Decision : Upheld
Decision date : 21 Jan 2019
The Ombudsman's final decision:
Summary: Mr G complains the Council refused his request for Special Guardianship Order Allowance. The Council said he was not entitled to financial support because he is a private applicant. The Council was wrong. The Council has agreed to consider his request properly.
- Mr G complains the Council has refused his request for financial support to care for his grandson, B.
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 may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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
- The Ombudsman does not decide whether the Council should provide financial support for Mr G to care for B. This is the Council’s job. The Ombudsman’s role is to check the Council made its decision properly.
- I have considered:
- information provided by Mr G;
- information provided by the Council;
- Bromley Children and Young People Service Safeguarding and Social Care Division Procedures Manual (online), Section 5.3 Special Guardianship.
- London Borough of Bromley Special Guardianship Policy and Procedure (undated);
- Special Guardianship Regulations 2005; and
- Special guardianship guidance. Statutory guidance for local authorities on the Special Guardianship Regulations 2005 (as amended) by the Special Guardianship (Amendment) Regulations 2016 issued by the Department for Education in 2017.
What I found
- Mr G is a Special Guardian for his grandson, B.
- The Council has been involved with B since 2015 when family raised concerns about his mother’s drug use. The Council enrolled B’s mother on a parenting course, but did not consider B to be at risk of harm.
- Mr G says he stepped in to care for B in December 2015 because of his concerns about B’s mother’s ability to care for him. Mr G says the Council advised him to obtain a Special Guardianship Order and paid for his application and legal costs. The Council also paid a one-off setting up grant.
- Mr G requested financial support to care for B. He believes B would have been in care if he had not stepped in.
- The Council refused Mr G’s request. It said it has no obligation to support private applicants with finances.
- 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.
- Councils can provide financial support if they consider it is necessary to ensure a Special Guardian can look after a child. Regular financial support is known as Special Guardianship Order Allowance. Before providing support, the Council must carry out an assessment. Regulations set out who is entitled to an assessment, the procedure for the assessment, and what a council must do if it decides not to carry out an assessment.
The Council’s response to Mr G’s request for support
- The Council says Mr G requested financial support in September 2017 when he applied for a Special Guardianship Order. The Council’s records say, “Mr G was frustrated because I informed him that he would not be entitled to financial support because he is a private applicant.”
- Mr G complained. The Council told him again that as a private applicant, he was not entitled to financial support. Mr G remained unhappy and complained to the Ombudsman.
- The Council has not considered Mr G’s need for financial support. In response to my enquiries, the Council referred me to the department’s (undated) policy which says, “In the case of private Special Guardianship applications, the Local Authority does not provide a Special Guardianship Allowance.” The Council suggested Mr G could have raised his concerns in court when he applied for his Special Guardianship Order and questioned whether the Ombudsman could investigate the matter.
- Financial support for Special Guardians is a matter for the Council, not the Court. Mr G was correct to address his request for support to the Council, not the Court. The Ombudsman regularly investigates complaints about financial support for special guardians. We recently issued a special report to highlight the lessons learned from our investigations. The report, Firm foundations: complaints about council support and advice for special guardians, is available on our website.
- Chapter 2 of the Special Guardianship Regulations 2005 deals with the provision of financial support. The Regulations do not discriminate between private applications for Special Guardianship Orders or any other group. A council may pay Special Guardianship Order Allowance to anyone who holds a Special Guardianship Order if the council considers it necessary to ensure the Special Guardian can look after the child.
- Chapter 3 of the Special Guardianship Regulations 2005 deals with assessment, including assessment for financial support. Regulation 11 lists two groups of people: those who must receive an assessment at their request, and those who may be offered an assessment.
- If the council decides not to carry out an assessment for people in the second group, it must give them notice of its proposed decision in writing, including reasons for the decision. The person who requested the assessment must be allowed at least 28 days to make representations in relation to the decision.
- Mr G is in the second group. The Council refused to carry out an assessment. The reason it gave – the fact Mr G is a private applicant – is invalid. The Council did not give Mr G notice of its proposed decision in writing or allow him 28 days to make representations. This is fault.
- I note that the Council’s undated Special Guardianship Policy and Procedure, which says the Council will not pay special guardianship order allowance to private applicants, contradicts the Council’s online manual. The online manual more accurately reflects the Regulations. The Council has since informed me the undated policy was obsolete and has been withdrawn.
- The Ombudsman has published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
- Mr G has suffered injustice as a result of fault by the Council: the Council has failed to properly consider his request for financial support, and he has had to complain in order to challenge the Council.
- To remedy this injustice, I recommend the Council:
- review its policies and procedures to ensure they comply with the law and Government guidance;
- following the review, ensure staff are aware of the Council’s revised policies and procedures and that the obsolete policy has been withdrawn;
- consider Mr G’s request for financial support in line with the Regulations;
- apologise to Mr G for its failure to properly consider his request.
- contact all people for whom the Council has completed court reports for private Special Guardianship Order Applications in the last 2 years and invite them to request an assessment;
- the Council should then consider any requests in line with the law and Government guidance.
- The Council has accepted my recommendations, so I have ended my investigation.
Investigator's decision on behalf of the Ombudsman