Decision : Upheld
Decision date : 08 Feb 2019
The Ombudsman's final decision:
Summary: The Council was not at fault for reducing Ms B’s special guardianship allowance. It complied with Regulations by having regard to a comparable fostering allowance, but by not duplicating other benefits Ms B receives. The Council was, however, at fault for failing to properly respond to Ms B’s request for further information for three months in 2018. It has already apologised for the delay, so does not need to take further action.
- The complainant, whom I refer to as Ms B, complains that the Council has reduced the allowance it gives her as a special guardian for her grandson. She says the Council will, in future, deduct the value of the child benefit she receives from her allowance. She says the Council’s policy – which it gave her a copy of in 2016 – says it should not do this.
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 investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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)
- 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.
How I considered this complaint
- I spoke to Ms B about her complaint, and considered information from Ms B and the Council.
- I wrote to Ms B and the Council with my draft decision and considered their comments.
What I found
- Ms B is a special guardian for her grandson, and has been since 2013. She has received a special guardianship allowance since becoming a guardian.
- In 2016, the Council wrote to Ms B and said it had mistakenly been making child benefit deductions from her allowance. It said it should not have done that, because she received income support. It paid her £2,666.51 – the value of the child benefit deductions it had made.
- The Council wrote to Ms B again in January 2018, and said it would begin making child benefit deductions from her allowance again. It said it should have done this before, but had not done so. It said it would not seek to recover the overpayment, because the fault was the Council’s, not Ms B’s.
- Ms B wrote back to the Council, and said the Council had also taken this ‘new’ approach until 2016, when it told her it would not make child benefit deductions from the allowances of those guardians who received income support. She said this was because child benefit deductions have already been made from income support before she receives it, so, with the Council’s new (and pre-2016) approach, the deduction is made twice.
- In February the Council told Ms B that it was trying to clarify the issue with the Department for Work and Pensions (which issues child benefit and income support, among other benefits). The Council said that, until it had managed to get this clarification, it would not make the planned deductions from Ms B’s allowance.
- In March the Council wrote to Ms B again and said it had now received written advice from the Department of Work and Pensions, which said it does not deduct child benefit from income support before paying it. The Council said that, because of this information, it would continue with its planned deductions from Ms B’s allowance.
- Ms B told the Council that its own policy said child benefit would not be deducted from the allowances of guardians who received income support. The Council agreed to meet her to discuss the matter further.
- The Council met with Ms B on 12 March, and subsequently wrote to her. In its letter it apologised for its approach up to January 2018, but said it now had the right information and would be making the correct deductions from her allowance.
- The Council wrote to Ms B again on 11 July, and said, again, that changes may be made to special guardianship allowances to reflect the correct Regulations and policy. It gave Ms B the name of an officer to whom she could speak about the changes.
- On 12 July Ms B emailed the named officer and asked for copies of the Regulations and policies which the Council referred to in its letter the previous day. She asked for details of, and an explanation for, the changes to her allowance. She also asked for a copy of the document which set out fostering allowances paid by the Council. After speaking to the officer on the telephone, she emailed the Council again on 18 July and asked for the same information.
- It appears that the Council did not provide this information to Ms B until 23 October. It apologised for not responding sooner; however, it reiterated the position it took in March 2018, and said it would make deductions from her allowance in line with regulation 13 of the Special Guardianship Regulations. It said councils cannot duplicate other payments made to a guardian, such as child benefit. It did say, however, that the disability living allowance and higher-rate child tax credits which Ms B received because of her grandson’s disability would be disregarded when assessing her financial circumstances.
- As of January 2019, Ms B receives a special guardianship allowance of £86.82 per week.
Law and guidance
The Council’s pre-2018 policy
- The policy the Council provided to Ms B does not mention that special guardians who are in receipt of income support will not have child benefit deductions taken from their allowance.
- However, Ms B refers to the Council’s response to a freedom of information request in July 2016, which is available online. This said, “Child benefit is deducted from the [special guardianship] allowance, unless the guardian is in receipt of income support”.
Standardised means test model for adoption and special guardianship financial support
- The government issued this model, for use by councils when deciding financial support to special guardians, in 2005. The model is suggested only, and therefore councils have no duty to use it.
- The model acknowledges that many councils decide special guardianship allowance by starting with the allowance they pay foster carers, and then deducting child benefit, in recognition that special guardians can claim child benefit but foster carers cannot.
- However, the model recommends that, when a special guardian is in receipt of income support, councils do not deduct child benefit from the allowance.
Special guardianship guidance
- This guidance – updated in January 2017 – issues statutory guidance for councils on the Special Guardianship Regulations.
- The guidance refers to Regulation 13 and says that, in deciding the financial support to give a special guardian, councils must take account of any other benefit which is available as a result of the person becoming a special guardian. It says financial support cannot duplicate any other payment available to the special guardian.
- The guidance also says that, in determining the amount of any ongoing financial support, councils should have regard to the amount of fostering allowance which would have been payable if the child were fostered.
The Council’s fostering allowances
- The Council pays foster carers an allowance of £143 per week for each child aged between 5 and 10.
- The Council also pays carers two weeks’ allowance every year for holiday allowance, and an extra week’s allowance each for birthdays and Christmas.
- This means a foster carer of a child aged between 5 and 10 will receive £154 per week from the Council.
- Ms B says the Council should not be deducting child benefit and chid tax credits from her special guardianship allowance. She says this is because she also receives income support.
- The government’s 2005 ‘standardised means test model’ – which recommends that councils do not make child benefit deductions when the special guardian receives income support – is only a ‘suggested’ model, which means councils do not have to use it, and I would not find fault with a council for failing to use it.
- However, councils must ensure they comply with the Regulations and accompanying statutory guidance when deciding special guardianship allowances.
- The statutory guidance says councils must have regard to the amount of fostering allowance which would have been payable if the child were fostered. It also says councils must not duplicate other payments a special guardian receives as a result of becoming a guardian (such as child benefit and child tax credits).
- Fostering allowances take into account that foster carers cannot claim child benefit or child tax credits, because they do not have parental responsibility for the child(ren) being fostered. If a special guardian who claimed these benefits also received the full fostering allowance, then, overall, they would be receiving more than a foster carer caring for the same child.
- Ms B receives an allowance of £86.82 per week. The Council has worked this out by starting with its fostering allowance, and deducting child benefit and child tax credits from it.
- In taking this approach, the Council has complied with its statutory duties. It has had regard to the fostering allowance (by starting its calculations there) and has not duplicated other payments Ms B receives (by deducting child benefit and child tax credits, which would not be available to a foster carer).
- As a result, I have not found fault with the Council’s approach to Ms B’s special guardianship allowance.
- The Council’s communications with Ms B in the first half of 2018 were clear, and it responded effectively to concerns she raised (including by holding a meeting with her). It also gave her a consistent message about the reason for future deductions during this period.
- However, in July 2018 Ms B asked the Council for more information about the proposed changes to her allowance, and the Council did not provide this information – or tell her where she could access it – until October. This meant she experienced uncertainty about the Council’s policy – which she thought contradicted its new approach – for longer than necessary.
- Given that the information the Council eventually provided to Ms B supported its approach and did not change its decision to reduce her allowance, her injustice from this delay was not significant. The Council has apologised for the delay, and I am satisfied that this was a suitable remedy, so I will not recommend that further action be taken.
- The Council was not at fault for reducing Ms B’s special guardianship allowance. It complied with Regulations by having regard to a comparable fostering allowance, but by not duplicating other benefits Ms B receives. The Council was, however, at fault for failing to properly respond to Ms B’s request for further information for three months in 2018. It has already apologised for the delay, so does not need to take further action.
Investigator's decision on behalf of the Ombudsman