Summary: Mrs X complained about how the Council considered her complaint about its change in policy for adoption allowance and special guardianship allowance through the children’s statutory complaint procedure. The Council was at fault for delays in the statutory children’s complaints process. It was also at fault for failing to complete some of the recommendations made during the statutory complaints process. The Council agreed to write to Mrs X, apologise, and pay her £150 in recognition of the injustice caused by the faults.

The complaint

1. Mrs X complained about how the Council considered her complaint about its change in policy for adoption allowance and special guardianship allowance. She says the Council did not have all the historic paperwork and so it could not properly consider her complaint.
2. Mrs X says the Council’s decision has caused her financial difficulties, distress, and uncertainty.

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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. 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)
6. 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

7. I spoke to Mrs X and considered information she provided.
8. I considered information provided by the Council.
9. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Statutory children’s complaints procedure

10. 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.
11. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
12. 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.
13. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
14. 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.
15. 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.

Our role after a children’s statutory complaints process

16. 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.
17. 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.

Special guardianship orders and allowances

18. Special Guardianship is an order made by the Family Court that places a child or young person to live with someone other than their parent(s) on a long-term basis. The person with whom a child is placed will become the child’s Special Guardian.
19. Government guidance on the Special Guardianship Regulations sets out the circumstances in which councils should provide financial support to a Special Guardian. These include situations where there is a financial obstacle to a guardianship arrangement being made, and where the child requires special care. There is no overall obligation on councils to provide support in every case in which a Special Guardianship Order (SGO) is made.

Adoption allowance

20. The Adoption Support Services Regulations 2005 set out the circumstances in which an adoption allowance may be paid to adopters. This includes where it is necessary to ensure the adoptive parent can look after the child or where the child needs special care.
21. Where an adopter applies for an adoption allowance the council should carry out a financial assessment. The adoption allowance should be reviewed at least annually, and a fresh financial assessment completed.
22. An additional adoption allowance payment may be agreed to meet a specific need for a specific period. Councils can also agree exceptional payments which may be necessary in exceptional circumstances. The payment of an Adoption Allowance is discretionary and is subject to assessment and based on the individual needs of the child. Such allowances are means tested.

What happened

Background

23. The below is not everything that happened. It is a summary of key events.
24. Mrs X has two children, Y and Z. Mrs X adopted Y several years ago. Later, Mrs X obtained a Special Guardianship Order (SGO) for Z and became his special guardian. Mrs X received adoption allowance and special guardianship allowance (SGA) from the Council for the children. Z has additional educational needs and disabilities which affect his health and development.
25. In 2021, the Council changed the way it calculated payments for special guardians. It updated its policy and used a calculation developed by the Department of Education. The tool was also used for adoption allowance.
26. In early 2022 the Council wrote to Mrs X and told her it had completed a re-assessment of her finances for adoption allowance and special guardianship allowance regarding Y and Z. It said it decided to stop paying her adoption allowance for Y, and to reduce the SGA payment for Z.
27. Mrs X disagreed with the Council’s assessment and asked how the Council had decided to reduce the payments. She told the Council about Z’s special educational needs and disabilities and explained historically the Council told her she would receive both payments until the children were 18 if the family’s income did not change, which it had not.
28. In February 2022 the Council wrote to Mrs X and told her it decided to reduce her payments gradually over four years. Mrs X disagreed and challenged the decision. The Council wrote to Mrs X and said it would continue with Mrs X’s payments at the same rate as the 2021/22 financial year, which would later reduce over four years.

Mrs X’s stage one complaint

29. In August 2022 Mrs X remained dissatisfied with the Council’s response to her financial assessment and submitted a formal complaint. She explained the family circumstances and said she did not understand how the Council had reduced her payments as there had been no change in her circumstances. She said she should have been paid at the same rate as a foster carer but was not.
30. The Council responded 27 working days later and told Mrs X it did not uphold her complaint. It said the payments were means tested and it had made the determination based on a new model and informed Mrs X of this by letter in 2019 and 2021. It said it had agreed a gradual reduction in payments over four years to lessen the impact of the decrease in funding. It said if Mrs X wanted an allowance by exception, she would need to request an assessment by a social worker.
31. Mrs X met with the Council to discuss her concerns. The Council agreed to a needs-based assessment for Y and Z for an allowance by exception.
32. The Council completed a telephone assessment of the children’s needs in November 2022. The outcome of the assessment was that Z would benefit from a referral to the early help team.

The Council’s stage two investigation

33. Mrs X escalated her complaint to stage two of the statutory complaints process. She complained about the outcome of the financial assessment.
34. The Council appointed an Investigating Officer (IO) and an Independent Person (IP). They met with Mrs X in October 2022, discussed the complaint, and agreed a “statement of complaint”.
35. The IO considered all of the available documentary evidence, interviewed key Council staff members, and Mrs X. They completed the investigation in December 2022. The investigation did not uphold any of Mrs X’s complaint. The IP agreed with the IO’s findings. In relation to Mrs X’s complaints, they found the Council’s decisions about the allowances were in line with the relevant legal framework and statutory guidance.
36. While the IO did not uphold Mrs X’s complaint, they made some recommendations for the Council to improve its service based on their investigation. The recommendations included:
1. the complaints team should seek advice form children’s social services at the start of the complaints process to reduce delay. The Council should meet with Mrs X to discuss the matter of her finances;
2. the Council should prioritise training for children’s services staff regarding allowable expenses and ensuring clear communication with service users. Officers should be clear what is and what is not an allowable expense; and
3. the Council should review recent caselaw in relation to SGA payments.
37. The Council sent its adjudicating letter to Mrs X in January 2023, 81 working days after Mrs X’s stage two request. It told her it would implement the recommendations from the report.
38. Later that month, the Council agreed to a further allowance by exception for Y and Z. It wrote to Mrs X and told her it would continue to pay her SGA and adoption allowance until a review of her finances took place in 2023.

Mrs X’s stage three complaint and stage two complaint addendum

39. Mrs X wrote to the Council and said the complaint remained. She raised a further complaint that she had been historically underpaid. She said she felt she should have received level three foster payments for the first two years of the special guardianship order.
40. The IO wrote an addendum report. They did not uphold Mrs X’s complaint because there was no evidence the Council agreed to pay a higher rate of special guardianship allowance for Z, although the IO recorded because of the significant amount of time since the special guardianship order was made, some records were unavailable.

Stage 3 panel

41. The Council held a stage three panel in May 2023. Mrs X told the panel she felt disadvantaged because she had not been provided with a copy of Y and Z’s historical support plans made when the adoption order and special guardianship orders were made, and so they had not been considered as part of the investigation.
42. The panel considered the stage two investigation reports, Mrs X’s representations and some additional documentary evidence provided by the Council. It did not uphold any of Mrs X’s complaints. It found the stage two process was followed correctly and was based on the information that was available. The panel made some additional recommendations for the Council. These included:
1. consider whether the telephone assessment of Z’s needs in deciding Early Help was appropriate was sufficient, or whether there is a need for a face-to-face assessment;
2. dependent on the outcome of recommendation 2, ensure either the 0-25 team or the early help team undertake an assessment of Z; and
3. update the Council’s website to include information about special guardianship, including SGA.
43. The Council’s adjudicating officer wrote to Mrs X 22 working days later and said the Council agreed with the panel’s findings. It said it would implement the recommendations.
44. The Council later allocated a social worker to Z to complete an assessment of his needs.

Mrs X’s complaint to us and the Council’s response to our enquiries

45. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.
46. In response to our enquiries, the Council said:
1. it had recently consulted with kinship carers about its policy changes and anticipated the updated policy would be ready in December 2023;
2. following the social work assessment in November 2022 there had been a system error which meant a letter generated by the early help team offering support was not sent to Mrs X;
3. it had not implemented the recommendation from the stage two panel about training for staff in error, but it had recently passed the information to the relevant service area for implementation;
4. a social worker was allocated to Z after the stage three panel, but the assessment had not yet been completed; and
5. it had written to Mrs X in October 2023 to say because the new policy had not yet been implemented it would continue to pay her the allowance by exception for both Y and Z until late March 2024. It would then conduct a new financial assessment.

Analysis

47. It is not our role to reinvestigate matters which have already been subject to a properly conducted and independent investigation. To do so would not be a good use of public resources. Instead, our role is to consider the following:
1. Was the investigation properly conducted and are the conclusions evidence based. If not, would the Ombudsman reach a different view based on the information available to us?
2. Did the Council offer a proportionate remedy for the injustice caused by fault? If not, would the Ombudsman recommend any further remedial action?
3. Has the Council fully implemented any agreed remedy? If not, has the delay caused any further injustice to the complainant?
48. The stage 2 investigation and stage 3 panel review were properly conducted. The IO reviewed the appropriate information, spoke to Mrs X and carried out interviews with the relevant officers. Their findings were evidence based and the recommendations appropriate. The adjudication officer agreed with the IO’s findings. The stage three panel properly considered Mrs X’s representations and the evidence presented. It found that stage two investigation was conducted appropriately. Therefore, the overall findings of the children’s statutory complaints procedure can be relied upon. I have not investigated them further.

Implementation of stage two recommendations

49. The Council has provided evidence it had completed some of the stage two recommendations.
50. However, the Council did not implement the recommendation about training for children’s services staff regarding allowable SGA expenses. This was fault. In response to our enquiries, it said it had now passed the recommendation to the relevant service area. It should provide us with evidence it has completed the training.
51. In addition, the Council accepted it failed to send a referral letter from the early help team to Mrs X in November 2022. This was fault, and caused Mrs X uncertainty about the support she would be provided.
52. In relation to the final recommendation, at time of writing the Council is reviewing its special guardianship allowance policy. The evidence seen demonstrates the Council is actively engaged in completing the recommendation. The Council should provide us with evidence it has implemented the new policy.

Implementation of stage three recommendations

53. The Council has provided evidence that it had completed some of the panel’s recommendations.
54. The Council said it had started the assessment of Z’s needs and it would complete it soon. The Council should provide us with evidence it has completed the assessment of Z’s needs.
55. The Council has started the process of updating its website with information about special guardianship and SGA. This cannot be completed until the Council has completed the review of its special guardianship policy. The Council is actively progressing the matter which will take time. This is not fault, but the Council should provide us with evidence it has completed this action.
56. The recommendations to the Council were made at stage two 12 months ago, and at stage three 7 months ago. The Council said it agreed to the recommendations and it has had sufficient time to implement most of the recommendations. Its failure to complete all the recommendations in good time is fault and caused Mrs X frustration.

Complaints process delays

57. The Council responded to Mrs X’s stage one complaint after 27 working days. The Council should have responded within 20 working days. That was fault.
58. The Council completed the stage two statutory complaints process after 81 working days. The Council should have completed the stage two process in a maximum of 65 working days. It did not do so, and that was fault.
59. The Council held a stage three panel after 74 working days. It should have held the panel within 30 working days. This was fault.
60. The Council sent its final stage three adjudication letter 22 working days after the panel meeting. It should have sent the letter within 20 working days. This was only a slight delay but added to the cumulative delay and was fault.
61. The above faults are a cumulative 144 working days of delay. This caused Mrs X frustration and uncertainty.

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Agreed action

62. Within four weeks of the final decision the Council agreed to:
1. write to Mrs X and apologise for the frustration and uncertainty caused by its delay in the statutory complaints process, and in implementing some of the recommendations, and by its failure to offer early help support in November 2022;
2. pay Mrs X a symbolic payment of £150 to acknowledge the frustration and uncertainty caused by the 144 working day delay in the statutory children’s complaints process;
3. provide us with evidence of how it has implemented the stage two panel’s recommendation about training for children’s services staff regarding allowable expenses;
4. provide us with evidence it completed the stage three panel’s recommendation to complete an assessment of Z’s needs;
5. provide us with evidence of its updated policy regarding special guardians; and
6. provide us with evidence it has updated its website with information about special guardianship and special guardianship allowance.
63. The Council agreed to provide us with evidence it has complied with the above actions.

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Final decision

64. I ended my investigation. I found fault and made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman