Brighton & Hove City Council (18 000 409)

Category : Children's care services > Friends and family carers

Decision : Upheld

Decision date : 03 Oct 2018

The Ombudsman's final decision:

Summary: Mrs M complains she has missed out on financial support because the Council has not reviewed D’s Special Guardianship Support Plan at least once a year. Any fault has not caused Mrs M injustice.

The complaint

  1. Mrs M complains the Council has not completed regular annual reviews of her daughter, D’s Special Guardianship Support Plan. As a result, Mrs M believes she has missed out on financial support following changes in her family’s circumstances.
  2. Mrs M complains the Council did not tell her she might be eligible for financial support or offer an assessment when she informed the Council of changes in her circumstances.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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)
  3. 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)

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How I considered this complaint

  1. I have considered:
    • information provided by Mrs M;
    • information provided by the Council, including its response to Mrs M’s complaint, a Family and Friends Full Assessment Report completed in April 2012 and a Special Guardianship Support Plan completed in July 2012;
    • the Special Guardianship Regulations 2005; and
    • Special Guardianship Guidance, statutory guidance for local authorities issued by the Department for Education.
  2. I invited Mrs M and the Council to comment on my draft decision.

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What I found

  1. Mrs M has been a Special Guardian for D since 2012.
  2. D has a Special Guardianship Order Support Plan. The Council pays a small allowance each year to support contact between D and her birth parents.
  3. Mrs M asked for financial support in 2017 and, following a financial assessment, the Council now pays means-tested Special Guardianship Order Allowance. Mrs M asked the Council to back-date the Allowance to 2012, but the Council refused. Mrs M then complained to the Local Government Ombudsman.

Special Guardianship

  1. A Special Guardianship Order is a court order that gives a carer parental responsibility for a child.
  2. Councils must make arrangements for the provision of a range of support services to meet the needs of people affected by special guardianship, including financial support. Eligibility for financial support is means-tested.
  3. If the Council proposes to provide support, other than advice or information, on more than one occasion, it must prepare a plan. The Council must review the plan at least once a year. Regulations set out the procedure for plans and reviews.
  4. There are separate procedures for reviews where the Council provides financial support payable periodically (Regulation 18) and support services other than financial support payable periodically (Regulation 17).
  5. The Council has provided support to maintain contact between D and her birth parents. The Council provided the support as assistance in cash. The procedure for reviews of D’s support plan is set out in Regulation 17.
  6. Regulation 17 says the Council must review the provision services:
    • if any change in the person’s circumstances which may affect the provision of special guardianship support services comes to the Council’s notice;
    • at any stage in the implementation of the plan the Council considers appropriate; and
    • in any event, at least annually.
  7. Where services are being reviewed, the same procedure for assessment set out in Regulations 12 and 13 must be followed in reviews as they are in a first assessment. In other words, the Council must consider a person’s need for support, including financial support, at each review and at least once a year.
  8. Following an assessment or review, the Council must prepare a written report.

Mrs M’s complaint

  1. At the time the Special Guardianship Order was made in 2012, Mrs M says the Council advised she would not be eligible for Special Guardianship Order Allowance so she declined a financial assessment.
  2. In August 2017, having conducted her own research, Mrs M says she requested an assessment for Special Guardianship Order Allowance. The Council undertook an assessment and agreed to pay Mrs M Special Guardianship Order Allowance.
  3. Mrs M complained to the Council. She complained the Council had not told her she might be eligible for financial support or offered an assessment when she informed the Council of significant changes in her circumstances, including the birth of her own children and her decision to give up work. Mrs M said she had read the Regulations and believed the Council should have offered an annual financial review. Mrs M believes she has missed out on £58,000 of support as a result of fault by the Council.
  4. The Council said Mrs M had misunderstood the regulations. It said it would only conduct an annual financial review for Special Guardians who receive a weekly allowance. The Council said the arrangements are different for Special Guardians who receive an annual payment towards contact costs.
  5. Mrs M remained dissatisfied and complained to the Ombudsman.

The Council’s response to my enquiries

  1. The Council’s account of what happened in 2012 is different. The Council says that Mrs M and her husband declined a full financial assessment for Special Guardianship Order Allowance because they did not want an allowance and preferred to be financially independent of the Council. The Family and Friends Full Assessment Report which records Mrs M’s views says Mrs M and her husband provided evidence of their income and expenditure but did not want these recorded on file. The Council provided a copy of a partially completed financial assessment form which records Mrs M’s husband’s salary but no other details. The form is undated and incomplete. This supports the statement in the Assessment Report that Mrs M and her husband did not want details of their finances recording or special guardianship order allowance at the time. The Report notes that Mrs M’s husband is a financial advisor and has a good grasp of matters relating to his financial position. The assessment concludes that the couple will be able to provide for D independently of support from the Local Authority if it is their wish to do so in the long-term.
  2. The Council also provided a copy of an SGO support plan, completed in July 2012, which reiterates Mrs M and her husband’s wish not to receive Special Guardianship Order Allowance.
  3. The Council says Mrs M and her husband received copies of all documents, including the Assessment Report and SGO support plan, when they were made party to the care proceedings in 2011/2012. The care proceedings ended with the Court making a Special Guardianship Order in their favour.
  4. The Council has provided a sample of its email correspondence with Mrs M since 2012. The emails largely concern arrangements for contact between D and her birth parents. Mrs M refers to changes in the family’s circumstances in her emails, and in particular the problems she encountered with contact arrangements following the birth of her own children. She does not, however, request financial support or a re-assessment.

Consideration

  1. Regulations require a council to conduct a review, following the same procedure as an initial assessment, at least once a year if they provide financial support or support other than financial support payable periodically.
  2. Having decided to provide periodic assistance in cash to support contact between D and her birth parents, the Council should have conducted a review at least once a year. The review should have considered the family’s need for financial support. Failure to do so is fault.
  3. However, I do not consider any fault has caused Mrs M injustice. It is clear from the Council’s evidence that Mrs M was aware means-tested Special Guardianship Order Allowance was available but chose not to undergo a full means test in 2012. The papers suggest that not only did Mrs M not wish to undergo a full means test, she did not want financial support from the Council. She could have asked the Council for a re-assessment at any time, as she did in 2017. Had the Council carried out a review every year, I cannot now say when Mrs M would have changed her mind about her wish to be financially independent from the Council. It seems reasonable to assume Mrs M approached the Council as soon as she changed her mind and thought she would be eligible for means-tested support, and this was in 2017. In these circumstances, there are no grounds for the Ombudsman to recommend a remedy or suggest the Council backdate the Special Guardianship Order Allowance in awarded Mrs M in 2017.

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Final decision

  1. The Council should have carried out a review of D’s Special Guardianship Support Plan and considered the family’s need for financial support at least once a year. However, any fault has not caused Mrs M injustice. I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman

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