Council to examine whether it has short-changed local kinship carers after ombudsman finds failings

A council is assessing whether it has short-changed local kinship carers after the local government watchdog found it wrongly failed to treat three relatives who stepped in to care for their nephew and niece as foster carers.

The Local Government and Social Care Ombudsman found that, if not for the carers, the two siblings, who were on child protection plans, would have gone into care because their parents could not look after them. However, Bournemouth Christchurch and Poole (BCP) Council treated the situation as a private arrangement, meaning the three relatives were not recognised, or financially supported, as foster carers, the watchdog said.

The ombudsman also said the council should check whether other family carers had been similarly disadvantaged since April 2019, when BCP came into existence*, and, if so, to tell the watchdog whether it would backdate their fostering allowances.

Recommendations

BCP has accepted this and the ombudsman’s other recommendations to:

• Pay the family members – Ms X, her partner, Ms Y, and Ms X’s sister, Ms D, – what they should have received between March 2017 and September 2019 when they acted as foster carers.
• Make an additional payment of £750 to Ms X and to Ms Y and of £300 to Ms D for “the avoidable distress and time and trouble” they were caused.
• Provide legal funding for Ms X and Ms Y’s application for a special guardianship order.
• Make a further payment of £1,000 for each child because of the council’s failure to offer support over this time.
• Apologise to Ms X, Ms Y and Ms D for the faults identified.

“In this case it is quite clear that had the relatives not taken the children under their wings, they would have needed state care, so the council should have treated their relatives as friends and family foster carers,” said ombudsman Michael King.

“It is to the council’s credit that it has readily accepted my recommendations, and I hope the changes it will now make will ensure relatives’ situations are made clear when they take on the role of foster parents in future.”

What the law says

Case law, in the shape of the 2007 Court of Appeal judgment in London Borough of Southwark v D, states that if a council plays a major role in making arrangements for a child to be placed with a relative, then they would likely be acting under their Children Act responsibilities to accommodate the child.

In such a case, they would have to treat the relative as a foster carer and remunerate them accordingly, with statutory guidance requiring that family and friends carers are paid no less than unrelated foster carers would be. For it to be considered a private arrangement, the Court of Appeal said that the relevant council must make clear that those with parental responsibility remained financially responsible for the child.

In this case, the ombudsman found that the council proactively made arrangements for the children to be cared for by the relatives, meaning it was acting under the Children Act and the relatives should have been treated as foster carers.

The two children were placed on child protection plans, under the category of neglect, in 2016, after police found them home alone twice. Council notes show that, after nine months on the plans, it felt that the parents’ care was not good enough. The social worker felt a legal planning meeting should be held to see if there were grounds to issue care proceedings, though this was not supported by her team manager.

Instead, in March 2017, the council obtained the mother’s consent for the children to be placed with Ms X and Ms Y for an initial six-week period, with the social worker making checks on the couple and visiting the children at the home after they moved.

Council ‘acting under child protection duties’

“The council was acting under its child protection duties and it acted proactively to arrange the children’s removal from their parents’ care to Ms X and Ms Y’s care,” the ombudsman’s report concluded. “Further, the council had indicated that the children would likely come into care if the family did not step in.”

The children returned to their parents’ care in July 2017, after they had been taken off the child protection plans, with the council then putting them on child in need plans.

However, a few months later, a family friend found the children hungry and scared with their parents intoxicated, and took them to stay with Ms D and their maternal grandmother. The ombudsman said that, had the police been called, it was likely they would have removed the children, placing them in the care of the council.

In December 2017, the children moved back to Ms X and Ms Y’s house. Though at the time, the council insisted that the family’s care of the children was a private arrangement, its case notes indicated that, but for the extended family, it would have had to have provided accommodation for the children under section 20 of the Children Act or initiated care proceedings if the parents had refused that.

Relatives ‘should have been regarded as foster carers’

“The council placed the children with the family and therefore both Ms D and Ms X and Ms Y should have been regarded as family foster carers,” the ombudsman found.

The watchdog said that, as a result, the relatives did not receive a family fostering allowance as they should have done. Even after a council complaints panel found, in April 2019, that it should have treated the family members as foster carers, the authority maintained that it had not been responsible for placing the children with them.

Though BCP then offered Ms X £13,783 as a token payment for the financial impact of caring for the two children, £5,000 for the cost of therapy for the children and £1,715 towards the legal costs of making a special guardianship order application, she said this was insufficient as it had not accepted responsibility for the placement.

However, following publication of the ombudsman’s report, BCP corporate director of children’s services Elaine Redding said it accepted the findings.

“We accept the conclusions of the investigation undertaken by the ombudsman and had already undertaken many of the actions set out in the report published today,” she said.

“On behalf of BCP Council I offer an unreserved apology to the family in this case and we have written to them making clear we will be addressing the issues as outlined in the report.”

‘Allowances must be made fair’

Charity Kinship said it should be easier for carers to access payments.

“Too many kinship carers are being plunged into poverty when they step up to raise someone else’s child, because financial support is opaque, inadequate and unfair,” said Lucy Peake, the charity’s chief executive.

“It is wrong that kinship carers are having to fight for the financial support they are entitled to. Allowances for all kinship carers must be made fair, consistent and transparent.”

* Though much of the case predated BCP’s creation in April 2019, it is the responsible council for the acts or omissions in this case.