The Ombudsman's final decision
Summary: Mr and Mrs X complain they were overpaid foster carer payments for six months after a child left their care. This caused them frustration and stress. In their view, they were also owed some payments. There was fault by the Council for the overpayments and unclear communication, but there was no evidence Mr and Mrs X were entitled to any outstanding money. The Council has agreed to provide them with an apology and agree a reasonable payment plan.
The complaint
The complainants, whom I refer to as Mr and Mrs X, complained the Council overpaid foster carer payments to them from September 2021 to March 2022. Mr X said he thought payments were owed to them for holidays and respite not taken during the pandemic, as per their contract, which he said should be deducted from the total they will pay back. He said this has caused frustration, stress, and embarrassment for them.
The Ombudsman’s role and powers
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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I discussed the complaint with Mr X and considered his views.
I made enquiries with the Council and considered its written responses and information it provided.
Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What happened Prior to 2018, Mr and Mrs X were registered as foster carers under a programme the Council had at the time, called “Flipside”. These were short term placements for young people with complex needs. Foster carers under this programme were given a fostering allowance and were paid an enhanced fee in recognition of their work.
In December 2017, a child, whom I refer to as Y, moved into a foster placement with Mr and Mrs X.
Following a consultation period starting in May 2018, the Flipside programme ended due to a new structure within the Fostering Service. A letter dated 17 August 2018 confirmed a meeting took place with Mr and Mrs X to inform them of this. The Council had agreed the enhanced Flipside fee would continue until Y, who was still in their care, moved placement.
In October 2018, a foster carer review took place with Mr and Mrs X. The Council’s meeting notes said there had been discussion about Flipside ending which had been demoralising for Mr and Mrs X. The recommendation stated Mr and Mrs X should be approved as “Mainstream Foster Carers (Flipside terms and conditions re [Y])”. This was signed by Mrs X.
In May 2019, a letter was sent by the Council stating unused holiday would no longer be paid to all “Level Three/Enhanced carers” and “the decision to take this action is due to your current placements having been either converted to permanent…and those placements where although permanency has not been formally agreed, these have been classed as long term placements”.
In November 2019, Mr and Mrs X transferred to the new terms of their mainstream fostering agreement.
On 1 September 2021, Y left Mr and Mrs X’s care.
In February 2022, Mr and Mrs X provided care for a respite placement for two weeks.
On 11 March 2022, the Council was going to pay £851.87 to Mr and Mrs X for this respite placement and found it had mistakenly continued to pay them the enhanced fee fortnightly since Y had left six months previously.
The Council rang Mrs X to advise the respite payment would not be paid due to the overpayments made to them, and this would be deducted from the total they owed.
On 15 March 2022, Mr and Mrs X complained to the Council saying they acknowledged payments had been made to them after Y had left. But they thought it was for the notice period, a retainer, payment for holidays and respite care not taken because of Covid-19, and sick pay for Mrs X. In their view, there was confusion as they were the last carers on the old Flipside agreement.
In April 2022, the Council’s Stage One response said: the four week notice period was paid; foster carers are self-employed and so are not entitled to sick pay; there was no agreement in place for a retainer payment and their current foster carer agreement did not include such provisions; the four week holiday pay for enhanced carers stopped in April 2019; a letter was sent to all carers detailing this change; the letter in August 2018 advised they would revert to the standard Level Two fee after Y had left their care; and for each payment made to Mr and Mrs X since September 2021, they had been sent a remittance advice slip confirming it was an enhanced fee payment, which was not queried by them.
Mr and Mrs X responded: they accepted the four week notice period had been paid; they had been assured the main terms from their Flipside contract would remain until Y had left. They wanted the monetary value of unused holidays and respite to be taken off the total; they had not looked at the payslips due to a period of sickness; and they had not received the letter outlining the holiday pay change. After bringing it up with their social worker they received an undated and unsigned letter which said holidays were not carried over but did not say they could not have paid holidays. It referred to long term carers, which in their view, they were not, as Flipside placements were short term but Y had only stayed in their care for longer than originally intended due to the pandemic.
In May 2022, the Council said it would not reconsider the complaint at Stage Two as the view on its findings had not changed.
Mr and Mrs X then complained to the Ombudsman. They wanted the Council to tell them how much money would be credited for unused holiday and respite, so the rest could be paid back via a repayment plan.
In response to my enquiries, the Council clarified the enhanced fee was the only continuation of the Flipside contract whilst Y was still being cared for by Mr and Mrs X.
Case records showed discussions had with Mrs X in 2018 about changes to the Flipside arrangement. She had raised concerns about support given to them and the change in income from Level Three enhanced payments to regular mainstream ones.
I reviewed the terms of the original Flipside agreement, signed by Mr and Mrs X. Under “Sickness” it stated: “During bouts of minor sickness, carers will be expected to retain day-to-day care for the young person, with extra support from the team if required. If it becomes necessary to move the young person due to the carer’s health, the carer’s payments will continue in full for two weeks”. The Council confirmed the sickness policy stopped when Mr and Mrs X transferred to the new agreement.
The Flipside agreement also stated carers had “four weeks paid annual leave per year”, and “carers are also eligible to apply for an additional two weeks allowance in order to meet the costs of taking the young person on holiday with them”. The Council said this holiday entitlement stopped with the new agreement.
There was no specific mention of respite in the Flipside terms. I have noted a term that the Council would “provide ‘Stay Away’ breaks, as and when required. These breaks will not affect carers’ payments, although a proportion of the young person’s allowance will transfer to the other carer if the period of time spent away exceeds 48 hours”.
I have seen a copy of the new agreement and there is no mention of holiday entitlement, or sickness. The Council did not provide me with one signed by Mr and Mrs X.
The Council’s “Fostering and Supplementary Allowances from 1 April 2018” policy said, “holiday allowance payments are paid once a year and are based on two week’s fostering allowance”. The Council confirmed this is not paid automatically and is claimed on an individual basis.
It also stated, “respite care (where a child is briefly moved to another foster home) may be necessary…because of a carer’s personal circumstances…both carers would be paid if the respite care is up to 48 hours in any one week”. The Council confirmed there is no fixed number of days for respite. Carers would take it as and when they needed it, with their payments continuing as normal.
The Council gave a breakdown of the overpayments; Mr and Mrs X received £14,370.10 in total when they should have received £3760.40. This resulted in an overpayment of £10,609.70. The £851.87 respite placement payment for February 2022 was deducted, leaving a total balance owed by Mr and Mrs X of £9757.83.
The Council said there was an internal error as the payments team did not receive notification to end the enhanced carer fee element on its systems.
Mr and Mrs X have paid a portion of the money back, with £5000 outstanding from the total amount owed.
Analysis Communication with Mr and Mrs X The Council said it had made its position clear to Mr and Mrs X, verbally and in writing; that only the enhanced fee would continue until Y left. Looking at the documents provided: The August 2018 letter confirmed this and also said, “after that time you will become mainstream foster carers as per the attached agreement and receive the Level Two fee”. It is not clear if this only referred to the fee aspect and could be interpreted as the new agreement and its terms only applying once Y had left.
In absence of a signed agreement, the Council provided me with meeting notes from October 2018, signed by Mrs X as evidence of her awareness to the new terms and conditions. However, the notes confirmed she and Mr X were approved to be “Mainstream foster carers (Flipside terms and conditions re [Y])”. It is not clear what is meant by this and is vague. The case note discussions are not detailed enough to take a view. I cannot verify exactly what was said to Mrs X here about what (if any) specific terms would change and what would continue; The letter dated May 2019 referred to unused holidays no longer being paid for. Mr and Mrs X were still receiving the Level Three enhanced fee at this point, so it applied to them. However, as it mentioned the placements as being “long term”, I can understand why Mr and Mrs X assumed it was not relevant to them. This may have been a standard letter sent to all Level Three carers who had long term placements. It could have been made clearer for Mr and Mrs X’s specific situation. But I have noted it would have been reasonable for Mr and Mrs X to have asked the Council further questions to clarify their position.
From the Council’s view, this was sufficient in informing Mr and Mrs X that only the fee element continued, not other terms from Flipside. From written evidence provided, it is unclear either way. I find fault by the Council with this poor communication and I recognise where there may have been uncertainty for Mr and Mrs X.
Flipside entitlement Based on the main terms of the signed Flipside agreement seen, I have considered what entitlements and provisions Mr and Mrs X would have had if the Flipside terms and conditions applied to them from 2019 whilst Y was still in their care: Four weeks holiday entitlement. There was no mention of what happened when it was unused in the terms here, but there was a change in May 2019 which applied to Mr and Mrs X. Considering this, if Mr and Mrs X had unused holiday entitlement from that point, the policy change meant this was unpaid. With holiday allowance, it is separate and is applied for on an individual basis. So if Mr and Mrs X were unable to take Y on holiday, then they would not be paid the additional allowance; it would not be owed to them.
There was a small provision for sickness, but I have not been told if Y was moved from the placement during the period Mrs X was sick. Therefore I cannot take a view on whether this would have applied to her at the time.
There was respite cover of up to two days without affecting payment, as and when carers needed it. It did not say this was a fixed number of days, so if respite was not taken; this would not be owed to Mr and Mrs X.
Whilst there was confusion as to what Mr and Mrs X thought they were entitled to, with the above, the evidence does not show they are currently owed holiday, sickness, or respite payments.
Conclusion
The communication from the Council was insufficient in properly explaining to Mr and Mrs X their standing with, and in between, their two fostering agreements. This led to a degree of uncertainty. However, even with this fault, I do not consider this has caused significant injustice to Mr and Mrs X. They have ended up in the same position as they would have done because they are not owed anything according to the agreements.
There was an administrative error that led to the incorrect overpayment to Mr and Mrs X; this is fault. The Council accepted even though the placement ended correctly, this was due to the way the system was set up for the enhanced fee separately. No instruction was received to end payments from it after Y left.
Mr and Mrs X said they did not look at the payslips because of a period of sickness and assumed the additional payments were owed to them. However, the payslips continued fortnightly over six months. With this regularity and over a long period, it is reasonable this should have alerted them to something being wrong.
The fault by the Council with the overpayments caused distress to Mr and Mrs X. Although there is injustice here, I am satisfied there is sufficient evidence to show money is not owed to Mr and Mrs X under the Council’s past and current fostering agreements. It is reasonable for the Council to ask for all of this public money to be repaid.
Agreed action
To remedy the injustice set out above, the Council has agreed to carry out the following actions: Within one month of the final decision: Provide Mr and Mrs X with an apology for the overpayments and unclear communication about their position with their fostering agreements; The Council will agree and maintain a reasonable payment plan with Mr and Mrs X for the rest of the amount they owe for the incorrect enhanced fee payments; and The Council will review why payments were not stopped appropriately when the foster placement ended and provide evidence of what steps it will take to ensure this does not occur again in future.
Final decision
I found fault with the Council which caused an injustice to Mr and Mrs X. The Council has agreed to take action to remedy this, and I have completed my investigation.
Investigator's decision on behalf of the Ombudsman