Decision : Upheld
Decision date : 15 Feb 2018
The Ombudsman's final decision:
Summary: There were failings in the way the Council carried out financial assessments in relation to a Special Guardianship Allowance. This has left the complainant with uncertainty as to whether the Council would have awarded an allowance if it had carried out the assessments properly. The Council also delayed dealing with her complaint and reviewing its policy and procedures. The Council has agreed to take action to remedy the complainant’s injustice.
- Miss B complains that the Council is not backdating her Special Guardianship Allowance. It stopped the allowance in April 2014 but reinstated it from July 2016 following a decision by the Scrutiny Panel. Miss B believes the Council should backdate the award to April 2014.
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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
- I have:
- considered the complaint and the documents provided by the complainant;
- discussed the issues with the complainant;
- made enquiries of the Council and considered the comments and documents the Council has provided; and
- given the Council and the complainant the opportunity to comment on my draft decision.
What I found
- The law says every local authority must provide accommodation to children within their area who need it, if the person who has been caring for them is prevented (whether or not permanently, and for whatever reason) from providing suitable accommodation or care. The child would be classed as a ‘looked after child’.
- The principle in law is that all children, including looked after children, should where ever possible be cared for by their family and friends. So a council may fulfil its legal duty to accommodate a child by placing it with relatives or friends. The relative or friend would undergo a fostering assessment and once approved would receive a fostering allowance to help support the child. The financial support is equal to the allowances/fees provided to other foster carers within that local authority.
- In the case of a child who was looked after immediately prior to the making of a special guardianship order, the child, special guardian or parent has a right to receive an assessment by the local authority for support services, which may include financial support.
- The Department for Education and Skills has provided a means test model for adoption and special guardianship financial support. While the Department recommends its use by local authorities, it is not a statutory requirement.
- The guidance on using the model says that where a family is in receipt of Income Support, it recommends that the local authority pays the family the applicable maximum payment without assessing their income/expenditure.
- Where a person wants to make a complaint about the actions, decisions or apparent failings of a council’s children’s social services provision, councils must follow a statutory complaints procedure as set out in The Children Act 1989 Representations Procedure (England) Regulations 2006. The statutory guidance for these complaints ‘Getting the Best from Complaints, Social Care Complaints and Representations for Children, Young People and Others 2006’ informs councils of the procedures to follow.
- Councils have a duty to act expeditiously through the procedure to ensure that the complaint is dealt with as swiftly as possible. The timescales in working days for the procedure are:
- 10 days at Stage 1 (with a further 10 days for more complex complaints or additional time if an advocate is required);
- 25 days at Stage 2 (with maximum extension to 65 days);
- 20 days for the complainant to request a Review Panel;
- 30 days to convene and hold the Review Panel at Stage 3;
- 5 days for the Panel to issue its findings; and
- 15 days for the local authority to respond to the findings.
Background to the complaint
- Miss B is the maternal grandmother of J, who is now 12 years old. The Council placed J in her care in 2006. The Courts then granted a Special Guardianship Order in Miss B’s favour in August 2006, with a Supervision Order to the Local Authority. The Council paid a weekly allowance to Miss B. It stopped paying the allowance in October 2013, reinstated it and back dated it in December 2013, and then withdrew is again from 18 April 2014. Miss B asked for a further financial assessment in 2015 which again resulted in a decision by the Scrutiny Panel to not award an allowance.
- In March 2015, Miss B complained to the Council about its decision to end the allowance in April 2014. The complaint went through the statutory complaints procedure and was completed in April 2016.
- The complaint investigation found that the Council was using a filtering system and not all requests for financial support were reaching the Finance Department. Social workers were carrying out a financial assessment and then deciding with their managers whether the Council should pay an allowance. If they decided that the Council should pay an allowance, or if the Special Guardian appealed their decision that it should not pay an allowance, the social worker’s assessment would be submitted to the Council’s Scrutiny Panel. The Finance Department was only carrying out an assessment if the Scrutiny Panel decided that the Council should provide financial support.
- The Independent Investigator found that the Finance Department was using a process based on the means test model recommended by The Department for Education and Skills which resulted in standardised decisions. But that the Council had not provided any specific guidance to social workers and their managers about how to carry out the initial financial assessment. As a result, social workers and managers were not making consistent decisions about the amount of spare money which should be available to a family each month, how to deal with significant debts and whether to include DLA (Disability Living Allowance) as family income.
- The Independent Investigator upheld many of Miss B’s complaints. She made several recommendations including that the Council review its procedures and carry out a fresh financial assessment. The Council accepted the Independent Investigator’s findings and agreed to consider her concerns when reviewing its policy and procedures. The Council then amended its policy and procedures and carried out a fresh financial assessment. This resulted in the Council reinstating Miss B’s allowance in July 2016. It is paying an amount equivalent to the full fostering allowance.
- Miss B asked the Council to backdate the award to April 2014. The Council’s Scrutiny Panel considered her request in July 2016. It decided that the Council should not backdate the award because it made its previous decisions to not provide financial assistance in line with the policy at that time.
- I have considered whether there was fault in the way the Council reached its decisions to refuse financial support in March 2014, April 2015 and March 2016.
- The Council has not kept a copy of the assessment documents for the decision made in March 2014. This is fault. When the Council carried out each of the financial assessments, there was insufficient guidance available to social workers to enable them to carry out a proper financial assessment. Social workers did not know if they should include DLA as income, how to deal with significant debts or how much spare money should be available for the family. The complaint investigation carried out after the March 2014 and April 2015 decisions found discrepancies in the way social workers had carried out the assessments and I note that the Council agreed with the Independent Investigator’s findings.
- The Council carried out the assessment in March 2016 to comply with the Independent Investigator’s recommendation for the Finance Department to carry out a full financial re-assessment. The Finance Department did not carry out the assessment in March 2016 but the social worker did complete the Finance Department’s assessment form as well as carrying out the usual social worker’s assessment. She submitted both to the Scrutiny Panel. However, Miss B was in receipt of Income Support and the social worker failed to follow the guidance with the Finance Department’s form which says that the maximum payment will be awarded without assessing income and expenditure if the applicant is in receipt of Income Support. This was fault. I consider there were failings in the way the Council carried out each of the financial assessments.
- The minutes of the Scrutiny Panel held in March 2014 show that Miss B raised concerns about the process used by social workers and did not agree with the social worker’s decision to include DLA when assessing her finances. She raised her concerns again later that year and then made a formal complaint in March 2015. The Council took over a year to complete the complaints procedure. This delay was fault. The Council’s Special Guardianship policy and procedures were due to be reviewed in April 2015 but the Council did not review them until July 2016. This was fault. If the Council had not delayed dealing with Miss B’s complaint, and had then reviewed its policy and procedures promptly, I consider it would have awarded the maximum allowance to Miss B far sooner. To remedy Miss B’s injustice here, I consider the Council should pay Miss B an amount equivalent to the maximum allowance for ten months, for the period September 2015 to July 2016.
- For the 17-month period from April 2014 to September 2015, I consider the Council should pay Miss B £1700 for the uncertainty she has been left with as to whether she would have received an allowance if there had been no fault in the way it had carried out the assessments.
- The Council has agreed that within six weeks, it will pay Miss B:
- an amount equivalent to the maximum allowance for ten months, for the period September 2015 to July 2016; and
- £1700 for the uncertainty she has been left with as to whether the Council would have paid an allowance during the 17-month period between April 2014 and September 2015 if there had been no fault in the way it had carried out the assessments.
- I have completed my investigation and uphold the complaint. There was fault by the Council which caused injustice to Miss B. The action the Council has agreed to take is sufficient to remedy that injustice.
Investigator's decision on behalf of the Ombudsman