The Ombudsman's final decision:
Summary: Mr X complained the Council failed to properly advise him about the care options or financial support available when it placed his nephew with him. Mr X complained he did not receive the correct allowances or fostering fees which caused him financial difficulties. The Council’s failure to provide Mr X with sufficient information to enable him to make an informed decision regarding the SGO and the support he would receive amounts to fault. This fault has caused Mr X a significant injustice.
- The complainant, whom I shall refer to as Mr X complained the Council failed to properly advise him about the care options or financial support available when it placed his nephew with him in March 2018. Mr X complained he did not receive the correct allowances or fostering fees which caused him financial difficulties. He asserts the Council’s policy for the Calculation and Payment of Special Guardianship Allowances is inconsistent with the Special Guardianship Regulations and is therefore unlawful.
- Mr X also complained the Council failed to act in accordance with the legislation regarding placements with connected people who have only temporary approval.
- In addition, Mr X complained the Council dealt with his complaint under its corporate complaints procedure, rather that the statutory complaints procedure.
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 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)
- 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.
How I considered this complaint
- considered the complaint and the documents provided by Mr X;
- made enquiries of the Council and considered the comments and documents the Council provided;
- discussed the issues with Mr X
- Mr 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
- A Special Guardianship Order (SGO) is a court order that gives a carer parental responsibility for a child. The Special Guardianship Regulations 2005 set out the Council’s duties when an SGO is made including possible support services such as counselling, advice, information, and financial support.
- The financial support provided is called Special Guardianship Allowance. The regulations set out how this should be calculated and that it should have regard to the amount of fostering allowance which would have been paid if the child were fostered. The assessment must also take account of the child’s needs and the family’s financial resources, including benefits and outgoings.
- Financial support cannot generally include payment of remuneration to the special guardian. However, Regulation 7 provides that where special guardians were previously foster carers and they received an element of remuneration in the financial support they received, councils may continue to pay that element of remuneration for two years from the date of the SGO. Government Guidance states:
“The purpose of the two year transitional provision is to enable local authorities to maintain payments to foster carers who become special guardians, at the same rate as they received when they were fostering the child. This should give the family time to adjust to their new circumstances”.
- Regulation 13 says financial support paid under the Regulations cannot duplicate any other payment available to the special guardian. In determining the amount of any financial support councils must take account of any benefit or allowance available to the person as a result of becoming a special guardian.
The Council’s policy
- The Council’s policy for the calculation of payment of special guardianship allowances states it makes additional financial provision to foster carers who become special guardians and are eligible for an SGO allowance. It will pay special guardians any fee-based component of the fostering allowance they received as foster carers for a transitional period of two years from the date of the SGC.
- The Policy states the amount payable will reduce during the two year period as follows:
- 0-12 Months 100% of any fee element paid
- 12-24 months 50% of any fee element paid
- 24 months onwards No payment of any fee element
What happened here
The Council placed Mr X’s nephew, Z with him in March 2018, and approved Mr X as a temporary Connected Person Foster carer in April 2018. The Council paid Mr X a fostering allowance of £134 per week. Part of process to be approved as a foster carer was a medical examination. The Council sent Mr X’s GP a medical form for completion in May 2018. Mr X was also required to complete a two day ‘Skills to Foster’ training course.
- In addition to assessing Mr X as a foster carer, the Council also assessed Mr X as a special guardian. Mr X states the Council encouraged him to become Z’s special guardian, but did not fully explain what this would involve, or the support he would receive. He states the Council did not provide any information about other options for Z’s care and he felt pushed into becoming a Z’s special guardian. The Council completed the SGO assessment on 12 September 2018 and recommended Z remain in Mr X’s care.
- In September 2018 a fostering panel considered Mr X’s application to become a foster care but was unable to approve it as it had not received his medical assessment. Mr X states he was told the approval would go ahead behind the scenes once the medical report was received.
- The Council’s records state it completed a new financial assessment for the SGO in November 2018 and asked Mr X to chase his GP for the medical report. The Council received Mr X’s medical report on 10 December 2018 and the Court granted Mr X an SGO for Z on 17 December 2018.
- Mr X states he was not aware the financial support he received would reduce following the grant of the SGO. In January 2019 the Council wrote to Mr X advising he would receive £70 per week once his claims for child benefit and child tax credit were in place. Mr X states it took some time for the claims to be set up and this unexpected reduction in the allowance caused him financial difficulties.
- In the summer of 2020 Mr X joined an SGO support group who told him he should have received additional allowances as Z’s foster carer. Mr X contacted the Council to query this, and an officer advised him he did not receive the additional fee as he had not completed the required training. Mr X asserted he had completed the training and made a formal complaint.
- The Council responded to Mr X’s complaint and confirmed that he had not received the two week allowance that should have been paid when Z was first placed in his care. It apologised for this error and paid Mr X £270.
- In relation to the fostering fee the Council stated Mr X had not completed the two day training course. It noted he had left the first day’s training early due to an incident at home, and that he had then completed one day’s training at home. The Council stated attempts to support him in completing the training had been unsuccessful. As he had not completed the training, he would not receive the fostering fee.
- Mr X was not satisfied by the Council’s response. He asserted he should have received the equivalent to the fostering fee in addition to the allowance he received prior to the SGO, and that he should have continued to receive the fee for two years after the SGO was granted. Mr X also complained the Council had not told him what he needed to do to be paid the fostering fee or that the fee could continue to be paid after the SGO. Had he been aware, Mr X would have ensured he had done everything required for the fee to be paid and would not have proceeded with the SGO until he was receiving the fee.
- In addition Mr X complained the Council had not complied with the legislation regarding placements with connected people who only have temporary approval.
- The Council considered Mr X’s complaint at stage two of its complaints process. It confirmed councils could decide whether to pay a fostering fee, but if they did, this should be paid to family carers in the same way as non-family carers. The Council only paid this fee to carers if they had been approved by the fostering panel and completed the Skills to Foster training.
- It reiterated that the fostering panel could not approve Mr X as a foster carer in September 2018 as his medical report was not available. The Council stated there was not sufficient time between receiving Mr X’s medical on 10 December 2018 and the SGO being granted on 17 December 2018 to approve Mr X as a foster carer. It noted the biggest factor in the delay was Mr X’s delay in making an appointment with his GP. The issue of the two day training would then only have been relevant had Mr X been approved as a carer.
- As Mr X was not an approved carer and had not completed the required training the Council would not agree to backdate the fostering fee.
- However, the Council accepted it was not clear from its records that it had advised Mr X that securing an SGO before being fully approved as a foster carer and completing the training would make him ineligible for the additional SGO allowance. As a gesture of good will the Council offered to pay Mr X the full amount he would have been entitled to had he been fully approved and completed the training prior to securing the SGO. The Council calculated this to be £7020.
- The Council acknowledged that the Care Planning, Placement and Care Review Regulations 2010 state that if the connected person carer has not been approved after 16 weeks and an additional 8 week extension the authority must terminate the placement. It stated the Council would have been reluctant to end Z’s placement with Mr X as the likely alternative would have been mainstream foster care until Mr X was approved. The Council states that any delay in acting on this regulation would have been taken with Z’s best interests at heart.
- Mr X questioned the Council’s calculations. He asserted the Council should not deduct child benefit or child tax credit, and that he should receive the full fee for two years. He asserted the Council was acting contrary to the Regulations in reducing the fee to 50% in the second year. In addition, Mr X noted the offer of £7020 did not take account of the fact the fostering fee had increased in November 2019.
- The Council recalculated the goodwill payment to reflect the increase in the fee. This sum was now £7,700 and the Council paid Mr X the additional sum.
- The Council declined to refer Mr X’s complaint to stage three of its complaint process. Mr X was unhappy the Council had not dealt with his complaint under the children’s statutory complaints process. The Council confirmed it had accepted Mr X’s complaint as a corporate complaint as it related to the fees he received as a foster carer, not about the provision of service to a child. It noted Mr X was making a complaint in his own right, not on behalf of a child. The Council was satisfied it had taken appropriate action to investigate and address his concerns, and that it had provided a complete response.
- Mr X remains dissatisfied and has asked the Ombudsman to investigate his complaint. He maintains the Council failed to properly advise him and has not calculated the SGO allowance correctly. Mr X asserts the Council should not have deducted child benefit or child tax credit from the allowance for the first two years and should not have reduced the fee element to 50% in the second year. Mr X would also like the Council to pay backdated fostering fees for the period before he was granted the SGO.
- Although Mr X would not have wanted Z to be removed form his care, he remains concerned the Council breached the Care Planning, Placement and Care Review Regulations 2010 by not ending the placement after 24 weeks.
- In response to my enquiries the Council has reiterated that the Regulations allow councils to continue to pay special guardians the fee element of financial support they had received as foster carers for two years from the date of the SGO. But there is no requirement that a council continues these payments. The Council states it has adopted a phased approach to enable special guardians to adjust to a decrease in income in steps over the two year period. It considers this is a sensible and measured approach intended to support special guardians.
- The Council states its policy is inline with that of neighbouring authorities and is consistent with the spirit of the guidance.
- The Council states that all requests for temporary approval of a connected person foster carer are considered by the Fostering Agency Decision Maker. Assessments are tracked by the Children in Care team manager and there are clear checkpoints within the assessment timeframe and supervisory process. Any extensions to the 16 week timeframe must have the agreement of the Care team, the Independent Reviewing Officer and Team Manager and be noted to be in the best interests of the child.
- The Council states it would be reluctant to end placements for children living within their birth family or network if they can be safely supported to remain there. The Council states it would consider the child’s legal status, consideration of possible alternative arrangements and a detailed analysis of the child’s needs, vulnerabilities and how these could be supported.
- In relation to its consideration of Mr X’s complaint, the Council has reiterated it accepted Mr X’s complaint as a corporate complaint as it was in respect of the fees he received as a foster carer, not about the provision of service to a child. It noted Mr X was not making a complaint on behalf of a child, but in his own right as a foster carer.
- Both Mr X and the Council have responded to the draft decisions. Mr X maintains the Council encouraged him to take an SGO, with no discussion of any other options available or the financial implications. He was only 21 when the Council placed Z with him, and states the Council was aware of the difficulties he would face but did not support or properly inform him.
- Mr X states the Council did not explain the implications of not being approved as a foster carer or not completing the training course and failed to encourage or facilitate this. Mr X states the Council’s failings have placed him a significant financial disadvantage.
- He asserts it was the Council’s responsibility to ensure that all the relevant action is taken within 16 weeks of Z being placed with him. Had it done so and supported Mr X in becoming an approved foster carer he would have been entitled to receive the additional fee before becoming a special guardian.
- In its response to the draft decisions the Council refutes it failed to comply with the Care Planning, Placement and Review Regulations. It states the requirement to terminate the placement does not apply where the connected person seeks a review of the decision not to approve them, until the outcome of the review is known. As Mr X requested a review following the panel’s decision not to approve him, the Council asserts it acted in accordance with the Regulations by not terminating the placement.
- The Council states that Mr X’s request for a review would have prompted a return to the panel, but at around the same time, there was an initial court hearing in relation to Mr X’s SGO application. At this hearing the court indicated that in principle Z would be made subject to an SGO in Mr X’s favour. The Council asserts this gave sufficient clarity as to the future arrangements for Z’s care to maintain the placement.
- The Council also notes that the Regulations require the Council to terminate the placement “after first making arrangements for C’s accommodation”. It asserts that while termination is not discretionary, the Regulations allow for the welfare of the child to be paramount in terminating the placement. The Council argues it made reasonable ‘arrangements’ for termination of the placement by virtue of the imminent judicial decision on whether to grant an SGO in Mr X’s favour. One consequence of which would be the immediate termination of the placement.
- The Council considers it acted appropriately and within the Regulations to minimise the disruption to Z.
- In addition, the Council asserts it only placed Z in Mr X’s care on 12 April 2018. It states that prior to that, Mr X was caring for Z under a private family arrangement with Z’s mother.
- Based on the documentation available I am not persuaded the Council provided Mr X with sufficient information to enable him to make an informed decision regarding the SGO and the support he would receive. Nor am I persuaded that Z initially came into Mr X’s care under a private family arrangement or that the Council did not accommodate Z until 12 April 2018.
- The courts have looked at whether an arrangement for a child to live with a relative or friend was truly a private arrangement. The Court said where a council takes a major role in making arrangements for the child to be fostered it is likely to conclude it is acting under its duties to provide the child with accommodation. If the council is simply facilitating a private arrangement the Court said councils must make it clear to all parties that those holding parental responsibility for the child were responsible for the financial arrangements to care for the child.
- In this instance the Council was involved because Z was subject to a Child Protection Plan and the Council had oversight of his care. The Council’s records show a social worker visited Z’s mother on 15 March 2018 as there were concerns about her care for Z. The social worker telephoned Mr X and arranged for him to care for Z, they also implemented a safety plan for these arrangements and restrictions on Z’s mother being able to see him. This is not indicative of a private family arrangement, but rather that the Council was actively involved in the arrangements for Z’s care.
- There is no record that the Council told Mr X it was simply facilitating a private arrangement, and that he must look to Z’s mother for financial support. Or that any financial assistance from the Council would be at its discretion. Based on the documentation available I am satisfied the Council placed Z with Mr X on 15 March 2018. On this basis I would have expected the Council to have acted promptly to ensure Mr X was approved as a temporary foster carer as soon as possible.
- Similarly, there is no evidence in the Council’s records of any discussions regarding alternative ways in which Mr X could care for Z. The assessment document sets out why officers considered an SGO was preferred to a care order, child arrangement order or adoption, but there is no record of any discussion with or Mr X’s views on these options.
- Nor are there any records of discussions about the financial support Mr X would receive, either as a foster carer or as a special guardian. It is clear Mr X was aware of the need to complete a medical examination in order to be approved as a foster carer, and that training was available. But there is no evidence officers explained at the outset the implications of not being an approved carer or not completing the Skills to Foster training course on the financial support he could receive.
- Had Mr X been aware I consider it likely he would have taken the necessary action to ensure he received the fostering fee as soon as he was entitled and certainly prior to the grant of the SGO. The Council has retrospectively paid Mr X the equivalent of the fostering fee, in line with its policy for two years since the date of the SGO. This is to be welcomed, but I do not consider it sufficient.
- Mr X would like the Council to make backdated payments of the fostering fee for the period prior to the grant of the SGO. Mr X was not eligible for the fostering fee until he was an approved foster carer and had completed the training. The documents show the Council delayed in providing Mr X with the medical form, and Mr X then delayed in contacting his GP to arrange an appointment to complete the medical. There were also delays due to Mr X’s GP changing to an electronic record system. The Council paid the GP’s invoice in mid-August 2018 but did not receive the medical report until 10 December 2018. Whilst the Council was not responsible for all these delays, there is no evidence it attempted to speed up the process or that it assisted Mr X in completing the medical and obtaining the report. Nor did the Council explain to Mr X the consequences of this delay. Had it done so, I consider it more likely than not that Mr X would have acted to complete and obtain the medical report with much more urgency.
- Mr X is unhappy the Council did not support him in completing the training, for example by providing child care so that he could attend the full sessions. I note that the Council arranged for one day of the training to take place at Mr X’s home, to assist him, but again there is no evidence the Council explained the implications of not completing this training. Mr X has completed other training offered to foster carers, and I consider that had he been aware of the importance of completing the ‘Skills to Foster’ training course he would have done so as soon as possible.
- I consider it more likely than not that had Mr X been fully informed he would have taken action to ensure he was approved as a foster carer within the standard 16 week temporary approval period. In the circumstances I consider the Council should pay Mr X the equivalent of the fostering fee from 5 July 2018, that is 16 weeks after the placement commenced.
- Mr X questions the lawfulness of the Council’s policy to reduce the fostering fee in the second year following the grant of the SGO. Payment of the fostering fee is a matter of the Council’s discretion. In the absence of any legal requirement for councils to pay this fee, the Council could have adopted a policy not to pay the fee at all. Further, while there is statutory guidance and case law confirming council’s cannot reduce the fostering allowance it pays to SGOs, there is no equivalent guidance or case law to prevent the reduction of the fostering fee. In the circumstances, I do not consider its policy of reducing the fee in the second year amounts to fault.
- In addition, Mr X questions the lawfulness of the Council’s action in deducting child benefit and child tax credit from the SGO allowance during the first two years following the order. Mr X asserts he should have been paid the allowance in full during this period to ensure parity with allowances paid to foster carers. However the Special Guardian Regulations and guidance are clear that the financial support cannot duplicate any benefits available to the special guardian.
- Had the Council continued to pay the full allowance once Mr X was in receipt of child benefit and child tax credit/ the child element of Universal Credit there would have been a duplication of payments. It would also have meant that he received more than foster carers, who are not eligible to claim this benefit/credit. The Council’s deduction of this benefit/ credit was in line with the Regulations.
- In response to the draft decision the Council has provided further documentation regarding its assessment of Mr X as a foster carer and action taken in line with the Care Planning, Placement and Case Review (England) Regulations 2010.
- Regulation 25 is clear that where the period of temporary approval and of any extension expires and the connected person has not been approved as a foster carer, the council must terminate the placement. However the Regulations are also clear that if a carer receive a qualifying determination that they are not going to be approved as a foster carer and they request a review, their temporary approval remains in place until such time as a final decision is made.
- Mr X’s request for a review is undated, but the Council has confirmed it was received within the required timeframe. As such it would not have been appropriate to immediately end the placement.
- I also accept the Council would have been open to censure and criticism from the court had it removed Z from Mr X’s care given the court’s in principle agreement for an SGO in Mr X’s favour. I do however consider an element of contingency planning would have been appropriate. Until all the outstanding information was presented to the court there could be no guarantee the SGO would be granted.
- I consider the Council was at fault in not investigating Mr X’s complaint under the statutory complaints process. Government guidance “Getting the Best from Complaints” confirms that complaints about financial support for special guardian are included within the scope of the statutory complaints process. The Council should therefore have considered Mr X’s complaint under the statutory complaints process. Whilst the failure to do so amounts to fault, I do not consider this in itself has caused Mr X a significant injustice. The Council has investigated Mr X’s complaint and taken action to address his concerns.
- As a result of the fault outline above Mr X has experienced distress, anxiety, and financial difficulties. He has also been put to unnecessary time and trouble in trying to resolve the matter. The Council’s goodwill payment goes some way to remedy this, but I consider an additional payment is appropriate.
- The Council has agreed to apologise to Mr X and pay him £500 in recognition of the distress, anxiety, and financial difficulties he has experienced and the time and trouble he has been put as a result of the Council’s failure to properly advise him about the SGO and the support available to him.
- The Council has also agreed to pay Mr X the equivalent of the fostering fee for the period 5 July 2018 to 16 December 2018.
- The Council should take this action within one month of the final decision on this complaint.
- In addition, the Council has agreed to:
- provide training / reminders to ensure staff provide prospective special guardians with sufficient information to understand the support available and to make informed decisions. Staff should also be reminded of the need to ensure there are contemporaneous records of the advice / information given.
- provide training / reminders to ensure staff dealing with complaints are aware of the circumstances when the statutory complaints procedure should be used for special guardianship complaints.
- The Council’s failure to provide Mr X with sufficient information to enable him to make an informed decision regarding the SGO and the support he would receive amounts to fault. This fault has caused Mr X a significant injustice.
Investigator's decision on behalf of the Ombudsman