Decision : Upheld
Decision date : 08 Feb 2019
The Ombudsman's final decision:
Summary: The complainant was concerned about the Council’s support package to help her care for her two grandchildren, under her Special Guardianship Order. There has been some delay by the Council in reviewing the support but this has been caused, in part, by the continued uncertainty about whether the complainant would remain living in the area of another council. The complainant has now decided to stay put, so the Council has agreed, as a way of resolving this complaint, to reassess the complainant’s support package and to report back to the Ombudsman, within two months, about what additional services it will provide.
- The complainant, who I refer to as Ms X, has a Special Guardianship Order for her two grandchildren, Child C and Child D. The Court made this Order in 2016 after a contested hearing. The Council had not supported the making of the Order.
- Since this time, Ms X says the Council has failed to offer sufficient financial and other support. As a result, she has struggled to meet the needs of her grandchildren.
- Ms X also has two young children of her own living at home with her. Ms X is a single parent. She lives in the area of another Council area, Area Z.
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)
How I considered this complaint
- I have spoken to Ms X on the telephone and to her solicitor. The Council and Ms X have provided some written information. I issued a draft decision statement and have considered the Council and the complainant’s additional comments when reaching my final decision.
- Under the information sharing agreement between the Local Government Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
What I found
- A Special Guardianship Order, granted by a Court, gives the Special Guardian parental responsibility for a child who is not their own. It does not entirely remove the parental responsibility of the birth parent but limits it.
Financial support to Special Guardians
- Councils should comply with statutory guidance unless they can show local circumstances indicate exceptional reasons to justify a variation from the statutory guidance.
- The Guidance says financial issues should not be the sole reason a special guardianship arrangement fails to survive.
- The Regulations say financial support to Special Guardians is payable to support the continuation of the arrangement after a Special Guardianship Order is made. Regulation 6 says financial support is only payable:
- where the council considered it is necessary to ensure that the Special Guardian can look after the child;
- where the child needs special care which requires greater resources than would otherwise be the case because of illness, disability, emotional or behavioural difficulties or the consequences of past abuse or neglect;
- where the council considers it is appropriate to contribute to the legal costs of making an Order;
- where the council considers it appropriate to make a contribution to the expenditure necessary for the purpose of accommodating and maintaining the child, including the provision of furniture and domestic equipment, alterations to and adaptations of the home, provision of means of transport, and provision of clothing, toys and other items necessary for the purpose of looking after the child.
- other benefits available to the Special Guardian or child;
- the Special Guardian’s financial resources, including any tax credit or benefit, available if the child lived with them;
- the amount required by the person in respect of reasonable outgoings and commitments (excluding outgoings in respect of the child);
- the financial needs and resources of the child.
- mortgage or rent payments;
- other outgoings such as loans related to meeting the needs of accommodating the extra children; and
- a core family expenditure for general household expenses on items such as food, transport, clothes, recreation. It recommends this should be calculated using 125% of the Income Support allowance rates.
- the method used to decide the amount of financial support;
- the method of payment, frequency, period it covers and when it will begin;
- whether it is subject to conditions;
- the arrangement and procedure for review, variation and termination;
- the council’s and Special Guardian’s respective responsibilities.
Special Guardianship Support Plan
- Regulation 14 requires councils to prepare a Support Plan, to be kept under review, if it proposes to provide support services to a Special Guardian on more than one occasion and the services are more than providing just advice or information.
- Councils must name a person to monitor the provision of services under the Support Plan. The Plan should set out the services to be provided, the objectives, the timescales for provision, procedures for review and who will monitor the provision of the services in the Plan. The Plan should be written in a way that everybody affected can understand. Councils must share a draft of the Plan with the Special Guardian and councils must consider the Special Guardian’s representations before they finalise the Plan. They must also consult the Special Guardian about any revision of the Plan.
The Council’s policy on Special Guardianship Allowances
- The Council’s policy was updated in June 2016. It states that its allowances are aligned to its fostering allowances. It allows an enhancement to the weekly allowance in exceptional cases where the Council considers this is required by the individual’s circumstances. Examples are where an additional allowance may be paid where universal services cannot be accessed.
- The Council’s policy is to give Special Guardians 28 days to make representations in response to a draft support package.
- The Council’s Children’s Services removed Child C and Child D from their mother (Ms X’s daughter) due to child protection concerns. The children went to stay with foster carers and the Council started court proceedings to decide where they should live permanently. The children and their parents lived in Hillingdon but Ms X now lives in Area Z. Her accommodation is owned by a Housing Association.
- Ms X put herself forward to be the children’s carer and the Council completed a viability assessment, which was positive and supported the making of a Special Guardianship Order to her. Subsequently the Council decided that the viability assessment did not have all the necessary information and the Council changed its mind and sought Care and Placements Orders. These Orders would have enabled the Council to place Child C and Child D for adoption.
- Ms X asked to be a party to the Court proceedings so that she could challenge the Council’s care plan for the children. The Court granted this. The Council continued to oppose the making of a Special Guardianship Order. But the Guardian, appointed by the Court to consider the children’s best interests, recommended the Order be made. The Court accepted that recommendation.
- Child C and Child D were under the age of 5 at this time.
- The Court stated, however, that the Special Guardianship Order support plan needed to be considered by the Council promptly.
- Ms X complained previously to the Ombudsman about the Council’s delay in making special guardianship payments but the Ombudsman did not uphold this complaint.
Events of 2016 and 2017
- In December 2016, Ms X complained to the Council about the lack of support she was receiving as a special guardian. Ms X told the Council that the children had emotional and behavioural problems and needed specialist therapy. She felt she needed more financial assistance to be able to manage them, including funding for nursery fees. She had also asked for money towards a cleaner, because her caring responsibilities and her health problems meant that maintaining the home was difficult for her.
- The Council considered Ms X’s complaint at stage 1 and 2 of its complaints procedure and sent her a final response in late January 2017. The Council said that, as the support plan did not include payments for a cleaner or nursery, or any other funding, it was not responsible for providing this. However, it offered to arrange a reassessment of Ms X’s support needs, which would include consideration of further funding.
- Soon after this response, a social worker from the Council met Ms X to try to finalise the Special Guardianship Order support plan and discuss her support needs. She advised Ms X to speak to her General Practitioner (GP) about the children’s behaviour and ask for a referral to the local Child and Adolescent Mental Health Service (CAMHS) for an assessment. The social worker told Ms X she could use her financial allowance for nursery fees.
- The social worker visited Ms X and the children in March 2017 to discuss how she was managing and whether she needed more support. She gave her information about resources for children and families in Area Z and suggested she could approach a local children’s centre for help from a family support worker. She again advised Ms X to visit her GP to share her concerns about the children’s health and behaviour, which Ms X did do. The social worker observed that Ms X was managing to keep her home tidy without a cleaner. The Council did not offer any more financial support or any other assistance.
- The Council said it had not identified any other areas of support that Ms X and the children needed. It said that there were services available in Area Z and the standard allowance was sufficient. It agreed to monitor the situation until November 2019 and stated that Ms X could ask for a new support assessment if she thought this would be helpful.
Details of the current complaint
- Ms X submitted a fresh complaint to the Ombudsman in early 2018, stating that she was continuing to struggle with the children’s complex needs, which she did not feel were adequately addressed by the Council’s new support plan. Ms X had refused to sign the support plan accompanying the Council’s assessment. Ms X’s solicitor considered taking legal action but legal aid has not been forthcoming.
- There was a referral to Ms X’s Children Services in Area Z. This resulted in an assessment from Area Z and it was initially agreed that Child C and Child D were children in need. But Area Z subsequently changed its mind and it stated that they should not be regarded as children in need. This now is the subject of a complaint from Ms X to Area Z.
- Ms X says also that Area Z’s Occupational Therapist visited her and looked at the property and has confirmed that it is not suitable for the family and that the driveway is unsafe.
- In July 2018, the Council’s advanced practitioner visited Ms X at her home. In view of the forthcoming long summer holidays, and the additional stress this would cause Ms X in looking after four children during this period, the Council agreed to help pay towards nursery fees for Child C and Child D during the summer break. The Council made it clear that this was a one off exceptional payment in accordance with its policy.
- The Council also agreed to recommend that Child C and Child D were assessed by a psychologist or therapist to identify therapeutic support needs that they may have. This report has now been produced and provides valuable input as to what is required for Child C and Child D and what services might assist.
- Ms X is also trying to arrange for Child C and Child D to have assessments for possible autism. These are important assessments which remain outstanding.
- Ms X has been raising concerns throughout the past year about the struggles she is having with managing four children, all with individual needs and, in respect of Child C and Child D, additional difficulties because of their early years adverse experiences and possible autism. Her accommodation is also unsuitable but there appears to be little positive discussion or action taken to move her to a larger property or consideration given to extending her present property, and making the driveway safe, under a Disabled Facilities Grant.
- The situation is complicated because Ms X has been very ambivalent about remaining in Area Z and therefore the professionals involved from, both the Council and Area Z, have been unclear about her future intentions. It would also appear that there has been some confusion about which Council has the prime responsibility. But, in respect of the Special Guardianship support arrangements, this is for the Council to determine. That is not to say it cannot seek Area Z’s assistance but it must take the prime responsibility for ensuring the assessing and provision of services that are necessary to support the placement of Child C and Child D.
- Ms X’s housing situation is complicated because she resides in a Housing Association property. However, it appears that all the professionals agree that the accommodation is not suitable to the family’s needs and that the driveway is dangerous.
- Ms X says she is now committed to remaining in Area Z and this should provide clarity to the agencies involved in helping her. I have explained to Ms X that she should put this commitment, in writing, to the Council within 14 days of the date of this statement, so as to end any remaining ambiguity which could prevent clear decisions about support being made.
- The Special Guardianship regulations are clear that support plans should set out the services to be provided, the objectives, the timescales for provision, procedures for review and who will monitor the provision of the services in the plan. To date, the Council has not, in my view, considered the full range of support which should be made available to Ms X and, without this, it would appear the placement is in danger of being disrupted. That is fault.
- I accept, however, that it has been difficult for the Council to devise suitable plans while Ms X has been reluctant to remain in Area Z. This should not now be a problem given Ms X’s commitment to remain living in Area Z.
- However, it is clear, and I believe both the Council and Area Z agree, that the children’s placement with Ms X cannot be sustained long term without additional consideration about how best to support her.
- The Council has two months from the date it receives Ms X’s written commitment to remain living in Area Z to review and issue a clear support plan dealing with:
- Ms X’ s inappropriate housing situation: It is not for the Ombudsman to say how this should be resolved. But the Council will need to talk to the housing department at Area Z and the Housing Association to see what should be done to provide Ms X with a larger property and a safe driveway;
- Child C and Child D’s therapeutic support needs: these now have been highlighted by recent assessments and the Council needs to consider how best to provide for these. Ms X also has her own significant health difficulties which need to be considered.
- Financial considerations: the Council should issue a new financial assessment setting out clearly Ms X’s financial resources and outgoings and what consideration the Council has given to the requirements set out in Regulation 6 requiring it to consider whether it should make a contribution to additional expenditure for the purposes of maintaining the placement.
- There has been some delay by the Council but Ms X’s uncertainty about remaining in Area Z has caused confusion for the Council about how best to support her. But Ms X has now clarified her intentions and the Council has therefore agreed to reassess her, dealing with the points which I have raised in paragraphs 47 and 48.
- I have therefore completed my investigation and I will close the complaint.
- If Ms X remains dissatisfied with the revised support plan, once finalised, it is open to her to refer her concerns back to the Ombudsman.
Investigator's decision on behalf of the Ombudsman