Children’s rights legal digest – July 2022

In April 2022, the Local Government and Social Care Ombudsman published a decision about a council’s failings connected to payment of savings to two children who were previously in care. The complaint, made by a foster carer on behalf of two children she was looking after, was upheld.

While the Ombudsman’s decision centred on the injustice caused to the children and their foster carer through significant delays and other administrative failings, we take this opportunity to set out the relevant law and government guidance to assist those advocating on behalf of care experienced children and young people. We know through our work with advocates and children’s rights officers that access to savings is one of the issues children and young people seek help with.   

Council at fault for delaying payment of savings to two care experienced children

In April 2022 the Local Government and Social Care Ombudsman upheld a complaint made by a foster carer on behalf of two previously looked after children. The complaint was brought to the Ombudsman in May 2021 by Mrs X, a foster carer to two children, because the council responsible for the children failed to pay money saved for the children while they were in care.

Mrs X first complained to the council in May 2021 saying the children were owed money saved for them while they were in care. The council responded in September that year, stating it was in contact with a fostering agency “to try to locate the savings”. Two months later, the council wrote to Mrs X to let her know it had found two cheques sent by the fostering agency, but they could not be processed because they had been issued in the children’s, not the council’s, names. Despite the council saying it had asked for amended cheques to be sent, no progress was made and Mrs X approached the Ombudsman.   

After investigating the complaint, the Ombudsman found significant delay by the council and failure to offer updates to the complainant. This has meant “the two children have been without their savings for longer, which is likely to have caused them some frustration”.

Upholding the complaint, the Ombudsman recommended payments of £50 to each of the two children to remedy the frustration caused by the delay and £100 to the foster carer to remedy the time and trouble she went to in pursing the complaint on behalf of the children. The Ombudsman recommended both payments be made within a month of the date of his decision.

You can read the full decision here: Royal Borough of Greenwich (21 015 281)

Relevant law and government guidance

  • Primary legislation

Children Act 1989: The general duty to safeguard and promote the welfare of looked after children expressed in section 22, along with continuing duties towards former relevant children expressed in section 23C, apply.

Children and Social Work Act 2017: The corporate parenting principles set out in section 1 and the duty to publish a local offer for care leavers expressed in section 2 are also relevant.  

[There are additional duties that apply within specific settings where children live, including foster care – see standard 12 of the Fostering Services: National Minimum Standards (which relates to the general duty expressed in section 22 of the Children Act 1989). 

  • Government guidance

Statutory guidance – Junior individual saving accounts for looked-after children (last updated in April 2022) – covers ‘the junior ISA scheme for looked after children’ (which replaced the support previously provided through the Child Trust Fund (CTF)). It states:

“A Junior ISA will be opened for every child (if they do not already have one) who has been looked after for any continuous period of 12 months or more, starting on or after 3 January 2011 and who is not eligible for a CTF. The government will provide an initial £200 payment to open the accounts. Junior ISAs are long-term tax-advantaged saving accounts launched in November 2011 for children up to the age of 18 who are not eligible for a CTF. Children are eligible for a Junior ISA if they are under 18, resident in the UK, and not eligible for a CTF. Anyone can pay money into the accounts, but the funds cannot then be accessed by the account holder until their 18th birthday. At this age, the account will mature into a standard (adult) ISA.”

This statutory guidance relates to the general duty towards looked after children expressed in section 22 of the Children Act 1989 and it must be followed by: social workers, personal advisers, social work managers, lead members (councillors), directors of children’s services, independent reviewing officers and commissioners of services for care leavers and looked after children.

Statutory guidance – Local offer guidance: guidance for local authorities (2018) – issued to support the implementation of local authority duties under sections 1-3 of the Children and Social Work Act 2017 states local authorities should provide care leavers with information on how to access money held in Junior ISA or Child Trust Fund.

The Children Act 1989 guidance and regulations Volume 3: planning transition to adulthood for care leavers – contains important statutory guidance in relation to local authorities’ financial policies for care leavers:

– A clearly written and transparent financial policy should be in place, setting out children and young people’s entitlements, what (if any) conditions are attached to these entitlements and how financial help will be made (para 8.4).

– The financial policy should be reviewed by the local authority every year. It should set out “how the local authority as a ‘good corporate parent’ will assist” the child or young person in respect of their finances, to help them into their adulthood (para 8.5).

– The policy should also be clear about the treatment of child or young person’s own funds, for example from employment, inheritance, Criminal Injuries Compensation Authority awards, or anywhere else (para 8.6).

– The policy should be accessible and easily understood by children and young people – it should be published on the local authority’s website and a copy should be given to all looked after children and care leavers (para 8.7). It should be reviewed every year and “be open to independent audit and scrutiny” (so it can be improved), by the Children in Care Council or “an appropriate consultative advisory body” (para 8.13).

Paragraphs 8.8 onwards set out the matters that should be covered and prioritised in a local authority’s financial policy.