Summary: Ms X complained about how the Council supported her during the Special Guardianship process. The Council was at fault for the delays Ms X encountered and the inconvenience and uncertainty these caused.

The complaint

1. Ms X complained the Council has not fulfilled what was agreed when she became Special Guardian for two young children (Child A and Child B). She said she is struggling financially to pay for nursey fees and her home and car are too small to accommodate her family. She said the Council is not adequately supporting her.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)

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What I have and have not investigated

5. I have investigated matters that occurred since February 2022, when Child B came to live with Ms X.
6. The law states I cannot investigate matters considered by the Courts surrounding the Special Guardianship Order (SGO) for Child B.
7. I cannot investigate matters being dealt with by the housing department in the Council where Ms X lives. This would be a separate complaint to the one about the Council that dealt with the SGO.

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How I considered this complaint

8. I have considered Ms X’s complaint and have spoken to her about it.
9. I have also considered the Council’s response to Ms X and to my enquiries.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The law

11. Some family and friends carers decide to go to court 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 controls 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.

Special Guardianship Guidance and Regulations 2005 (updated 2017)

12. The Special Guardian can ask councils for support. This may include a Special Guardianship Allowance (SGA). Any support, including financial, should be reviewed at least annually and could be removed. The starting point for calculating SGA, if a person qualifies for it under the Regulations, is the council’s fostering allowance rate minus child benefit and child tax credit. These are deducted because the Guardian can claim these benefits when professional foster carers cannot. The SGA is also means tested and the Guardian may end up receiving no allowance at all. Councils can depart from the fostering allowance as the starting point if it has ‘cogent reasons’ to do so. However, the courts have not yet found a case where the council could prove a good reason.
13. The council should have a policy on how it will means test the Special Guardian. The SGA is usually reviewed annually.
14. There are separate provisions for those Guardians who prior to the Order were the children’s foster carers, including family and friends foster carers. As part of the transitional payments for former foster carers to give them time to adjust to their new circumstances, councils may decide to pay them the foster carers remuneration element but can only do so for a maximum of two years unless the council decides it is necessary having regard to the exceptional needs of the child or any other exceptional circumstances.
15. For those carers who hold a Child Arrangement Order, a council’s ability to pay a Child Arrangement Order Allowance (previously Residence Order Allowance) is a power not a duty so it is a discretionary allowance. Some councils base the allowance around their fostering allowance rates but there is no statutory guidance or case law on what rates should be set, unlike SGA. If councils pay a Child Arrangement Order Allowance, then it is usually means tested and reviewed annually. Councils must have a policy showing when it would pay such allowance. The policy must also allow for exceptional reasons. Although discretionary, the courts have said that if a child was on the verge of becoming a looked after child before a Child Arrangement Order was granted then a council’s policy on Residence Order Allowance should take account of the duties it would have been under, as well as the means and needs of the family, when deciding whether to pay an allowance.

What happened

16. In 2020, Ms X became the Special Guardian for child A. In February 2022, A’s infant half-sibling (B) came to live with Ms X. Ms X became B’s Special Guardian in April 2022.

Background

17. Child B was a Looked After Child from October 2021 when she was placed in foster care as a newborn. The Council approached Ms X as she cares for B’s half-brother (A) who is subject to an SGO.
18. At the time when Ms X applied for SG of B, Ms X lived in a 2-bedroom property with her adult daughter and Child A. Ms X and her daughter shared a room and A slept in the second bedroom. Ms X’s older daughter had indicated that she wanted to move back in with her mother.
19. The Council’s SG Assessment highlighted the current living arrangements suited the family but with the addition of B, Ms X would need a larger property in 2-3 years.
20. Following a positive assessment, B came to live with Ms X in February 2022. At the time of Ms X’s complaint, she shares a bedroom with both A and B, and her older daughter has her own room.

Period leading up to the SGO being made.

21. In March 2022, the Council issued B’s final Care Plan. The Plan detailed the support services that Ms X and B would receive if the Courts granted the SGO. These services included:
• Access to universal services in relation to B’s health and education.
• Access to Pupil Premium and the Adoption Support Fund regarding B’s education.
• Support from a Special Guardian Support worker within the Family Partnership Team for Ms X.
• Access to the Family Partnership duty team for Ms X to access short term support, advice and signposting until B is 18.
• Financial support for Ms X.
• Access to carers’ training for Ms X.
22. Later in March, the Court made a Case Management Order which required the Council to confirm certain aspects of the SGO including:
• There will be no deductions from the current foster care allowance until Ms X has Child Benefit and Child Tax credit in place for B – the Family Partnership Team will support with this if needed and the Council will allow up to 8 weeks for this to be achieved.
• That there was a typographical error in the original financial assessment which made weekly deductions of the monthly Child Benefit amount.
• That the Council will supply Ms X with a letter of support to manage a move within her local Housing.
• That post SGO support is provided by the Council who placed the child for three years. After this, post SGO support can be accessed from the Council in which the child resides.
23. The Court adjourned the hearing for 2 weeks until early April. The Council postponed the Looked After Child Review until the day before the Hearing.
24. During the Review, Ms X and the Council discussed the outstanding issues. The Council then wrote to Ms X confirming the actions the Council proposed to take to resolve the issues. These are summarised as:
1. The local authority will financially support Ms X with a one-off payment of £10,327.50 to support B to attend nursey between the age of 1 and 2 years. This would cover half the fees as Ms X would be able to claim childcare vouchers for the remaining half.
2. The local authority will ensure Ms X is provided with B’s medical history and report from her Looked After Child medical.
3. The Family Partnership team will support Ms X with completion of any further applications for council tax or benefits. The weekly SGO Allowance has now been recalculated and Ms X will receive £88.08 per week. There will be no deductions from the current foster care allowance until she is in receipt of Child Benefit and Child Tax credit for B.
4. The local authority will fund supervised contact in a safe and convenient setting for B up to three times in the first year. The Council agreed to consider whether it would contribute to a recent car repair following a contact trip for B if Ms X provided a quote/invoice.
5. The local authority will provide a letter of support along with additional support provided by Family Partnership in making an application for a managed move to a larger property. The local authority understands that Ms X’s current housing association will not increase the current banding of need from C to B, or A, as a result of B being placed in Ms X’s care. Ms X’s local housing authority does however have a different assessment of need banding system which will give weight to additional children being placed under an SGO, and therefore the local authority will support Ms X to transition from the housing association waiting list to the borough’s housing list where she resides.
6. The local authority will provide a birth certificate and passport for B.
25. At the Court Hearing the next day, Ms X confirmed she was generally satisfied that the Council had or were in the process of resolving the outstanding issues.
26. The Court made the SGO and Ms X became B’s Special Guardian.

Period after the SGO being made.

27. Later in April, Ms X contacted the Council. She included a car repair bill for £1040 as requested by the Council. She also raised concerns she had not received any contact from the Family Partnership team.
28. In early June, Ms X complained to the Council. She said the issues discussed at the meeting the day before the SGO, that the Council agreed to resolve, were still outstanding. These related to nursery fees, car repair, housing, passport/birth certificate, and B’s medical records.
29. When she had not received a response by mid-July, Ms X escalated her complaint Stage 2. Later that month, the Council contacted Ms X to gain additional information about her complaint and offered to meet with Ms X in August. The Council explained that some Council officers involved in B’s SGO had left the Council which could explain some of the outstanding issues. Following a meeting, the Council agreed to:
• Reimburse Ms X for the passport and birth certificate fees
• Reimburse Ms X for some of A’s backdated nursey fees.
• Request B’s medical history
• Review the housing emails and write to the housing manager at the Council where Ms X lives to escalate the request for a bigger home.

Council’s actions following the meeting.

30. The Council reimbursed Ms X for the passport and birth certificate although issues with the applications continued due to circumstances surrounding B’s birth parents.
31. The Council issued Ms X with a cheque to cover some of A’s nursery fees.
32. The Council sent B’s medical records to Ms X in late September. This was 6 months later than agreed.
33. The Council contacted the Housing Association and the Council where Ms X lives about her moving to a larger property. The Council supported Ms X during a meeting with the Council’s housing department.
34. The officer explained that although Ms X’s accommodation is overcrowded, her family is not inadequately housed as she has a separate living room that could be used as a bedroom. The officer explained that there is a 10-15 year waiting list for a Council property. She said she would contact the housing association to see if more properties were available.
35. In early October, the Council issued a response to Ms X’s Stage 1 complaint that it received in June. The Council upheld Ms X’s complaint but did not agree to pay:
• B’s full nursey fees of £10,000
• A’s nursery fees of £3,500
• Money towards a new car.
36. The Council explained this was due to a national and local financial crisis.
37. Ms X remained dissatisfied and escalated the complaint to Stage 2.
38. In its response to Stage 2 in November, the Council was found:
• At fault for not considering that B was a Looked After Child for a period of time when calculating its contributions to nursery fees. It recommended the Council carry out an SGO Assessment of Needs and to re-consider the Council’s provision of services and any further financial contributions.
• At fault for failing to provide B’s medical records within the timescales it agreed. There were no records of the Council requesting the records from NHS. The timescales agreed by the Council were unrealistic and unachievable. The Council did not manage Ms X’s expectations regarding these timescales.
• Not at fault for failing to contribute to Ms X’s car repairs or a new car. It said the Council has discretion to help Ms X financially where it considers it to be acceptable. The Council considered Ms X’s request but could not agree to the contribution.
• Not at fault for Ms X’s living accommodation. Pre-hearing, the Council agreed to support Ms X in moving to a larger property. The Council contacted the housing association and housing department where Ms X lives. The Council has no power to influence Ms X’s housing register application in a different Council area.
39. The Council wrote to Ms X in March 2023 after she brought her complaint to the Ombudsman. It apologised to Ms X for the service she received and updated her on the other actions. The Council said the requested payments towards nursery fees are not within the scope of the Council’s SG policy or financial policy. The previous payment was made in exceptional circumstances, and it was made clear it was a one-time payment.

My findings

40. The Council delayed the process before, during and after the Court made the SGO:
• The adjournment of the Hearing was to allow the Council to provide further information to support the Order.
• The delay of the Looked After Child Review to the day before the Hearing left Ms X with little time to process and consider the actions put forward by the Council.
• The delays in providing Ms X with payment for B’s passport and birth certificate, medical records, and letter of support to the housing association/housing department.
• The Council’s delayed response to Ms X’s complaint.
41. These delays were fault and caused Ms X frustration and inconvenience. However, they did not have a significant impact on the care and support that Ms X or B received from the Council.
42. There was no fault with the Council for its decision not to make a payment to Ms X towards nursery fees or car repair/replacement. The Council made the payments agreed pre-SGO Hearing and considered the other requests. Any further payments would have been discretionary, and the Council explained why it could not agree to them. This was the Council’s decision to make, and I cannot question it if it was made without fault.
43. In terms of Ms X’s overcrowded accommodation, the Council actioned what was agreed, albeit 6 months later. There is nothing more the Council can do to influence Ms X’s position on another Council’s housing register. The delay in the Council’s action was fault causing Ms X’s housing application to be delayed. However, I cannot make recommendations for another local authority to backdate Ms X’s housing priority on the basis that the Council delayed contacting the authority. The Council has agreed to make a symbolic payment to go someway in remedying Ms X’s injustice caused by the Council’s delay.

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Agreed actions

44. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Ms X for the delays she encountered during the SGO process.
2. Pay Ms X £500 for the delays in the process causing her frustration, inconvenience and distress.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation. I have found the Council at fault for the delays Ms X encountered during the SGO process. These delays caused her frustration, inconvenience and uncertainty.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman