Summary: The complainant (Mrs X) said the Council failed to comply with the statutory timescales when considering her complaint through the children’s statutory complaint procedure. Mrs X also complained about the unsatisfactory remedies offered by the Council. We found fault with the Council’s delay. The Council agreed an extra remedy of a symbolic payment.

The complaint

1. Mrs X complains about the Council’s delays within the children’s statutory complaint procedure. She also says the Council failed to offer suitable remedies for the failings identified.
2. Mrs X says the Council’s failings caused her significant distress as she was left in financial difficulties for the first year she cared for her granddaughter (Y). She is also concerned about the impact on the Council’s failings on Y’s future.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
6. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.
7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

9. I spoke with Mrs X and considered the information she provided.
10. I considered the information the Council provided.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislative and administrative framework

Children’s statutory complaint procedure

12. 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. We also published practitioner guidance on the procedures, setting out our expectations.
13. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
14. 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 investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
15. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.
16. 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 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.

Friends and family carers

17. 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 to care 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.

18. 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.
19. When a child needs to be accommodated, the law says councils should consider placing them with family or friends first. Kinship foster carers can receive a fostering allowance and other practical support from the council.
20. 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.
21. 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.

What happened

22. At the end of August 2022, after a few days in the hospital Mrs X’s daughter (Ms Z) died unexpectedly. She was the only person with parental responsibility for her one-year-old daughter (Y).
23. Mrs X and her husband (Mr X) with the help from their other daughter looked after Y when Ms Z was in the hospital.
24. On the second day of Ms Z’s hospital stay the Council received a vulnerable child referral from the Police.
25. Three days later the Multi-Agency Safeguarding Hub (MASH) assessed Y’s circumstances. It noted concerns that the family needed much support. Y was staying with Ms Z’s sister. MASH contacted the Health Visitor to secure support for the family. After a telephone conversation with Mrs X the Council decided there was no immediate need for a social worker as Mrs X and Ms Z’s sister were able to care for Y when Ms Z was in the hospital.
26. At the end of August 2022 Mrs X contacted MASH. She sought advice on what to do as Ms Z had died and there was nobody with parental responsibility for Y. She wanted to continue caring for Y. Later on the same day Mrs X was told somebody from her local children’s services team would contact her to arrange a child and family assessment.
27. At the beginning of September 2022 a social worker from the children’s services visited Mr and Mrs X. She acknowledged nobody had parental responsibility for Y and advised Mr and Mrs X to get a Child Arrangement Order. Mr and Mrs X received some money towards Y’s clothes or equipment.
28. Following the Council’s referral, the Children and Family Court Advisory and Support Service (CAFCASS) completed a safeguarding check for Mr and Mrs X at the end of September 2022.
29. At the end of November the court issued an interim child arrangement order for Mr and Mrs X to care for Y.
30. A day later the Council carried out a child and family assessment with the recommendation of no further action from the children services.
31. At the beginning of February 2023 Mrs X complained about:
• the Council’s position that Mr and Mrs X cared for Y as a result of a private family arrangement;
• inadequate advice and support following Ms Z’s death;
• lack of carer’s assessment;
• lack of financial support.
32. The Council responded to this complaint at the end of February 2023.
33. At the beginning of March Mrs X asked the Council to consider her complaint at stage two of the children’s statutory complaint procedure.
34. IO and IP issued a final stage two report in mid-December 2023.
35. In the second half of May 2024 the stage three review panel agreed with IO’s recommendations and upheld most of Mrs X’s complaint. The panel also added some extra actions the Council should take:
• the children services should write a clear definition with specific criteria, of what a private family arrangement means;
• written information should be provided to families as a way of following up verbal communication, especially in the earlier stages of involvement;
• practitioners should practice a trauma informed process when dealing with recently bereaved families who are caring for children in these circumstances.
36. Mrs X contacted us a month later. She said the stage three review panel had told her to expect the Council’s adjudication letter in the second week of June 2024. She was distressed about the Council’s further delays to offer resolution for her complaint.
37. In its Adjudication letter the Council accepted all the review panel’s findings but declined granting Mr and Mrs X any backdated foster carer’s allowance as it stated they had never been assessed and approved as foster carers for Y. The Council failed to address Mrs X’s request for Y to be considered as a previously looked after child and offered some information around bereavement support instead.
38. At the beginning of July 2024 Mrs X told us that although she had received stage three complaint response from the Council, she was not happy with it. She objected to the Council’s not addressing her request to treat her and her husband as family and friends foster carers from the date of Ms Z’s death and to the Council’s refusal to pay them any financial support they would have got as family and friends foster carers.

Analysis

39. As explained in paragraph four of this decision when the children’s statutory complaint process has been completed, we would not normally re-investigate the complaint but look at the process and whether a council properly considered the findings and recommendations of the independent investigation and review panel.
40. The only failings I found with the Council’s children’s statutory complaint procedure are significant delays with stage two and some delays within stage three of the process. This is fault. It caused injustice to Mrs X as she had to wait longer for the resolution of her complaint and was increasingly frustrated by the delays. She spent much time contacting the Council for the updates. In the Adjudication letter from the beginning of July 2024 the Council accepted its fault and apologised. It also confirmed it had procured more independent people to carry out stages two and three for the children’s statutory complaints.
41. I consider Mrs X should also receive a symbolic payment for her distress caused by the Council’s delays.
42. To address Mrs X’s concerns about the Council’s failure to accept Y should have been considered a looked after child from the end of August 2022 until the court issued the interim child arrangement order, I need to decide whether the Council legitimately exercised its discretion when considering Y’s circumstances at the time. If so, unless obviously unreasonable, we would accept the dispute is about the merits of the Council’s decision.
43. A child’s need for accommodation is one of the triggers of the Council’s duty to provide accommodation to this child. If all the conditions of Children Act 1989 section 20 are met, this may determine the child’s status as a looked after child even if the Council does not in fact provide the accommodation. As explained in the case law quoted in paragraph 20 of this decision this may be the case when the Council takes the leading role in making the arrangements for the child to live with a family or friends.
44. In this case, although nobody had parental responsibility for Y after Ms Z’s death, by the time the Council was contacted Mr and Mrs X had already cared for her. Through its MASH assessment the Council satisfied itself there were no risks to Y’s safety beyond the potential risks from Y’s father which Mrs X reported. In the circumstances the Council:
• could have legitimately concluded Y did not require accommodation from the Council;
• did not have to take the leading role in making arrangements for Y to be placed with Mr and Mrs X as she had already been cared for by them.
45. The Council has already accepted its failings in not providing Mrs X with comprehensive information and advice, which would make her aware of all the options available to her after taking over Y’s care. It would be too speculative to consider which one she would have chosen at the time and whether there were any negative financial consequences for her. The uncertainty of what Mrs X might have decided and whether this would have meant better financial support is her injustice. I consider the Council should acknowledge Mrs X’s injustice not only by an apology, which it has already offered, but also by a symbolic payment.
46. I consider the service improvements identified during the investigation of Mrs X’s complaint are sufficient. The Council has confirmed it would carry them out.

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Agreed action

47. To remedy the injustice caused by the faults identified in addition to the remedies offered within stages two and three of the children’s statutory complaint process, we recommend the Council within four weeks of my final decision pay Mrs X £700 to acknowledge her injustice caused by the delays within the complaint process and other failings accepted by the Council.

The Council should provide us with evidence it has done so.

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Final decision

48. I uphold Mrs X’s complaint. I found fault in the Council’s delays with the children’s statutory complaint procedure and failure to offer adequate remedies for Mrs X’s injustice caused by the Council’s failings. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman