The Ombudsman's final decision:
Summary: The Council was not at fault for its consideration of whether to extend Ms B’s transitional special guardianship support payments. Ms B did not provide information to justify an extension of the payments. We cannot look at Ms B’s complaint that she did not agree her support plan before becoming a special guardian, because the Special Guardianship Order says she did, and we cannot question a court order.
- The complainant, whom I refer to as Ms B, is a special guardian of her sister, whom I refer to as C. She fostered C until becoming a special guardian in 2018.
- Ms B complains that her special guardianship allowance has been reduced, after her skills band payments – which foster carers receive to recognise their training and experience – ended two years after the Special Guardianship Order (SGO).
- Ms B says the Council did not give her a copy of her support plan before she became a special guardian, so she did not know she would lose the payments.
- Ms B says she would not have become a special guardian if she had known this in advance – she would have stayed as a foster carer for C.
The Ombudsman’s role and powers
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. If we are satisfied with a council’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)
How I considered this complaint
- I considered information from Ms B and the Council. Both parties had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should have happened?
- Regulation 7 of the Special Guardianship Regulations 2005 says remuneration for former foster carers can be made if agreed in advance of the SGO, and can only continue for two years except in exceptional circumstances.
- The Children Act 1989 Representations Procedure (England) Regulations 2006 say complaints about the provision of financial support to special guardians are subject to the statutory children’s complaints procedure.
- Getting the best from complaints – the document which tells councils how to administer the statutory children’s complaints procedure – says the procedure is not an appeal, and it cannot overturn a court’s decision. It is for a council’s complaints manager to decide whether someone’s complaint about court can be considered under the procedure.
- In August 2018, the Council completed C’s special guardianship support plan in advance of the court hearing. The plan says, “[Ms B] is currently in receipt of 55.23 as per her skills band. [She] is aware that these payments will cease 2 years after the SGO is granted”.
- Shortly afterwards, the court issued an SGO. The court order says, “The proposed Special Guardian … was satisfied with the accompanying support plan”.
- In September 2020 the Council ended Ms B’s skills band payments, which reduced her overall allowance. She complained about this, but the Council refused to consider her complaint, saying she agreed the support plan in court and it could not overturn a court order.
- However, the Council offered to review her circumstances to see if she needed any extra support.
- The Council wrote to Ms B in October 2020, and again in January 2021, asking her to provide information for its review. Ms B did not provide this information.
- Although Ms B says she did not agree in advance to her skills band payments ending in 2020, the SGO says she did.
- I cannot question a court order, so I cannot question whether Ms B agreed to the support plan in 2018. Which means I cannot investigate most of her complaint.
- Although complaints about special guardianship support are covered by the statutory complaints procedure, the Council was not at fault for refusing to look at Ms B’s complaint. The Council’s complaints manager is responsible for deciding whether a complaint about court can be considered under the procedure (given that the Council cannot overturn court orders). The Council’s decision does not appear obviously unreasonable.
- The Special Guardianship Regulations say that, although payments made to former foster carers should only continue for two years after the date of an SGO, they can continue in exceptional circumstances. Because of this, if a special guardian complains to a council about their skills band payments ending, the council should consider whether their circumstances are exceptional enough to justify further payments.
- The Council offered to review Ms B’s financial circumstances, and wrote to her to request information, but she did not respond.
- I can only expect the Council to take reasonable steps to consider whether someone has exceptional circumstances. If the person does not provide necessary evidence, the Council cannot decide they need extra support.
- Because of this, I have found no fault with the Council.
- If Ms B feels her circumstances justify her skills band payments being extended, she can provide evidence to the Council to show this. It will then be for the Council to decide whether she needs a higher allowance.
- The Council was not at fault for its consideration of whether to extend Ms B’s skills band payments. Ms B did not provide information to justify an extension of the payments. I cannot look at Ms B’s complaint that she did not agree her support plan before becoming a special guardian, because the SGO says she did, and I cannot question a court order.
Investigator's decision on behalf of the Ombudsman