Summary: Miss Y complains the Council wrongly withdrew a proposed package of extended financial support for a Special Guardianship Order (SGO). The complaint was investigated through the statutory complaints procedure but did not conclude with the outcomes Miss Y hoped for. In our view, the investigation was thorough and evidence based but there is some outstanding personal injustice which the Council has agreed to remedy.

The complaint

1. Miss Y complains about the Council’s decision to revoke a proposed financial package to support her special guardianship of D. As a result, Miss Y says she has no other choice but to remain as D’s foster carer. She is concerned that D will therefore remain as a looked after child for longer than needed and will be subject to an unnecessary level of social work intervention. Miss Y says this is not in D’s best interests.
2. Miss Y has pursued a statutory complaints investigation about her concerns. She remains dissatisfied with the outcome and considers that her points were not properly and impartially considered.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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)
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)

Back to top

How I considered this complaint

6. During my investigation I discussed the complaint with Miss Y and considered the information she provided.
7. I made enquiries of the Council and considered its response.
8. I consulted the relevant law and guidance, which I have referred to in this statement.
9. Miss Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Law and guidance relevant to this complaint

Financial support for special guardians

11. Some family and friends carers decide to go to court (sometimes with the help of the council) to gain a Special Guardianship Order (SGO) for a child. This would mean the child is no longer a ‘looked after child’. It would give the person with the order some, but not all, parental responsibility for the child. The carer would then be free of the oversight placed on looked after children and their carers. It would allow them to decide such things as the child’s health matters and schooling. Government intended special guardianship as one way to give a firm footing on which to build a lifelong relationship between the child and their carer.
12. Special Guardianship Guidance and Regulations 2005 explain when councils can pay support to a special guardian or prospective special guardian. This includes situations where it is necessary for the guardian to look after the child, where the child has special needs with extra costs and where necessary to adapt or alter a home. These are decisions for the council to make based on the circumstances.
13. The regulations say councils must consider other benefits available to the guardian and child, the guardian’s financial resources, the amount of money they realistically need and the child’s financial needs and resources. This is called means testing.
14. Councils should have regard to the amount of fostering allowance that would have been paid if the child had been fostered when deciding what to pay. A means test should use this maximum payment as a basis for decisions. As foster carers cannot have child benefit and child tax credit, councils usually take off an amount from the fostering allowance when calculating the maximum available special guardianship allowance before means testing.
15. Where special guardians were previously approved as foster carers, councils must pay them the fostering allowance for a maximum of two years after the order is made, unless the council decides it is necessary having regard to the exceptional needs of the child or any other exceptional circumstances.
16. This approach is echoed in the Council’s own policy ‘Financial Payments for SGO’ which says, “Special Guardian’s will continue to receive a financial payment, equivalent to the fostering rate for their child (less child benefit, which the Special Guardians will claim themselves once the order is granted) for the first two years post order” and, “At the end of the two year period, carers will revert to the current means tested model and will be paid a weekly amount depending on their financial situation (see section 3, Assessment for Financial Support). For many carers this will likely mean no change, whereas for others it will mean a reduction in the money they receive from Children’s Social Care”.

Statutory complaints procedure

17. Section 26(3) of the Children Act (1989) says all functions of the Council under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure. Complaint investigations under the statutory procedure consist of three stages:
• Stage 1: Staff within the service area complained about try to resolve the complaint.
• Stage 2: An Investigating Officer (IO) and an Independent Person (IP) investigate the complaint within 25 days or 65 days, if extended. The IO writes a report which includes details of findings, conclusions and outcomes against each point of complaint (i.e. “upheld” or “not upheld”) and any recommendations to remedy injustice to the complainant.
• Once the IO has finished the report, a senior manager should act as adjudicating officer. They will consider the complaints, the IO’s findings, conclusions, and recommendations, as well as any report from the IP, and the complainant’s desired outcomes. The adjudicating officer should write to the complainant with their decision on each complaint (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
• Stage 3: A review panel considers the complaint. The panel must consist of three independent people. Following the panel, the members write a report containing a brief summary of the representations and their recommendations for resolution of the issues (The Children Act 1989 Representations Procedure (England) Regulations 2006 19(2)).
• The council must send its response to the panel’s recommendations to the complainant within 15 days of receiving the panel’s report. The response should set out how the council will respond to the recommendations and what action it will take. If the council deviates from the panel’s recommendations it should explain its reasoning in the response (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).

18. The regulations specify the IO should be independent. They may be an employee of the Council but should have not been involved with the subject matter of the complaint. To ensure impartiality, the process is also overseen by an IP, who is neither an elected member nor an employee.
19. Unless there is evidence of fault in the investigation process, the Ombudsman will not usually re-investigate a complaint which has been through the full procedure. This is because a properly conducted investigation is independent and robust.

Brief background of key events relating to the complaint

20. Miss Y is a foster carer for her nephew, who I will call D.
21. Miss Y said she would like to explore the possibility of pursuing a SGO, provided she has sufficient financial support. The Council completed its financial means test in October 2021 which concluded that Miss Y would not be eligible for financial support beyond the two-year transitional period because she received earnings above the threshold.
22. Despite this, Miss Y received the following email on 2 March 2022 from a social worker:

“Some SGO applicants were given a no detriment offer and others not. There are new Heads of service in York who have been looking at this. I have now been given the all clear to continue with your application as a no detriment offer which will mean you will be funded until [D] is 18, they are also putting a new team together to support SGO carer’s until the child is 18, this will be overseen by the adoption team. This will allow SGO carer’s access to the adoption fund should they need extra support in the future as the children mature”.

23. The Council later revoked the proposal following the appointment of a new senior officer.
24. Miss Y raised concerns about the high level of staff turnover at the Council and multiple changes to the allocated social workers. Due to the frequency of the changes, Miss Y says her training record is incorrect and out of date.
25. Miss Y made a complaint to the Council which it assigned to stage two of the statutory children’s complaints procedure.

Stage two findings

26. Miss Y wishes to complain about the findings made in relation to three of her seven complaints. I will not revisit all the complaint headings; only those which Miss Y remains dissatisfied with.

Complaint one: the Council wrongly revoked the bespoke package of financial support offered to Miss Y for D.

27. Miss Y says the Council revoked a generous package of financial support which it had offered via email on 2 March 2022. When the Council revoked the offer, it did so orally and without proper explanation.
28. During a Child in Care review on 14 October 2022, Miss Y asked the Council why it changed its position about the financial support available. Miss Y says the Council told her it did not want to set a precedent for all special guardians.
29. The IO interviewed D’s Independent Reviewing Officer (IRO). They confirmed verbal discussions took place about D’s financial offer and the Council was reviewing its policies to offer certain carers a higher level of financial support if this was deemed to be in the child’s best interests. The IRO said this was not documented anywhere and only discussed orally.
30. The IRO also gave their view there was a lack of clarity about the removal of the offer and they had raised concerns with the senior officer who made the decision.
31. The IO also interviewed the senior officer who made the decision. They said the decision to make a discretionary financial offer for D was made by a previous manager. In September 2022 the senior officer reviewed the proposals and said it was not possible to agree this for D because it was against the regulations which states that a “no detriment” offer will be for two years, after which point the support is subject to means testing.
32. Had the Council agreed to proceed with the discretionary offer, the senior officer said it would create inequity between special guardians.
33. The IO also interviewed D’s supervising social worker. They considered the offer was wrongly revoked as it was not in D’s best interests to remain in foster care.
34. Another social worker also told the IO that in early 2022 the Council had an objective to try and secure SGOs for foster carers and one of the suggestions was to offer financial support for the chid until the age of 18. The social worker recalled discussing the discretionary offer with Miss Y on two occasions.
35. The IO reviewed the case notes, relevant emails and records of meetings. These all confirmed that the Council’s initial proposal was to offer discretionary financial support to D until the age of 18.
36. In conclusion, the IO found the Council had not committed to the offer in writing. The email sent in March 2022 outlined the social worker’s intention to proceed with the SGO application, which was still subject to management approval. However, the Council’s initial proposal was not underpinned by the regulations which say that financial support for special guardians is reviewed at least annually. On this basis, the IO said the Council cannot guarantee the provision of financial support until D is 18.
37. Although the IO acknowledged the negative impact the events had on Miss Y, they found the decision was not in breach of procedure and in line with appropriate management oversight regarding long-term financial support for carers.

Complaint three: the Council has not provided regular statutory visits.

38. The IO referred to the Council’s policy ‘social work visits to children in care’ which says that, following the first year of a child in care’s new placement, visits should be: “at intervals of not more than 6 weeks, however where a child is in a designated long-term foster placement, after the first year visits may take place at intervals of not more than 6 months”.
39. After reviewing the relevant files, the IO found that, once Miss Y moved into the area in September 2020, the Council completed the following visits:
• Two video calls between April and June 2020 during the first national COVID-19 lockdown.
• Visits every one to two months between 1 March and 22 October 2020.
• One visit on 16 April 2021
• One visit on 24 September 2021
• One visit on 9 September 2022. A social worker’s report dated 14 October 2022 stated, “9 September 2022 visit out of timescales”.
40. The IO found there were significant gaps between visits in 2021 and 2022 which professionals acknowledged in October 2022. Consequently, the IO partially upheld the complaint because some earlier visits were within timescales.

Complaint five: the Council did not consider the needs of D when revoking the discretionary financial offer.

41. Miss Y says the Council has failed to consider the individual needs of D, and the senior officer’s decision to revoke the offer was based on the desire not to set a standard for other carers.
42. At interview the IRO gave their view that it is not in D’s best interests to remain under the care of the local authority. D’s needs are met by Miss Y, and he is thriving. Both social workers shared a similar view at interview and said they agreed it was not in D’s best interests to revoke the offer. They said D needed stability and would not benefit from remaining as a looked after child with different social workers coming in and out of his life.
43. With that said, the IO maintained their view that the Council had acted in line with procedural expectations and that management have the final decision about discretionary financial offers. The IO did not uphold the complaint.

Desired outcomes and IO’s recommendations

44. Miss Y expressed several desired outcomes, which I will summarise below alongside the IO’s recommendations:
1. Miss Y would like the Council to reinstate the discretionary offer made to her. The IO did not support this outcome because they said the Council’s decision was based on current legislation and established procedures.
2. Miss Y would like the Council to appoint a permanent social worker to ensure stability and consistency for D. The IO said their investigation revealed several changes and inconsistences with social work support. The IO acknowledged the Council may not be able to guarantee the permanent allocation of the same social worker due to staff shortages, but made a recommendation for the Council to appoint a permanent social worker for D and a supervising social worker for Miss Y.
3. Miss Y would like a letter of apology and explanation from the senior manager about their decision to revoke the financial offer. The IO found it was not within a social worker’s gift to write to Miss Y setting out a discretionary offer. The email was not a formal offer, but notification of the Council’s intention to complete the application process. As a recommendation, the IO asked the Council to review the support available to Miss Y and consider a wider review to determine if the Council has correctly and clearly communicated the current SGO guidance with all foster carers pursuing a SGO.
45. The Independent Person (IP) endorsed the IO’s findings and shared their view that the report was robust and evidence based.
46. The Adjudicating Officer (AO) wrote to Miss Y on 3 February 2023 confirming their agreement with the IO’s findings.

Stage three findings

47. Miss Y wrote to the Council on 30 March 2023 setting out her disagreement with the IO’s findings. The Council arranged a stage three review of the complaint, and the panel meeting went ahead on 23 June 2023. Miss Y attended the open session of the meeting. She presented her concerns and had the opportunity to ask questions.
48. Miss Y confirmed that she would like the panel to review the findings for complaints one, three and five. The panel agreed it would not review the other complaints. The panel found:
• The email sent to Miss Y on 2 March 2022 could be misunderstood as a formal offer. Although the offer had not been approved, the communication gave the impression it was a simple matter. The social worker acted outside of their remit, but with good intention. However, the panel decided complaint one should remain as not upheld because the Council had correctly and fairly followed the regulations and procedure when calculating financial support for Miss Y.
• The AO recommended the finding for complaint three to be changed from partially to fully upheld. The panel agreed.
• The panel was satisfied the Council had considered the needs of D within the legal framework. Although the Council can share a proposal to seek an SGO, it is ultimately a decision for the court. The panel decided complaint five should remain as not upheld.
• Miss Y is now allocated to a permanent social worker. Managers monitor the frequency of visits via a new dashboard system to ensure compliance with statutory timescales.
• The AO offered their apologies on behalf of the Council in the adjudication letter sent on 3 February 2023.
49. The panel also recommended:
1. The Council to provide Miss Y with a copy of the relevant SGO carers policy and financial assessment tool used to calculate whether carers are eligible for financial assistance, using the DfE model of assessment.  
2. The Council is to ensure that it provides Miss Y with details of support available to the family in their local area.
3. The Council to identify what needs updating on the training record should be completed and the training record updated within 12 weeks of the date of the stage 3 final response.

The LGSCO’s analysis

50. As the first section of this statement sets out, 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?

Complaint handling

51. Miss Y raises a number of concerns about the handling of her complaint. I will deal with each in turn:
• Miss Y says the investigation significantly exceeded the timescales outlined in the statutory guidance. The IO report was published 80 days after the complaint was allocated at stage two, and 92 days after Miss Y first made her complaint. The Council bypassed the first stage of the complaints procedure and commissioned a stage two investigation instead. Furthermore, the stage three panel took place three months after Miss Y’s request. The statutory timescale is 30 days. This delay created avoidable time and trouble for Miss Y.
• The IO’s report was issued in a draft form. It contained comments from the IO’s manager during a quality assurance process. The Council has already apologised for this, which I consider is a proportionate remedy.
• Miss Y says the IO was not even-handed because they did not consider all the relevant files. She says the IO asked her to provide supporting evidence but did not ask the Council to provide evidence to support its claims. Having considered the report, I do not uphold this complaint because it is clear the IO reviewed an appropriate range of records and interviewed the relevant officers. The IO’s report is evidence based.
• Miss Y said it was inappropriate that the AO was the senior officer who revoked the proposed financial offer. She said this presented a conflict of interest and possible bias. The statutory guidance says: “The Adjudicating Officer should normally be a senior manager, reporting to the Director responsible for Children’s Services”. The guidance does not say the AO must be unrelated to the matters being complained about and so I do not uphold this complaint. Furthermore, the AO changed the finding for complaint three from partially upheld to fully upheld and so it evident they adopted a fair and open-minded approach.
• With that said, the AO’s letter was poorly drafted and contained errors. For example, the AO did not set out their decision to change the finding for complaint three and this was only confirmed at the stage three panel. The AO also failed to sign the letter.

Remedy

52. When discussing the complaint with Miss Y, it was clear that her primary aim is to ensure that she and D receive appropriate support so that she can continue providing a high level of care on a long-term basis. The Council has acknowledged that D is thriving within a very stable placement with Miss Y. She believes it is within D’s best interests to remain in her care, but without the level of social work intervention which they are currently subject to. This view was echoed by the two social workers and the IRO interviewed by the IO.
53. It was also accepted – at all stages of the complaint investigation – that Miss Y received an email on 2 March 2022 regarding a proposed discretionary package of support to be provided until D turns 18. At interview, the social workers also confirmed this proposal was discussed on several occasions until the new senior officer revoked it.
54. The stage three panel acknowledged the social worker’s email could have been worded differently because it gave the impression it was a simple matter which the social worker had received the “all clear” to continue with. The email did not say the decision was subject to manager’s approval. In my view, the wording of the email wrongly raised Miss Y’s expectations. Consequently, when the proposal was not approved, Miss Y experienced confusion and distress which could have been avoided.
55. Furthermore, the decision to revoke the proposal was made with very little explanation or discussion with Miss Y. In my view, the Council did not properly explain to Miss Y what factors it considered when the second senior officer arrived at a different decision to the first senior officer. However, I note the senior officer did propose a meeting with Miss Y, which she declined. I therefore consider there was an opportunity for Miss Y to discuss her concerns and ask questions about the decision.
56. Although I acknowledge Miss Y’s disappointment and frustration, I do not consider the Council is duty bound to honour its initial proposal. As the IO and stage three panel both found, the Council’s approach to the financial assessment of Miss Y was procedurally correct. Therefore, there were no grounds to recommend the reinstatement of the financial package initially proposed. I agree with this finding which was evidence based and followed a review of the regulations, relevant files and interviews with officers.
57. While the stage two investigation was properly conducted and produced evidence-based findings, it is my view that Miss Y experienced personal injustice which has not yet been remedied. For the reasons explained in paragraph 54, Miss Y’s expectations were wrongly raised which caused her some injustice. The Council should make a symbolic payment of £250 in recognition of the distress.
58. I am satisfied the other elements of the agreed actions have been completed by the Council following the letter sent to Miss Y on 18 September 2023.

Back to top

Agreed action

59. Within four weeks of my final decision, the Council will provide evidence to show it has:
• Paid £250 in recognition of the distress caused to Miss Y when the Council raised her expectations because of poor communication; and
• Paid a further £150 in recognition of the significant delays during the complaints investigation.
60. Within eight weeks of my final decision, the Council will provide evidence to show it has:
• Contacted Miss Y to ask whether she would like to complete an updated SGO financial assessment. This may be beneficial in light of recent changes to her household’s circumstances;
• Reminded relevant social workers to manage expectations and to be mindful of how they communicate with carers about financial offers which remain subject to management approval. This could be through a briefing paper, team meeting or part of a training session; and
• Reminded those involved in statutory children’s complaint investigations, and investigating officers, of the timescales in the statutory guidance. This could be through a briefing paper, team meeting or part of a training session.

Back to top

Final decision

61. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions listed above will, in my view, provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman