Decision : Upheld
Decision date : 29 Mar 2019
The Ombudsman's final decision:
Summary: Mr and Mrs G complain the Council has not satisfactorily remedied a complaint we investigated in 2018 which concerned its responsibilities to Mrs G as a special guardian for her grandson. We have upheld this complaint also, finding fault by the Council in its assessment of a special guardianship allowance paid to Mrs G. We consider this has caused Mrs G further injustice as distress. The Council has agreed action to remedy this injustice including undertaking a further reassessment of the allowance it pays to Mrs G.
- The complainants, whom I have called ‘Mr and Mrs G’ complain the Council has not satisfactorily remedied an earlier complaint they made to the Ombudsman. Their complaints concern the support offered to Mrs G as a special guardian for her disabled grandson ‘Child X’. They complain the Council:
- Has not liaised enough with another local authority area (‘Council 2’) where Child X lives with Mrs G.
- That Mrs G does not receive enough financial support paid as a special guardianship allowance. In particular, the Council wrongly takes account of Disability Living Allowance paid to Child X when calculating its payment.
- Mr and Mrs G say delay in resolving these matters has caused distress, further to that identified by our earlier investigation. They also say that Mrs G currently faces financial hardship because the special guardianship payments she currently receives are inadequate to help meet Child X’s needs.
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
- Before issuing this decision statement I considered:
- Mr and Mrs G’s complaint in writing to this office and further information provided in telephone conversations and emails.
- Information provided by the Council in response to written enquiries. This included listening to a recording of a meeting held with Mr and Mrs G in May 2018.
- An earlier decision taken by us which considered a previous complaint made by Mr and Mrs G and relevant to this complaint also.
- Relevant law and guidance as referred to in the text below.
- Comments made by Mr and Mrs G and the Council in response to a draft decision statement where I set out my thinking about this complaint.
What I found
- Mrs G is Child X’s parental grandmother. She lives outside the Council’s area. Mr and Mrs G keep separate houses, with Mr G living around 200 miles from Mrs G. Mrs G works one evening a week and at weekends.
- Child X has a diagnosis of autism, a learning disability, mental health issues, attention deficit hyperactivity disorder (ADHD) and an attachment disorder. These contribute to Child X displaying behavioural issues with episodes of self-harming, smearing, violent outbursts of temper towards people and property and so on. Because of his mental illness, Child X receives disability living allowance, a non-means tested benefit, at the highest rate for support with his care and at a low rate for support with his mobility needs.
Summary of our earlier investigation
- Mr and Mrs G first complained to us in 2017. Child X had lived with Mrs G since July 2015. In November 2016, Mrs G had become Child X’s special guardian. They complained the Council:
- Did not recognise that Child X entered Mrs G’s care as a looked after child given concerns the Council had for his welfare.
- That as a result Mrs G did not receive enough financial support for Child X between July 2015 and November 2016; at which point she became his Special Guardian.
- That further, because the Council did not consider Child X a looked after child, it had also provided inadequate support for Mrs G after November 2016, under the Special Guardianship Regulations.
- In March 2018, I issued a decision upholding the complaint on all three points. I found the facts supported the view Child X entered Mrs G’s care as a looked after child. Because the Council had not recognised this, I found it had not paid the correct amount of financial support to Mrs G between July 2015 and November 2016. I also found this led to it not providing enough support for Mrs G after November 2016. The Council wrongly took the view it did not have a continuing duty to provide support services to Mrs G because she lived in another local authority area. But this did not apply because Child X had been a looked after child before entering Mrs G’s care.
- Part of the support local authorities can provide special guardians includes financial support. I found fault in how the Council assessed the financial allowance paid to Mrs G after she became Child X’s special guardian. I found the Council had not considered loan repayments made by Mrs G when she had taken out loans to furnish her home for Child X’s arrival. It had also not considered if Mrs G had child care costs when calculating her allowance (an assessment for special guardianship allowance can disregard child care costs in some circumstances).
- I found further fault in extra payments made by the Council to Mrs G to support contact between Child X and his birth parents. I considered the sum paid by the Council did not take account of the difficulties Child X had travelling on public transport, something Mrs G had consistently explained to the Council.
- The Council accepted these findings and agreed to undertake a series of measures to remedy the complaint. It gave an unreserved apology to Mr and Mrs G and made a payment to them recognising the distress and time and trouble caused by its faults. It also paid for the shortfall in financial support received by Mrs G between July 2015 and November 2016.
- It further agreed:
- To contact ‘Council 2’ (Mrs G’s local authority area) within 20 working days to discuss Child X and Mrs G’s needs moving forward. It would find out what support Council 2 provided and/or what assessments were ongoing. It agreed to take over paying for any care needs Council 2 paid for and/or agree with that authority how the two authorities would assess Mrs G’s support needs moving forward. The Council agreed to provide whatever support Mrs G needed in line with Special Guardianship Regulations until November 2019.
- To complete a reassessment of the financial support paid to Mrs G. The Council agreed to meet with Mr and Mrs G to gather information reasonably required to complete that reassessment. This reassessment would consider Mrs G’s loan repayments and any childcare costs. It would also consider Child X’s contacts with his birth parents. The Council would then review payments made to support contact from April 2016 (excluding a three-month period before 20 January 2017 when a Court agreement covered payments). It would “consider the situation moving forward” and whether it still considered it necessary for Mrs G provide two contact visits a month as well as the funding provided for those visits.
- The matters in paragraph 13 are the subject of this investigation, because there is no dispute the other parts of the remedy completed satisfactorily.
Events since March 2018
- In March 2018, the Council paid Mrs G around £55 a week in special guardianship allowance and an extra £44 a month as a contribution to enable visits between Child X and his birth parents.
- In April 2018, the Council contacted Council 2, which confirmed its children services already knew about Child X and he had a dedicated social worker. In May 2018, Council 2 told it the social worker’s assessment of Child X remained ongoing.
- The meeting agreed as part of the remedy to the earlier complaint took place in May 2018. Mrs G’s local Ward Councillor arranged this (he has helped Mr and Mrs G in pursuing their complaint). Representatives from Council 2 also attended. At the meeting, the Council explained that it would pay for any services provided by Council 2. But that it could not pay for services until they were in place. Council 2 confirmed it was not providing social care services to Child X, but its assessment of his needs continued.
- At the meeting Mrs G said that from July 2015, when Child X first entered Mrs G’s care, she agreed that she would keep up weekly contact with his birth parents. From when she became special guardian in November 2016 this became twice monthly. Mrs G said she could only do this by using taxis. This involved a round trip of around 130 miles, costing around £130 (rising to £140 from 2018).
- Mrs G said Child X stopped having regular contact with his mother around April 2017 and with his father in October 2017. Between October 2017 and May 2018 his father had travelled to Mrs G’s home on around four occasions to see Child X. But he would only do so if Mrs G gave him ‘petrol money’ of £40 for each round-trip.
- At the meeting in May 2018 Mrs G also said Child X had contact with an adult sibling and another younger sibling over weekends. They would travel from the Council’s area to look after Child X overnight while Mrs G went to work. Mrs G paid for taxis to enable them to do this. Mrs G also said that she also paid the parent of one of Child X’s friends £20 to look after him while she was at work. This would usually be during the one evening a week that she worked.
- After the meeting in May 2018 Mrs G provided the Council with more details about her income. In June 2018, the Council wrote to Mr G with an update on its position about funding contact. It then revised that position in July 2018 in response to further representations from Mr G. It agreed payments of £4420 to cover the journeys taken by Mrs G to its area between April and November 2016 (34 weeks at a round-trip cost of £130). It paid just under £950 for the period November 2016 to October 2017. This represented 11 round-trips costing £130 minus money already paid to Mrs G at £43.80 a month.
- The Council said it would continue to pay Mrs G £43.80 a month. This would enable Mrs G pay the expenses asked for by Child X’s father, if he continued visiting once a month. The Council has said Mrs G can decide in the future about what contact Child X should have with his parents.
- Also by July 2018 the Council also completed its reassessment of Mrs G’s special guardian allowance. It took account of information she provided after the meeting in May including wage slips. It decided it could now only pay Mrs G between £30 and £40 a week in special guardianship allowance. The amount lowered over time as it took account of Mrs G’s loan payments for furniture which gradually dropped out of the calculation. The Council said this meant it had paid Mrs G more allowance than in should, although it would not seek recovery of any overpayment. It also agreed not to lower any allowance payments while this investigation completed.
- During this investigation Mr G told me Child X’s father had stopped visits to him (September 2018), although there was some sporadic contact in early 2019. Child X continues to have contact with two of his siblings. Currently, the Council has stopped all payments to Ms G to promote contact as Child X no longer has contact with his parents. It initially said any childcare costs incurred by Mrs G did not relate specifically to Child X’s disability and therefore implied it would not take account of these in its assessment. Although the Council has re-considered this position further to the draft decision I sent it in February 2019.
- During this investigation, the Council also said it intended issuing a new special guardianship plan setting out its support for Child X and Mrs G. However, it had deferred that until Council 2 completed its assessments of Child X and clarified what social care support it had assessed him as needing.
- It says that in July 2018 one of its social workers visited Mrs G at home with the Child X’s social worker from Council 2. It understood her happy with services provided by Council 2 then.
- The Council has provided a copy of a needs assessment completed by Council 2 that month. This identified that Child X had unmet needs to support him with education. The action points envisaged Child X’s school address these. It also recorded Mrs G being physically and emotionally exhausted caring for Child X and that it would identify support for her. The plan suggested Mrs G may want to resume contact between Child X and his parents but only if the Council paid for taxi fares.
- In October 2018, the Council produced its own children and families’ assessment for Child X. This detailed Child X’s diagnoses of mental health illness and resulting behaviours. It described him receiving weekly psychotherapy from his local Child Mental Health Services (CAMHS) located in Council 2’s area. It described his being out of education (see below). The Council said it had discussed Child X’s case with his social worker in Council 2’s area and said, “the current child in need plan in [Council 2’s area] is meeting all [Child X’s] unmet needs and it is financial support that [Mrs G] needs. We discussed respite and [Council 2 social worker] stated it is her intention to look into this but identifying the right support may be an issue [...] they will also be looking at a personal assistant and direct payments”.
- The assessment recorded Mrs G paying over £20 a day to take Child X to school and a further £20 a week taking him to medical appointments (these journeys by taxi). She also paid £140 a week for a taxi for Child X’s adult sibling and his brother to visit and look after Child X while she went to work. Mrs G also said her wages had recently dropped and she had run up debts since looking after Child X.
- The Council considered it could close its own involvement in Child X’s case through the assessment procedure. It says this is because Council 2 would pick up any unmet needs as part of its continuing work with Child X. It said the only support Mrs G needed from the Council at that time was financial. After it took this decision the Council sent a standard letter to Mrs G saying it had ‘closed the case’.
- Council 2 has responsibility for Child X’s education. He has an Education, Health and Social Care Plan (EHCP) detailing what extra help he needs to access education. He began secondary school in September 2018 but his placement soon ran into difficulties with the School identifying it struggling to meet Child X’s needs. He is therefore currently out of school and receiving home tuition while his EHCP is under review. Before his school placement ended Council 2 agreed to fund Child X’s education transport. The current EHCP for Child X does not identify him having any social care needs.
Relevant law and Council policy
- To come to a view on this complaint I have first considered the Special Guardianship Regulations 2005 and associated guidance.
- I note first Regulation 3. This says the Council must provide special guardianship support services. It defines these as:
- financial support;
- services to enable groups of special guardians or children to meet;
- assistance to support contact between the child and their parents or relatives;
- therapeutic services for the child;
- help for the continuance of the relationship between the child and special guardian; to include training for the special guardian to meet any special needs of the child and respite care;
- counselling, advice and information.
- Guidance accompanying Regulation 3 says that local authorities can consider giving a person help in cash where it considers it appropriate. It gives as examples “giving a special guardian cash to pay a babysitter so they can have a break for an evening or money for petrol when a contact visit has been arranged”.
- Regulation 4 allows the Council to arrange for another body to provide guardianship support services. This includes through another local authority.
- Regulation 5 says that where a child was previously a looked after child the authority ‘where the child was last looked after’ remains responsible for providing services for three years after the making of the special guardianship order.
- Regulation 6 covers financial support. The Council can pay this in circumstances including where:
- It is necessary to ensure the special guardian can look after the child;
- Where the child “needs special care which requires a greater expenditure of resources than would otherwise be the case because of illness, disability, emotional of behavioural difficulties or the consequences of past abuse or neglect”.
- Guidance accompanying the second bullet above says: “payment of financial support is intended where the child’s condition is serious and long-term. For example where a child needs a special diet or items such as shoes, clothing and bedding need to be replaced at a higher rate than would normally be the case with a child of similar age who was unaffected by the particular condition”.
- Regulation 10 allows the Council to place conditions on paying financial support, including requiring special guardians tell it of relevant changes in circumstances. For example, if the special guardian has any changes in their financial circumstances.
- Regulation 13 requires the Council to ensure that payments made to special guardians do not “duplicate any other payment available to the special guardian”. The guidance says that before paying any allowance the Council must therefore consider:
- The special guardian’s financial resources including any tax credit or benefit available because the child lives with them.
- The amount required by the special guardian in respect of their reasonable outgoings and commitments.
- The financial needs that relate to the child (for example, because of special diet or need for replacement bedding) and the resources of the child (for example a trust fund).
- Any payments must also take account of any comparable fostering allowance. This includes taking account of any enhancement payable for a particular child.
- Guidance accompanying this Regulation also says the Council must disregard “any special care […] which requires a greater expenditure of resources than would otherwise be the case because of illness, disability, emotional or behavioural difficulties or the consequences of past abuse or neglect in relation to a child who has been previously looked after by the authority”.
- Regulation 14 requires local authorities to draw up a plan setting out what services it will provide and covering matters such as objectives for the child; how it will evaluate those and how it will monitor/review the plan.
- Regulation 18 provides for the Council to review any financial support it pays periodically.
- The Council’s policy says it takes account of these Regulations. When it comes to financial support the Council uses a means test model published in 2006 by the Government. This adds up family income and then considers certain expenses, disregarding some of that expense before arriving at a final figure for support.
- Guidance accompanying the means test says the Council should record benefits received by all members of the household, although it does not specifically refer to Disability Living Allowance (DLA). The Council also produces its own guidance for officers but this too provides no advice on how it should treat DLA income received by children.
- The model allows the Council to disregard costs for childcare. Accompanying guidance says it should allow for “reasonable” childcare costs taking account of family circumstances and local costs for childcare. It says assessment should take account of any childcare element paid as part of a tax credit award.
- In comments in reply to my enquiries the Council says it can consider making “exceptional payments” to cover extra costs associated with disability.
- It is now 12 months since I issued my decision on Mr and Mrs G’s first complaint. The remedy to that complaint held out the hope that within three months Mrs G would have greater certainty about what support the Council would provide her and Child X moving forward. I recognise therefore Mr and Mrs G’s frustration there remains no such certainty. The Council has not completed a plan saying what support it will offer. While Mr and Mrs G remain especially unhappy with the extent of the Council’s financial support.
- I accept the Council faces challenges in drawing up such a plan. The Council must have support for special guardians that can respond to change. Clearly both Mrs G and Child X have had changes in circumstance since Child X first went to live with Mrs G. His needs have become greater. While Mrs G’s employment patterns have changed and reduced in response to the greater demands this places on her. I find this contributes to some of the uncertainty about what support the Council can offer.
- Taking account of this I am not minded to find fault in the Council’s position on any non-financial support it might offer to Mrs G and consequently its contacts with Council 2. I consider immediately after issuing my decision last year the Council could have reacted sooner to contact Council 2. I also think the letter it sent Mrs G in October 2018 caused unnecessary confusion as it did not properly explain why the Council had ‘closed’ Child X’s case.
- But I consider these matters while frustrating, have not disadvantaged Mrs G. Clearly by May 2018 the Council knew Council 2 was assessing Child X’s needs and that remained ongoing. It confirmed it would meet the cost of any social care services Council 2 went on to provide. It considered this approach consistent with Regulation 4 and its responsibilities under Regulation 5 and I agree. Its position on this has not changed.
- In May 2018 Council 2 had not offered any direct services to Child X and that remains the position. Its Children’s Services have supported Mrs G with Child X’s education needs and accessing suitable support from CAMHS. But none of this support falls under those ‘support services’ defined in Regulation 3. Council 2 has not arranged any direct services to help Child X or Mrs G in meeting Child X’s social care needs, such as respite care, which might come under Regulation 3.
- There is nothing in the papers I have read to suggest that Mr or Mrs G have any complaint with Council 2’s Children’s Services. I consider it implicit in the papers that Council 2 takes a patient approach with Child X given his complex needs. Council 2 may yet step in and provide more direct social care services but until it does there is little the Council can do other than keep a watching brief.
- This also has implications for the plan setting out services for Mrs G. I understand why the Council had not produced a plan while waiting for clarity about what social care services Child X needs. I consider at this stage it has probably waited long enough. But though I find the delay unfortunate, for the reasons set out above I do not consider the Council at fault in its handling of these matters since March 2018.
- This leaves me therefore to consider the financial support the Council gives to Mrs G. Here I consider the Council remains at fault.
- I consider the fault stems in part from the Council’s decision to use the standard assessment model when deciding what payment it will make to special guardians. There is no inherent fault in using this model but it remains subservient to the Regulations.
- Regulations 6 and 13 clearly set out an expectation the support offered to special guardians of disabled children must take account of their extra needs compared to children without such disabilities. There can be no dispute that Child X has such extra needs. He would not receive DLA if this was not the case.
- Yet the standard assessment model gives the Council no guidance on how to take such account in practice. It implies, but does not say, the Council should include DLA in its calculation. But it does not allow for any extra allowance when calculating allowable expenses. I find there is an assumption that in the means test a disabled child’s allowance may start from a higher base. This is because of the linkage between special guardianship allowances and fostering allowances, with many authorities paying a higher fostering allowance to foster carers looking after disabled children. But the Council does not have such extra allowances in this case, instead paying its foster carers on their skills and qualifications, rather than linking payments to the needs of the child. So, this assumption of a higher base does not apply here.
- In which case I consider the Council should have considered some other way to take account of Child X’s extra needs. I have noted some authorities discount DLA received by children when calculating special guardianship allowance. Others assume a disregard of 50%. As there is no clear caselaw or guidance in this area I do not think I can be prescriptive and say exactly how the Council should treat this income. But I consider simply adding DLA into the assessment calculation and not taking account of the child’s extra expenses implicit in its award, runs contrary to the expectations in Regulation 6 and 13. This must result in a finding of fault.
- I also consider the Council must consider the impact of the public-sector equality duty. The Equality Act 2010 requires local authorities not to discriminate in delivering services on grounds including disability. I consider the Council’s current model of assessing payments may inherently disadvantage disabled children. Because it treats their DLA like any other income, meaning the support offered a special guardian with a disabled child is the same as that given to one with the same income, but without disability.
- I note that during this investigation the Council indicated a willingness to reconsider its approach to these payments and I welcome that.
- I accept that currently I have not seen a significant quantity of evidence for what extra expenses Mrs G incurs because of Child X’s disabilities. I consider his need for travel by taxi as opposed to public transport demonstrated. Although some of that spending may reduce now Council 2 accepts the need to pay for his school transport. But I have not seen evidence that points towards Mrs G having higher costs arising from Child X’s care, such as clothing or bedding costs higher than an average child of his age. Yet I do not find the Council has explored this in any detail. This is something that arises from the use of the standardised model which does not encourage such enquiries.
- In addition, even using the standardised model I do not consider the Council has provided a coherent response for why it has not allowed childcare expenses for Mrs G. The guidance accompanying Regulation 3 makes clear a local authority can consider making allowance to help a special guardian’s childcare costs; so long as this does not duplicate an existing child tax credit award. The comment made that Child X’s childcare costs were not caused by his disability appeared true, but also irrelevant in this context. I am therefore grateful the Council has signalled a re-think here also.
- Consideration of this matter could also run alongside a reconsideration of the potential need to fund continuing contact between Child X and his family. I consider there is no fault in how the Council has resolved the matter of expenses on contact incurred by Mrs G before May 2018. I also accept the Council cannot agree to fund contact which is not happening. But Mrs G made clear in May 2018 that Child X still saw some of his siblings. While they provide childcare for Mrs G, the Council should also consider the potential benefit to Child X of preserving some contact with his birth family, if not his parents.
- Clearly the position on contact also remains fluid and I need to consider this also. This is therefore reflected in the agreed action to remedy this complaint.
- In summary, therefore I remain concerned the allowance Mrs G receives is insufficient. Because it does not properly take account of Child X’s disability, Mrs G’s childcare costs and contact arrangements. Further drift on all these matters is not good for any of the parties involved. The Council’s faults have caused more distress to Mr and Mrs G because there remains a lack of certainty about what financial support Mrs G should receive. This is their injustice. Although I also consider some uncertainty remains inherent. Because of Child X’s needs and the variations around contact the Council cannot simply set its financial support in stone. I note here the impact of Regulations 10 and 18 which require the Council to ask for information in support of its financial assessment and review that assessment periodically.
- To remedy the injustice identified at paragraph 67 the Council has agreed that within 20 working days of a decision on this complaint, it will:
- Provide a further apology to Mr and Mrs G recognising the findings of this investigation.
- Make a further payment of £300 to Mr and Mrs G in recognition of their distress.
Explanatory notes in support of agreed action
- Mrs G’s support plan will take account of any social care services provided by Council 2 that fall within the scope of special guardian support services. The Council should not delay the plan further if Council 2’s assessment of Child X’s needs remains incomplete. It can instead amend the plan later to take account of Council 2’s actions. The priority must be to finalise the financial support.
- The plan should set out how changes to financial support can be made. Where needs fluctuate (for example around contact) the Council may want to indicate a maximum ceiling cost of trips it is willing to fund each month and give Mrs G a float to that value. It could then top that up subject to Mrs G providing receipts when she incurs expenses, providing her with contact details to enable this. The Council should make clear it accepts the necessity for Child X to use taxis if travelling to its area but may consider if it reasonable for an adult sibling to also use this method of transport.
- The Council is not restricted to only asking for information about Child X’s disability needs, childcare costs and contact. It can ask for any information reasonably required to complete its assessment. But it should also bear in mind what records it is reasonable and proportionate to expect Mrs G to have retained, especially if seeking confirmation of costs incurred in 2017 or 2018.
- The agreed action does not require the Council to backdate every calculation to January 2017. It can take account of when changes in circumstance occur. In its financial reassessment the Council should consider if its special guardianship payments, which are based on fostering allowances, should also include allowance for birthday and festive allowances (paid to foster carers).
- As part of its review of policy the Council has agreed it will identify any other children similarly affected to Child X; i.e. those to whom it pays special guardianship allowance where the child is disabled. It should commit to reviewing their payments also, in line with its new policy once this is agreed.
- For the reasons set out above I have upheld this complaint, finding fault by the Council causing injustice to the complainants. The Council has agreed action that I consider will remedy the injustice. I can therefore complete my investigation satisfied with its actions.
- 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.
Investigator's decision on behalf of the Ombudsman