Summary: Mrs X complained the Council failed to pay her Special Guardianship Allowance between 2015 and 2017. She said that caused her financial hardship. She said the Council also delayed in restarting her Special Guardianship Allowance in 2017 and in dealing with her complaint. The Council was at fault for stopping Mrs X’s Special Guardianship Allowance. The Council has already paid Mrs X the Special Guardianship Allowance it owed her and an additional £3300. That remedies the fault.

The complaint

1. Mrs X complained the Council failed to pay her Special Guardianship Allowance between 2015 and 2017. Mrs X was unhappy about the time it took the Council to restart the Special Guardianship Allowance payments and for it to consider the complaint.
2. The Council has backdated the Special Guardianship Allowance and paid Mrs X £3300 in recognition of the fault. Mrs X said the amount offered does not remedy the injustice caused.
3. Mrs X also complained the Council did not follow the correct adoption procedures after Y’s sibling, Z was adopted in 2015. She said the Council’s decision to have Z adopted by a non-biological family member meant the siblings have not had the opportunity to grow up together.

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What I have investigated

4. I have investigated the complaint set out in paragraph’s one and two. I have explained the reason for not investigating the complaint in paragraph three at the end of this decision.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
7. 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)
8. 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)
9. 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

10. I spoke to Mrs X and considered her written complaint to the Council and its response.
11. I made enquiries of the Council who provided information including the financial payments made to Mrs X and her case records.
12. I referred to the:
• Department for Education’s statutory guidance, the ‘Special guardianship guidance’ 2017 and ‘Getting the best from complaints’ 2006.
13. Mrs X and the Council both had the opportunity to comment on my draft decision. I considered their comments before completing my final decision.

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What I found

Special Guardianship Orders

14. A Special Guardianship Order 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, the child is no longer ‘looked after’ by the council once the court makes the order.

Special Guardianship Allowance

15. Councils can provide financial support if they consider it is necessary to ensure a Special Guardian can look after a child. The Council only provides financial support for children who it previously looked after.
16. Before paying a Special Guardian an allowance, the Council completes a financial assessment to decide whether support is necessary.

The statutory complaints procedure

17. There is a formal procedure, set out in law, which the Council must follow to investigate complaints made by looked-after children and children in need. This procedure also applies to complaints about Special Guardianship Allowance.

The procedure involves three stages:

18. Stage one - local resolution by the Council. This stage takes between ten and twenty working days.
19. 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 the council to consider their complaint at stage three. A stage two investigation for a complex case should take no more than 65 working days.
20. 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

21. In 2012, the Court made Mrs X the Special Guardian for Y. The Council completed a financial assessment and agreed to pay Mrs X a Special Guardianship Allowance of £273.10 a fortnight. The Council agreed to pay the allowance until Y was 18 years of age based on annual financial reviews.
22. In 2015, the Council said it had overpaid Mrs X’s allowance. There were several emails between Mrs X and the Council as it tried to resolve the matter. The Council stopped Mrs X’s allowance to recoup the money it said it had overpaid. The Council failed to restart Mrs X’s payments.
23. In December 2015, Mrs X emailed the Council and told it the Special Guardianship Order had not ended. She also disputed the Council had overpaid her. The Council did not respond.
24. Mrs X contacted the Council in October 2016 after she discovered Y’s sibling Z had been adopted. Mrs X said she was unhappy about the adoption of Z. She also referred to the Council stopping her allowance in 2015. The Council did not respond to that email. Mrs X sent a further email formally complaining about the matter in November 2016.
25. The Council responded to Mrs X’s complaint in December 2016. It said it understood Mrs X’s primary complaint to be about the adoption of Z. It said the Court had made a decision on Z ‘s adoption a year ago after Mrs X told the Council she was not prepared to be assessed to be Z’s permanent care. The complaint response did not address the non-payment of the Special Guardianship Allowance. The Council gave Mrs X eight weeks to ask for a stage two complaint investigation. Mrs X did not do this.
26. In May 2017, following family court proceedings, Mrs X said she became aware the Council should have been paying her the Special Guardianship Allowance. She contacted the Council about this and in October 2017, sent it a new financial assessment form. The Council emailed her in November asking for further information to help it complete the assessment. It paid her an emergency payment of £800. In December 2017, the Council restarted Mrs X’s allowance for Y. Throughout this period, Mrs X and the Council were in regular contact about her request for it to backdate to October 2015.
27. In February 2018, Mrs X asked the Council to escalate her complaint to stage two. She was unhappy the Council had not dealt with her request for backdated payments. The Council did not respond to this email. In March 2018, Mrs X sent a further email to the Council saying it had not responded to her previous contact. The Council again failed to respond.
28. In July 2018, Mrs X complained to the Ombudsman. She was unhappy the Council had still not dealt with the backdated payment and about the adoption of Z to a non-biological family member.
29. The Ombudsman contacted the Council about Mrs X’s complaint. The Council agreed to consider it at stage two of the statutory complaints process. Mrs X contacted the Ombudsman again in October 2018 as despite being in touch with Mrs X, the Council had not resolved her complaint.
30. The Council sent Mrs X its stage two response in March 2019. The stage two investigation found no evidence on file as to why the Council had stopped the allowance. The Council accepted this should have been paid between 18 October and 2015 and 17 October 2017. The Council agreed to backdate the money owed to Mrs X at a higher rate of £176.90 a week instead of £136.55. This was an increase of £40.35 a week. The Council offered a total amount of £18422.87 to cover the missed payments.
31. The Council explained Z could not be placed in Mrs X’s care as the Court made the decision for Z to be adopted. The Council explained it could not overrule the Court’s decision. The Council did provide advice on how Y and Z could have written contact.
32. The Council considered the information provided by Mrs X about the effect the loss of Special Guardianship Allowance had had on her and her family, and the time it had taken for the Council to deal with the complaint. The Council considered this and made the following financial remedy:
• £300 for time and trouble;
• £1000 for distress; and
• £2000 for the effect the loss of the allowance had on the family.
33. The Council has paid Mrs X the above remedy.

My findings

34. The Council has accepted it was at fault for stopping Mrs X’s allowance in 2015. It has not got a record to explain why the Council stopped the payment. It has apologised for this and agreed to pay Mrs X the two years of missed allowance at the 2017 rate. That remedies the injustice caused.
35. Mrs X was also unhappy at the length of time it took the Council to restart her payments and to respond to her complaint.
36. Mrs X sent the financial assessment forms to the Council in October 2017. It contacted her in November and said it needed more information. It paid her an emergency payment of £800 at the end of November and restarted payments in December 2017. There was a short delay between Mrs X sending the forms and the Council restarting the payments however I fall short of finding that fault.
37. The statutory guidance requires councils to complete stage two investigations within 65 days. Mrs X contacted the Council in February 2018 and asked it to escalate her complaint to stage two. The only previous complaint Mrs X had sent to the Council in which she received a substantive response was in 2016. Therefore, her request for a stage two investigation was late. Regardless, the Council failed to respond to this email and to a further email she sent the following month and did not complete a stage two investigation. That was fault.
38. The Council did not start a stage two investigation into Mrs X’s complaint until the Ombudsman contacted it in August 2018. The Council should have completed the investigation by October 2018 however it failed to respond until March 2019. That was a delay of four months but an overall delay of twelve months. That was fault. That added to Mrs X’s frustration that the Council was failing to deal with her complaint.
39. The Council has paid Mrs X a financial remedy of £3300. This includes £300 for Mrs X’s time and trouble because of the delays in how the Council dealt with the complaint and £1000 for distress. The payment acknowledges the fault went on for a prolonged period. These payments are in line with the Ombudsman’s guidance on remedies. Therefore, I do not feel a further financial remedy is needed for the Council’s faults.
40. The Council also paid Mrs X £2000 to recognise how the loss of the allowance impacted on daily life such as not being able to take the children out on excursions and using public transport. That remedies the injustice caused.

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Final decision

41. The Council was at fault in failing to pay Mrs X Special Guardianship Allowance for two years and delays in dealing with her complaint. The Council has paid Mrs X the backdated allowance and £3300 in acknowledgement of the fault. That remedies the injustice caused. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

42. I did not investigate Ms X’s complaint about the adoption of Y’s sibling in 2015. This is because the Court made the decision for Y’s sibling to be adopted. The Ombudsman cannot investigate a complaint about what happened in Court.

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Investigator's decision on behalf of the Ombudsman