Summary: Mrs D complained the Council had unreasonably stopped paying Special Guardianship allowance even though it knew the family’s finances were very strained. There is evidence of fault leading to injustice for Mrs D and the Council has been asked to make a financial settlement and it will consider all relevant information when it assesses whether the family’s circumstances are exceptional and merit further financial support.

The complaint

1. The complainant, whom I shall call Mrs D, complains that: The Council unfairly withdrew the family’s special guardianship allowance without giving reasons for doing so. The appeal was delayed and the decision was to re-pay the allowance for 6 months, with a backdated payment given the child’s age, but without explaining why. The Council said the child ‘has no additional needs’, which is not the case.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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

6. I considered the information Mrs D provided with their complaint. I also made enquiries of the Council and assessed its response. I sent Mrs D and the Council a copy of my draft decisions and took their comments into account before reaching a decision.

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What I found

Special Guardianship and the Support Plan

7. Mrs D, and Mr D, obtained a Special Guardianship Order (SGO) for their grandson, E, in February 2016. Obtaining an SGO was a choice they were able to make. I note they originally decided to be assessed as foster carers but the assessment was not completed. An SGO gives parental responsibility, which fostering does not.
8. The Council accepts there is no evidence Mrs D saw a copy of the Special Guardianship Support Plan before the case went to court. This failure meant they did not have a chance to comment on the contents until the SGO was agreed. The Council says it now demands a signature to show that prospective Special Guardians have seen the plan, which is appropriate.
9. Mrs D said they were initially told by their social worker that ‘although the SGO assessment was 2 yearly we would not have a problem continuing to get this’. The failure to explain to Mrs D explicitly (prior to the hearing) that financial support for an SGO is discretionary and, in this case, anticipated to end after a maximum of two years, is fault. Although I cannot say whether Mrs D would have continued to seek an SGO, she may have revised her expectations as to the changes she could make to the house before E came to live there. This is fault and it caused Mrs D avoidable distress.
10. The Support Plan dated 2 March 2016 says; ‘A regular weekly payment is due for one year. This is reviewed on a yearly basis over the next two years. Extension of payment may be granted only if necessary, based on the child’s needs’. These are predominantly needs that cannot be met from universal services i.e. from services that are available to all families in the area. At that point, Mr and Mrs D would have been aware the payment was anticipated to last two years. This was further emphasized on 3 June where the letter explained how long the payment would last. I have seen some evidence suggesting, before April 2015, Mr and Mrs D were aware that payments might only be limited to a relatively short period of time. On the balance of the evidence, certainly by June 2016 it was clear that payment would probably not be ongoing.
11. In terms of support, Mr and Mrs D received a payment equivalent to basic fostering allowance of £105.30 following a means test. The Council accepts the June notification letter did not tell Mrs D the allowance was ‘age related’, which is fault. This did not cause Mrs D injustice because it was not a relevant factor at the time. Because this amount was the basic fostering allowance, it did not change (except for age related change) even when Mrs D’s finances were more stretched. This is not fault; the information as to the basis of the support is widely available. Nevertheless, the Council could have made this clearer to Mrs D.
12. As I said above, Mrs D says she was told before the hearing they would be means tested every two years although it should have been every year. The Council did not assess in 2017; this is fault but it did not cause Mrs D injustice. Means tests are intrusive so not having one would be of benefit. The payment continued although without any age-related uplift, which was fault. The letter responding to the complaint said; ‘The uplift would automatically have been increased’, which was not correct. Getting the payment rectified caused Mrs D time and trouble. The Council backdated the uplift once it knew she had not received it. The Council has said it now has new software, which automatically calculates this uplift. There is no ongoing fault.

After the first two years

13. On 9 January 2018, the Council told Mrs D the payments would be ending on 4 March 2018 unless there were ‘exceptional circumstances’. Mrs D sent evidence on 19 January and was told, on 1 February, that it would go to appeal. The panel wanted further evidence of the family’s financial circumstances even though she says she had already submitted it. Mrs D was then asked by three different officers to provide financial information. This was fault – the Council should have tasked one officer to do this and should do so in the future. It caused Mrs D distress as she felt no one in the Council was listening to her.
14. Mrs D also complained because E missed out on a referral to a particular service as E did not have a named social worker; she says the social worker’s manager did not agree to the referral. This was not fault. E was not considered a child in need and Mrs D could call the duty team for advice if she needed to. Mrs D also wanted the Council to give E a ‘life story book’ although there is no requirement for the Council to do this.
15. The Council accepts it failed to give Mrs D sufficient detail about why it had decided it was no longer appropriate to provide a financial allowance. This is fault and it caused Mrs D time and trouble identifying why the Council made this decision. The Council will now ensure it gives a fuller explanation of the reasoning behind panel decision making as soon as possible after the panel has met. I do not consider that either letter it sent to Mrs D provides this.
16. The Council’s financial assessment showed the family’s financial situation was worse than when E came to live with them. The Council has not acknowledged this directly although the financial assessments of the family are clear. Because of this, there is no evidence of fault. The Council said any further financial assistance would be based on the needs of the child. At the time the evidence was requested, E was being referred to the Child and Adolescent Mental Health Service (CAMHS) and Mrs D was applying for Disability Living Allowance (DLA). E was also due to see a psychotherapist in September. The Council agreed to continue to make payments until January 2019 because, by that point, it could consider whether E’s (diagnosed) needs, alongside consideration of the rest of the evidence, suggested it was appropriate to continue to provide financial support. This was appropriate and there is no evidence of fault. Therefore, although the appeal may have been delayed, because the Council continued to pay Mrs D, there is no injustice to her. As such, I am not making a finding on Council fault. Although Mrs D says the Department for Work and Pensions (DWP) agreed to pay E DLA without a diagnosis; this does not bind the Council to do the same. Further, the payment of Special Guardianship Allowance is discretionary. There is no evidence of Council fault.
17. The Ombudsman cannot tell Councils how to support families. However, when assessing what support to provide, we expect Councils to consider all the information in front of them. The Council has agreed it will reconsider E’s needs alongside the family’s financial situation. Although payments are discretionary, the Special Guardianship Regulations 2005 note the Council can make payments; ‘where (it) consider(s) that it is necessary to ensure that the special guardian or prospective special guardian can look after the child’. Mrs D is concerned she will be unable to continue to look after E unless she receives financial support. This should be part of the Council’s considerations too.

Complaints handling

18. The Council told Mrs D, when it responded to her complaint, that the Ombudsman was ‘the ultimate stage of the appeal process’. This is fault; the Ombudsman is independent of the Council and can only consider cases where a complainant believes there has been administrative fault. The Ombudsman cannot look at a complaint just because a complainant does not like a decision.
19. Although this did not cause Mrs D injustice; the Council should consider changing the wording it uses to make this clear in the future. The Council also accepts that when Mrs D tried to call the office to find out what was happening, her telephone calls were not responded to. This is fault and it caused Mrs D additional time and trouble.

Agreed action

20. For the Council to apologise for the fault in this Statement, within one month of the date of my decision, and to make a payment of £200 for distress and £200 for time and trouble within two months of the date of my decision.
21. For the Council to amend its procedures to ensure it explains why payments may be the same after reviews even if a Special Guardian’s financial situation has worsened. It should tell me, within three months of the date of my decision, what action it will take.
22. For the Council to amend its procedures to make it clear which officer should ask for information about a Special Guardian’s financial circumstances to ensure that only one person has responsibility. It should tell me, within three months of the date of my decision, what action it will take.
23. For the Council to provide fuller explanations of decision making as soon as possible after panels meet. It should consider this and tell me, within three months of the date of my decision, what action it will take.
24. For the Council to amend its wording on letters where it mentions recourse to the Ombudsman. It should do this within two months of my decision and confirm to me what action it will take.
25. For the Council to consider all the evidence it has when deciding whether to provide support to the family in the future. It should make arrangements to assess the family within three months of my decision and to backdate any allowances missed.
26. For the Council to remind staff of the importance of responding to telephone calls within three months of the date of my decision.

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Final decision

27. I have reached a finding of fault leading to injustice and the Council has agreed actions to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman