs X denies speaking to Ms M. She also denies saying that Mr F was willing to take C. She says she could not speak on his behalf as she had not discussed the matter with him being unaware of the situation until the social worker telephoned her.
18. Mrs X explained to Officer A that she could not collect C immediately. She suggested her relative could collect C and care for her overnight until she could collect her.
19. Officer A then recorded that she received a further telephone call from Ms M who was upset because Mrs X had asked whether her relative could stay with her overnight. She said she needed C to go and did not want anyone in her home. Officer A advised that she would have to call the police and possibly remove C. She recorded that Ms M said, “yes this is what I want to happen”.
20. Officer A telephoned C’s maternal grandfather to ask if he could help by transporting C to Mrs X’s relative but he declined.
21. Officer A telephoned the police to ask them to check on Ms M’s safety. She explained Mrs X’s relative would collect C and arranged a taxi for her.
22. Mrs X’s relative collected C on 21 January and looked after her overnight. Mrs X collected C the following day and took her home.
23. On 24 January the Council requested the child protection case be transferred to the council in whose area Mrs X lived (’the new council’).
24. The same day Officer A completed an Early Help assessment. She stated she had discussed the assessment with Mr F and he had agreed to it being undertaken. Officer A stated, “[C] appears comfortable in the care of her father and grandmother”. She also stated, “[C] has only been in the care of her father for a short period… Dad is happy that [C] is in his care now and is looking forward to being the protective and stable factor in her life”. She went on to state, “Child is currently living with paternal family, father and paternal grandmother who are being supported by the wider family”.
25. On 18 February Officer A carried out a virtual visit with C, Mr F and Mrs X. Her note of the visit stated, “both [Mr F] and [Mrs X] advise that [C] has settled in well”. It also stated that Mrs X wanted to know how she could get C’s benefits changed over to Mr F.
26. On 14 March 2022 the Council requested police checks on Mrs X. There were also discussions between Officer A and Mrs X regarding Ms M’s contact with C.
27. On 21 March Mrs X sent a text message to Officer A asking her to clarify what kind of financial support would be put in place for C’s care. She said that, as previously discussed, she had reduced her working week from five to three days to accommodate the request from the Council to care for C. She said she had already spent £1000 of her own money purchasing necessary items for C.
28. On 25 March Mrs X again asked Officer A what sort of financial assistance she could receive. The officer advised her to contact the Child Support Agency who would calculate what Ms M should pay towards C’s care.
29. In April the new council completed a Children and Families assessment. This document set out the events which had led to C moving into its area. It stated “the paternal family were contacted and [Mrs X] arranged with her relative to collect [C] with the support of [children’s services]… [Mr F] was away at the time but was in agreement and wanted to care for his child”. The document went on to say that C “has been observed to be happy and comfortable in her father’s and paternal grandmother’s care”. It also said, “[Mr F] is supported by his parents who have both stepped in… [Mrs X] reducing her working hours to assist him”.
30. Mrs X again wrote to Officer A asking for financial help. She said she wished to be C’s family and friends foster carer and said that, at no point since she collected C, had she gone through a foster assessment process. She requested an assessment.
31. Officer A responded on 26 April 2022 saying it was unlikely Mrs X’s expenses would be reimbursed. She said “Yes we asked if you could step in just like we asked [maternal grandfather]. In your case [Mr F] was away… The option if you could not step in was [C] going into foster care”. She went on to say the Council could not pay Mrs X to look after C outside a formal arrangement and the cost of any expenses were normally the responsibility of the family. She said Mrs X had agreed to support Mr F with C and he was C’s primary carer as he had parental responsibility.
32. In May the new council completed a Child/Young Person’s Plan which stated, “[Mrs X] is the main carer and has reduced working hours to 2 days a week to care for [C] with [Mr F] supporting”.
33. Mrs X instructed solicitors who wrote to the Council in June 2022 asking it to accept that Mrs X was a friends and family carer and provide her with financial support. The Council argued that it was a private family arrangement and it had not placed C with Mrs X.
34. The solicitors wrote to the Council again in March 2023 referring to Officer A’s email of 26 April which they had previously been unaware of. They argued that this supported its argument that this was not a private family arrangement. The Council maintained its stance.
35. Mrs X complained to us in October 2023.

Analysis

The placement

36. Mrs X says C was placed with her by the Council in January 2022 and it should have treated her as a family and friends foster carer and paid her an allowance.
37. The Council says C went to live with Mrs X and Mr F as a result of a private family arrangement, so she was not a family and friends foster carer.
38. In the Southwark case, the Court looked at whether an arrangement for a child to live with a relative or friend was truly a private arrangement. The Court said that, where a council takes a major role in making arrangements for the child to be fostered, it is likely to conclude it is acting under its duties to provide the child with accommodation. If a council is simply facilitating a private arrangement, it must make it clear to all parties that those holding parental responsibility for the child were responsible for the financial arrangements to care for the child before the person takes on the care for the child, so they can make an informed decision.
39. When considering complaints, we make findings based on the balance of probabilities. This means we look at the available relevant evidence and decide what was more likely to have happened.
40. The Council’s records of the telephone conversations on 21 January 2022 support its argument that Ms M contacted Mrs X to ask her to take C. However, the Council had a duty to play a part in any placement given the fact that C was on a child protection plan and it had a duty to safeguard her welfare. It arranged for C to stay with Mrs X on 21 January as Mr F was prevented from caring for her temporarily as he was away in Plymouth and the social worker was unable to contact him. However, the record shows Mrs X told the social worker Mr F was willing to care for C.
41. Mrs X arranged for C to be collected by her relative and the Council arranged a taxi for her. On this day the child was accommodated.
42. Section 20 (1) of the Children Act 1989 says every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
• (a) there being no person who has parental responsibility for him;
• (b) his being lost or having been abandoned; or
• (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
43. Section 20 (4) says a local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.
44. The evidence in this case is not completely conclusive about who did what and when. However, I find it most likely the Council accommodated C for at least one day before she went to live with her father. It placed her with Mrs X to safeguard her welfare while Mr F was temporarily unable to provide her with suitable care.
45. The assessment dated 24 January shows C was now in her father’s care, and had been for a few days, with Mrs X supporting him to care for her and providing them with accommodation. So, C was no longer accommodated. Given the short time frame, I am satisfied no significant injustice would have been caused to Mrs X and so I will not investigate further to reach a view on whether there was fault.
46. Although the new council later stated that Mrs X was C’s main carer, this does not indicate that she was a friends and family foster carer for Children Act purposes. Mr F retained parental responsibility. He was able and willing to care for C (he was not prevented through illness or imprisonment and did not abandon her as set out in s20) and Mrs X said on 21 January that he was willing but was just not in the area at the time. So, it was his responsibility to provide care or to arrange care for C and ensure Mrs X received the correct support, including financial support, to care for C in the longer term after the initial need to accommodate her.

Policy on family and friends carers

47. The Council is required by law and by statutory guidance to have a policy on family and friends carers. The Council is at fault in failing to publish a clear policy on family and friends foster carers as required. This did not cause Mrs X an injustice, but I will make recommendations to remedy the situation for the future.

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Agreed action

48. The Council has agreed that, within six months, it will:
• publish a written policy on family and friends foster carers; and
• publish a leaflet for potential family and friends foster carers setting out the different options for children who cannot live with their parents and explaining the financial implications of each for the carer.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I do not uphold Mrs X’s complaint. However, I find the Council was at fault in failing to publish a clear policy on family and friends foster carers.
51. I have completed my investigation on the basis that the Council has agreed to implement the recommended service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman