Summary: Ms X complained the Council did not pay her the same financial support as mainstream foster carers while she was a family and friend carer. She also said its decision to deduct child benefit from her Special Guardianship Allowance went against the Government’s guidance. The Council paid Ms X the same fostering allowance as mainstream carers. However, it did not offer the opportunity to complete training that would have allowed her to be paid the additional skills fee. That meant Ms X did not receive as much money as she could have been entitled to earn. The Ombudsman finds the Council was at fault. The Council should remedy the injustice caused by paying Ms X the skills fee for the period she was a family and friend carer. The Council was not at fault in how it calculated the Special Guardianship Allowance.

The complaint

1. Ms X complained about the financial support the Council gave her when she was a family and friend foster carer. She said the Council did not pay her the same fees that its mainstream foster carers received.
2. Ms X also complained the Council:
• deducted child benefit from her Special Guardianship Allowance which goes against the Government’s recommendations;
• delayed in paying her the Special Guardianship Allowance age related increase; and
• does not pay Special Guardians a holiday allowance the same as foster carers.
3. Ms X feels upset and not valued as a Special Guardian. She says the Council’s decision to deduct child benefit has had financial implications for her.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. 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.

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How I considered this complaint

8. I spoke to Ms X and considered her written complaint to the Council and its response.
9. I made enquiries of the Council who provided information including Ms X’s case records and the Special Guardianship Order Plan.
10. I referred to the:
• Council’s policies and procedures on fostering and fostering allowances and fees;
• Department for Education means test ‘Disposable Income’ model and its statutory guidance, the ‘Special Guardianship Guidance’, ‘Family and Friends Care’ and the Fostering Services; National Minimum Standards 2011.
• Care Planning Placement and Case review (England) Regulations 2010
• The Special Guardianship Regulations 2005, and The Special Guardianship (Amendment) Regulations 2016.
11. The Ombudsman would generally expect complainants to bring complaints to us within 12 months of them becoming aware of the issues that they complain of. As a result, we would not usually investigate events that occurred over 12 months before someone raised their complaint. However, in this complaint, I have used my discretion to investigate back to 2014, as Ms X was not aware of the fault when she was a family and friend foster carer.
12. Mrs X and the Council both had the opportunity to comment on my draft decision.

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What I found

Family and friend foster carers

13. When a council has concerns about parents’ ability to care for their child (or children), it can ask relatives or other suitable adults (a connected person) to foster them. These children are known as looked after children. The Council is responsible for the child’s care and it has a duty to provide financial support to carers.
14. If a council needs to place a child urgently it may not have time to approve the connected person as a foster carer before placement. In these circumstances, Regulation 24, of the Care Planning Placement and Case review (England) Regulations (the Regulations 2010) allow the council to immediately approve the connected person as a council foster carer for a maximum period of sixteen weeks. This can be extended by eight weeks if:
• the sixteen weeks is likely to expire before the Council can complete the full assessment; or
• the Council has completed the full assessment, but found the connected person is not suitable. The connected person can request a review of this decision.
15. The Council must seek the views of the fostering panel before extending the placement by eight weeks.
16. Other than when the Council makes approval temporarily, a person approved under the 2010 Regulations is a council foster carer. If after 24 weeks, the fostering panel has not approved the family and friend foster carers, Section 25 of the Regulations says the council must end the placement after making alternative accommodation arrangements.
17. Councils must treat family and friends foster carers the same as other foster carers. This includes paying them the same financial allowances to care for the child.
18. If a family and friend foster carer has been caring for a child for more than sixteen weeks, the Fostering Services national minimum standards apply. These say:
• family and friend foster carers should have access to the same training as other foster carers; and
• “the criteria for calculating fees and allowances, are applied equally to all foster carers, whether the foster carer is related to the child or unrelated, or the placement is short or long term”.
19. The Council pays family and friend foster carers the same maintenance fees as mainstream foster carers. However, it pays mainstream foster carers an additional weekly skills fee. Family and friend foster carers are entitled to be paid the additional skills fee after they have completed the “skills to foster” training. The Council said it offers this training to family and friend foster carers during the assessment period.

Special Guardianship Orders

20. A Special Guardianship Order (SGO) is a court order that gives a carer parental responsibility for a child. Special Guardians share parental responsibility with the child’s parents, but they can exercise their parental responsibility to the exclusion of all others. If the child was in care, they are no longer looked after by the council once the court makes the SGO.

Special Guardianship Allowance

21. Councils can provide financial support if they consider it necessary to ensure a Special Guardian can look after a child. For children who are or were previously looked after, the Council must carry out an assessment of the person’s needs for special guardianship support services.
22. The Special Guardianship Regulations 2005 (the Regulations 2005), state the Council should “have regard to the amount of fostering allowance which would have been payable if the child were fostered” when calculating the special guardianship allowance. Fostering allowance increases as the child ages. The Council’s rate increases from £185 weekly to £244 weekly following the twelfth birthday.
23. They Regulations 2005 also state the Council should consider any other grant, benefit, allowance or resource that the Special Guardian can claim. This includes child benefit and child tax credit. There should be no financial reward in the allowance paid to Special Guardians; the only exception to this is where Special Guardians were previously foster carers and were receiving a higher level of renumeration. In these circumstances the council can continue to pay the fostering allowance for two years.
24. The Council uses the Department for Education means test ‘Disposable Income’ model when calculating how much financial support, it pays Special Guardians. This was designed to deliver a standard approach to arriving at special guardianship support payments and is based on disposable income. It completes financial assessments yearly.
25. The supporting guidance of the model states that when calculating the allowance to be paid to families receiving income support “the figure paid to the family should not include any deductions for child benefit”. The use of the model is not mandatory.
26. The Council’s SGO policy states it deducts child benefit and child tax credit from the allowance before it is paid.
27. Any complaints about Special Guardianship Allowance are dealt with through the statutory children’s complaints procedure.

The statutory complaints procedure

28. There is a formal procedure, set out in law, which the Council must follow to investigate complaints made by or on behalf of looked-after children and children in need. The procedure involves three stages:
29. Stage one - local resolution by the Council. This stage takes between ten and twenty working days.
30. Stage two - an investigation by an independent investigator who will prepare a detailed report and findings to which the council must respond. The independent investigator does not line manage anyone involved in the complaint. If a complainant is still dissatisfied after stage two, they have the right to ask for their complaint to be considered at stage three. A stage two investigation for a complex case should take no more than 65 working days.
31. Stage three - consideration by an independent review panel which may make further recommendations. A review panel should begin within 30 working days of the request.

What happened

Before the Special Guardianship Order

32. Ms X is the grandmother of Y. In March 2014, the Court made an Interim Care Order placing Y under the care of the local authority. The Council placed Y with Ms X under Regulation 24 and temporarily approved her as a family and friend foster carer with a plan for Ms X to become Y’s Special Guardian.
33. The Council paid Ms X a weekly allowance of £185 to care for Y. This was the same rate paid to a mainstream foster carer.
34. In April 2014, Ms X asked the Council to pay her money to cover petrol costs for Y’s contact visits with his mother. The Council told Ms X transport costs were covered in the weekly allowance, however, if she travelled more than fifty miles a week, she could claim mileage at 31p per mile. This mileage allowance was also the same received by mainstream foster carers.
35. The Council expected the Court to make the SGO in June 2014, however, the Court delayed and in January 2015, returned Y to his mother’s care through a Child Arrangement Order. In May 2015, the Council decided to place Y with Ms X again, after further concerns about his mother’s care. The Council restarted proceedings for Ms X to be Y’s Special Guardian.
36. The Council again paid Ms X £185 weekly allowance in line with the payments made to mainstream foster carers. In June 2015, Ms X met with her social worker. In this meeting, she questioned the maintenance allowance she received as a family and friend foster carer compared to the extra fees approved foster carers received.
37. The social worker emailed Ms X the following day and said for Ms X to receive the extra fees paid to mainstream foster carers, she would have to complete the ‘skills to foster’ training. If Ms X completed the training, she would receive an additional £181 a week. Ms X said she would like to complete the training. As the social worker was not clear if Ms X met the criteria for the training, they said they would get further information from the manager.
38. In July 2015, during supervision, the social worker told Ms X that as the plan was for her to be a Special Guardian and not a long-term family and friend foster carer, she could not complete the ‘skills to foster’ training. The record of this meeting states Ms X did not know about the training opportunities for family and friend foster carers until the social workers first visit in June 2015 as it had not been discussed with her before. Ms X asked to go on two training sessions in July including safeguarding and self-harm.
39. The Council completed a Special Guardianship Plan outlining the support it would provide Ms X and Y after the Court awarded the SGO. The Council agreed to pay a weekly allowance of £185 before deductions for child benefit and child tax credit for the next three years. It said any financial arrangement was subject to annual review.

After the Special Guardianship Order

40. In October 2017, the Council sent Ms X a letter asking her to complete the financial assessment form. It then sent two further letters, stating it would stop the allowance if Ms X did not provide the information it had asked for. Ms X responded to the Council but sent her email to the wrong email address.
41. In November 2017, the Council stopped Ms X’s allowance. Ms X contacted the Council and said she had been unable to complete the forms because of a family bereavement. The Council agreed to restart the payments but advised it needed to know of any changes to her financial situation.
42. Ms X sent the completed financial assessment to the Council on 24 November 2017. The Council acknowledged receipt of Ms X’s form but stated there were no copies of bank statements or the final pages of her child tax credit information. It asked Ms X to return this information as quickly as possible so the Council could review Ms X’s allowance.
43. On 19 January 2018, Ms X complained to the Council. She said:
• while she acted as a family and friend foster carer, she did not receive the additional fees the Council paid its foster carers;
• the Council paid foster carers a holiday allowance, but it did not pay this in the Special Guardianship Allowance;
• the Council’s decision to deduct child benefit and child tax credit from families who receive income support went against the Government’s recommendations.
44. Ms X also said the Council had failed to increase Y’s allowance after his twelfth birthday.
45. In February 2018, the Council’s responded to Ms X’s complaint. It said it had placed Y with her under Regulation 24 as a connected person and it paid her the same weekly allowance foster carers received. It said, “as you were not an approved foster carer but a connected carer, this reward element was not applicable to you and we would have been contravening the regulations if we had made additional payments”.
46. It said the Government guidelines recommending child benefit and child tax credit was not deducted from those on income support was “only a recommendation and Barnet, in line with many other local authorities, have taken the decision to make these deductions but we do ensure that the allowance plus the benefits you receive equate to the Connected persons allowance”.
47. On 24 May 2018, Ms X provided the Council with the additional documents it has asked for to complete the financial assessment. It increased Y’s weekly payments to the twelve year old allowance the next month.
48. Ms X contacted the Council in June 2018 as she was unhappy with its response. In November 2018, the Council responded. It did not uphold her complaint but offered her £500 as a gesture of good will and to acknowledge the delay in responding. Ms X remained unhappy and complained to the Ombudsman.
49. The Ombudsman asked the Council to consider the complaint through the statutory complaints procedure and allocate a stage two investigating officer. The Council said a stage two investigation would not achieve the outcome Ms X wanted as she was challenging the Council’s policy. It said the investigating officer would not consider the Council’s policy, only whether it had been applied correctly. It accepted Ms X and other SGO carers should be offered a more detailed explanation of the policy.

My findings

The financial support the Council paid Ms X while she was a family and friend foster carer

50. The National Standards for fostering are clear that family and friend foster carers should receive the same training opportunities and payment as mainstream foster carers. These apply after a family and friend carer has provided care for 16 weeks.
51. Throughout the duration Ms X acted as a family and friend foster carer, the Council paid her a weekly allowance of £185. This payment included money for travel. The transport allowance and weekly payment was the same received by mainstream foster carers. The Council was not at fault.
52. The Council pays mainstream foster carers an additional fee of £181 a week once they are approved by fostering panel. The Council states for family and friend carers to receive the additional fee, they must complete the ‘skills to foster training’. The Council states that family and friend carers are offered the opportunity to attend this during the assessment period.
53. The Council did not offer Ms X this training when it first placed Y in her care in 2014 or during the assessment period. It said this was because the plan was for her to become a Special Guardian. I appreciate why the Council did not offer the training when it first place Y with her, however after the Court delayed in awarding the SGO, it should have reviewed this decision. This is because it was clear Ms X would be a family and friend foster carer for a longer period of time.
54. If the Council had offered Ms X the ‘skills to foster’ training, it is most likely she would have completed it promptly. That meant Ms X did not get the additional fees that she would have been entitled to receive. That was fault.
55. The following year, the Council did discuss the training with Ms X but said she was not eligible to complete it because the plan was for her to become a Special Guardian. It had this conversation shortly after it made the placement and the Court awarded the SGO within 20 weeks. Ms X was not a family and friend carer for an extended period therefore the Council was not at fault for not offering Ms X the training.
56. The Council’s policy does not state family and friend foster carers, who plan on becoming a Special Guardian, should not get the same training opportunities as other family and friend foster carers. It has already accepted its policy could be clearer.
57. When the Council makes a Regulation 24 placement it has sixteen weeks for the fostering placement to be approved by its fostering panel. The Council did not approve Ms X at fostering panel. That was fault, however it did not cause Ms X an injustice.

The financial support the Council paid to Ms X through the Special Guardianship Allowance

58. Ms X is unhappy the Council deduct child tax credit and child benefit before it pays the Special Guardianship Allowance. She also said the Council had not paid the increased allowance for Y on turning 12 and that it did not provide a holiday allowance for special guardians.
59. The Council’s decision to deduct child benefit of the special guardianship allowance for those on income support is not consistent with Department for Education’s guidance on the means test model. This states the deductions “should not” be made. However, the Council does not have to use the model and the recommendation is not statutory. The Council’s policy states it will deduct child benefit from the allowance. It therefore has considered the recommendations and decided to make this decision. The Council was not at fault.
60. The Council’s fostering maintenance rate increases once a child reaches the age of 12. Y was 12 in June 2017. From October 2017, the Council wrote to Ms X three times asking her to provide her information on child tax credit and child benefit. She did not provide all the information the Council asked for until May 2018. Following this the Council paid the increased rate. It did not backdate the increased rate to Y’s twelfth birthday.
61. The Council has stated it completes annual financial assessments and allowance rates are adjusted following these. It states it does not increase the rate automatically as it does for foster carers as SGA is means tested. Therefore, any changes to the family’s financial circumstances throughout the year could trigger a financial review. The Council has provided a clear rationale for not automatically increasing the SGA on a child’s twelfth birthday. It states any delays in it paying Ms X a higher rate was because she did not provide all the documentation it asked for. The Council was entitled to take that decision. The Council was not at fault.
62. The Council does not pay Special Guardians holiday allowance nor should it. The Council was not at fault.

The statutory complaints process

63. The statutory guidance states that where a complaint is considered at stage one, the complainant is entitled to pursue their complaint further through the procedure.
64. The Council must deal with any complaints about special guardianship allowance through the statutory complaints procedure. The Council did not do this because it considered Ms X’s complaint was about the Council’s policy and further investigation through the complaints process would not change this. Guidance on the statutory complaints procedure specifically refers to its use for complaints about the impact on a child of the application of a council policy. None of the grounds in the procedure covering exceptions from the procedure apply in Ms X’s case. That decision was fault.
65. The Council should have considered Ms X’s complaint at stage two, as the Council cannot pre-determine what the independent investigator would find without them completing their investigation. That fault has not caused Ms X an injustice as the Ombudsman has investigated, found fault and recommended action to remedy injustice caused.

Agreed action

66. Within one month of my draft decision the Council has agreed to:
• pay Ms X £5068 to cover the period starting 4 July 2014 to 20 January 2015 when she would have been entitled to receive weekly fees of £181 if the Council had offered the opportunity to complete the relevant training, once it knew the SGO would not be completed within anticipated timeframes.
67. Within three months of my draft decision the Council has agreed to:
• review its family and friend foster carer policy so it is explicit in which circumstances carers can complete training and be eligible for additional fees.

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Final decision

68. The Council was at fault for not offering Ms X the same family and friend foster care training as mainstream carers. The Council was not at fault in how it calculated her Special Guardianship Allowance. The Council has agreed to my recommendations therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman