Summary: Ms X complains the Council failed to provide adequate support after she agreed to care for the children of a deceased relative. The Council is at fault and has caused injustice. It has agreed financial remedies and a policy review.

The complaint

1. The complainant, who I refer to hear as Ms X, states that after she began caring for A and B, the children of her deceased relative, the Council:
1. Delayed assessing the family for financial and other support; and
2. Delayed provision of A’s Education Health and Care Plan (EHCP) and other information about A’s special educational needs to Ms X’s home council, resulting in missed provision;
3. Agreed to fund a Special Guardianship Order (SGO) application for Ms X, then changed its mind, leading to a delay in Ms X’s application.
2. Ms X states she has suffered stress and anxiety while attempting, without support, to manage two children with challenging behaviours who had suffered a bereavement. The children missed out on provision and did not receive bereavement counselling. Ms X seeks compensation and reimbursement of the costs of a personal tutor for A.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

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How I considered this complaint

5. I spoke to Ms X and considered information provided by Ms X and the Council. I shared my draft decision with both parties and considered their comments before finalising my decision.

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What I found

The Government’s guidance on kinship care

6. Statutory guidance, Family and Friends Care, sets a framework for provision of support where children are brought up by members of their extended family or friends because their parents can no longer care for them. It covers children who are living with family member in informal arrangements over the short and long term where the family member does not have parental responsibility for the child.
7. The guidance states that a local authority does not have a duty to assess informal arrangements unless it thinks services are necessary to safeguard or promote the welfare of a child in need of additional support. In such circumstances the guidance directs councils to the Framework for the Assessment of Children in Need and their Families. The guidance states that this provides a model by which councils can satisfy themselves that informal arrangements are suitable to meet the needs of individual children.
8. The guidance further states that where family members are caring for a child who would otherwise be looked after, “it is essential that proper recognition and effective support are given to ensure the carers are able to safeguard the child and promote his or her welfare”.

Education, Health and Care Plan (EHCP)

9. An EHCP is a document which sets out the education, healthcare and social care needs of a child or young person for whom extra support is needed in school, beyond that which the school can provide. It also sets out the provision the Council will make to meet these needs.

Special Guardianship Order (SGO)

10. A Special Guardianship Order is a court order which places a child or young person with someone who is not their parent and gives this person parental responsibility for the child. The person(s) with whom the child is placed becomes their Special Guardian(s).

What happened

11. In March 2020 Ms X’s relative died suddenly, leaving two adopted children, A and B. A, who was seven at the time of her mother’s death, has special educational needs (SEN). The older child, B, was a patient of local mental health services at the time and known to the Council as a vulnerable child in need of a lot of support.
12. Ms X said she was advised by police that unless she agreed to care for the children they would need to enter local authority care. She said she therefore agreed the children could stay with her. The Council told me it viewed the placement of the children with Ms X as a private placement arranged with the family. It told me it decided this because it was not involved in arranging where the children went on the day of their mother’s death and only learned of the situation the next day through a third party.
13. A Council record from the day after the mother’s death noted that the children were staying with Ms X in a different council area (Council 2). A record from the Council’s safeguarding team shows a Council employee asked for a phone call to be made to Ms X to “establish a plan of support in the short term”.
14. The record notes that a social worker spoke to Ms X. It notes that Mrs X did not want the children separated and put herself forward as a carer for them but stated that she would require council support. The Council noted that an alternative carer had also put herself forward. Ms X was advised that the Council would carry out an assessment. The report noted the children may need further support following the assessment and that Ms X would also require support in gaining legal responsibility for the children.
15. The note concluded that the “Level 4 threshold has been met as the children have suddenly lost their adoptive mother and have no one with parental responsibility to care for them”. The Council categorised children according to tiers or levels of need at that time, with level 4 the highest level.
16. A further note made two days later said that “procedure is for an assessment to be completed to establish suitability prior to transfer to an SGO team”. In the same month, March 2020, the Council began an assessment of B.
17. Within three weeks of the children’s move to her home Ms X advised that she was unable to care for B, the older child. B was taken into police protection and then into local authority care.
18. Ms X began paying for private tuition for A while trying to arrange a school placement for her. In May the Council completed A’s EHCP. It has told me it did not send the EHCP to Council 2 until September because Council 2 did not respond to its request for the contact details of the relevant person in Council 2’s SEN team.
19. In June Ms X again asked the Council for support in caring for A. The Council contacted Council 2 about support for Ms X. Council 2 advised the Council had a duty to assess A and ensure her placement with Ms X was appropriate.
20. In late July – more than four months after Ms X had begun to care for A - the Council began a family and child assessment. The Council did not visit A until August. The assessment was completed in late August. The assessment noted that Ms X complained about a lack of support and guidance from the Council and that she felt A should have been assessed in March when her sibling B was assessed. She told the Council she had not been able to register A with a GP or the local school as she did not have parental responsibility. She also said A had started to display challenging behaviour which she felt was due to a lack of bereavement support.
21. The assessment noted A had no regular contact with B, whom she loves, and recommended that in future she should have regular contact. It recommended the family be supported under a Child in Need plan and that responsibility for A be transferred to Council 2.
22. The Council told me that in August and September it liaised with Council 2’s SEN dept about a school placement and interim tuition and supported Ms X to access an NHS mental health assessment for A. A was enrolled at school in the Council 2 area in January 2021.
23. During autumn and winter 2020 the Council exchanged emails with Council 2 about responsibility for A. Council 2 stated that the Council was under a duty to accommodate A as she was a child for whom no person had parental responsibility. It also criticised the decision to separate A and B without consideration of whether they would be better off together or apart, life story work and permanence planning.
24. The Council responded that A was in the care of Ms X under a private arrangement “arranged and agreed by the family” when it had learned of A’s mother’s death and had not been involved in making the placement.
25. In January the Council decided to transfer responsibility for A to Council 2. Council 2 contested this. The Council then agreed to fund an SGO assessment for Ms X. The Council told me its dispute with Council 2 over responsibility for A had an impact on the decisions being made in relation to funding the SGO application.
26. In June 2021 a court designated responsibility for A to the Council and issued an interim care order, which gave the Council parental responsibility for A. A continued to live with Ms X. The Council allocated Ms X and A a social worker.
27. Council 2 began Ms X’s Special Guardianship assessment in summer 2021. It told me it had provided financial support to allow Ms X to obtain legal advice on the SGO. The Council declined Ms X’s request that it cover the cost of A’s tuition before this was arranged with Council 2 in September 2020.

Analysis

28. In my view the Council wrongly treated the children as though they had been placed with Ms X via a private placement, arranged with the children’s family. There is no evidence this was the case. Ms X has stated that she made an emergency arrangement with the police.
29. The Council’s notes show that it was aware that both children were vulnerable, as their mother had just died and they had no-one with parental responsibility for them, and were likely to be in need of support. In line with the statutory guidance, the Council should have carried out a Child in Need assessment to establish whether Ms X was a suitable carer for B. Its early notes indicate an intention to carry out this assessment.
30. However, it did not then complete an assessment of A’s or Ms X’s support needs until August 2020, more than four months after A’s move to live with Ms X. During this period Ms X did not have parental responsibility for A and was unable to register her with a GP or school. This is fault by the Council, which caused injustice to both A and Ms X, who should have received an assessment and support sooner.
31. There is no evidence that the Council assessed the alternative carer who put herself forward to look after the children after their mother’s death or made a decision as to which would be most suitable carer. This is fault by the Council, which caused injustice to A.
32. On Ms X advising that she was unable to care for B, the Council immediately removed B into Council care, leaving A with Ms X. There is no evidence that it carried out an assessment as to whether separation was in the children’s best interests, or that it assessed the impact of the siblings being separated in the context of having recently lost their mother. This is fault by the Council, which caused injustice to A. The family assessment completed in August noted that A now rarely saw her much-loved brother and recommended regular contact. This recommendation should have been made sooner.
33. The Council delayed in sending A’s EHCP to Council 2 after it was completed, which in turn delayed Council 2’s understanding of her needs and hindered its ability to find her an appropriate school placement. It did so because Council 2 failed to respond to a request for contact details for its SEN team. This is fault by the Council, which caused injustice to A.
34. In response to my draft decision the Council told me that Council 2 was also at fault for failing to send the contact details and I should not imply that the fault was all the Council’s own. I have not investigated Council 2 and my view is that requests can often be missed, go missing or be overlooked. My view is that the onus was on the Council to proactively chase by email, telephone or look on Council 2’s website when it did not receive a prompt reply.
35. The Council’s dispute with Council 2 delayed its decision to provide financial support to Ms X to apply for an SGO. This is fault by the Council, which caused injustice to Ms X and A, in that no-one had parental responsibility for A for more than a year.
36. The Council has caused significant injustice to A and Ms X. I therefore recommended that the Council pays £2,000 to compensate for the distress caused and for Ms X’s time and trouble in bringing the complaint. This is a larger than usual award to reflect the likely lasting impact on the child of the Council’s failures at a time when she was exceptionally vulnerable and in need of support. The Council has agreed to this.
37. Council 2 did not accept responsibility for funding A’s tuition until after it had received the EHCP in September 2020. Had Council 2 received the EHCP sooner, Ms X would not have had to pay for tuition herself. The Council has agreed to reimburse Ms X for the cost of tuition for A prior to September 2020.
38. The Council has also agreed to review its policies on kinship and private placements to ensure they are in line with the Government’s guidance on family and friends care.

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Agreed action

39. Within one month of my final decision the Council will:
1. Pay Ms X £2,000 to remedy its failure to properly support Ms X and A;
2. Reimburse Ms X for her spend on private tuition prior to September 2020 and any outstanding legal expenses related to the SGO; and
3. Review its policies on kinship and private placements to ensure they are in line with the Government’s guidance on family and friends care.

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Final decision

40. I have completed my investigation with a finding of fault by the Council. It has agreed financial remedies and a policy review.

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Investigator's decision on behalf of the Ombudsman