Summary: Miss X complained about the Council’s decision not to backdate her Residence Order allowance. Miss X said a Council officer told her she was eligible for a back payment of £22,000 for the period between 2011 and 2015. I cannot say whether the Council officer told Miss X she was eligible for the back payment. However, Residence Order allowances are discretionary, and the Council decided not to backdate the payments. The Council was not at fault.

The complaint

1. Miss X complained about the Council’s decision not to backdate her Residence Order allowance. Miss X said a Council officer told her she was eligible for a back payment of £22,000 between 2011 and 2015. Miss X says the Council’s decision caused her distress, uncertainty and financial hardship.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke to Miss X about her complaint.
5. I considered the Council’s response to my enquiry letter.
6. I wrote to Miss X and the Council with my draft decision and gave them an opportunity to comment. I considered the comments before I made my final decision.

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What I found

7. A person may go to court to seek a Residence Order (known as a Child Arrangement Order since April 2014) under the Children Act 1989 for a child in their care. A Residence Order decides where a child should live and with whom. It allows the person with care of the child to share parental responsibility with the parents.
8. Councils may provide financial support to someone with a Residence Order. This is usually called a Residence Order allowance. The Council’s policy states payment of a Residence Order allowance is discretionary and any allowances paid is means-tested. The policy states applicants for an allowance must complete a financial assessment.

What happened

9. Miss X has a Residence Order for her grandchildren, child A, and child B which the Court granted in 2011. In 2011 Miss X asked the Council for financial support to help her care for the children. The Council told Miss X she should apply for the social security benefits she was entitled to as the children’s carer, and complete a financial assessment. The records show Miss X was reluctant to apply for benefits because the children’s mother was already claiming them. Miss X did not want to apply and get the children’s mother into trouble for fraudulently claiming benefits she was not entitled to.
10. In 2015 Miss X contacted the Council and asked it to consider paying her a Residence Order allowance. The Council carried out a financial assessment on Miss X and agreed to pay her a sum of money every two weeks. Miss X is still in receipt of the payment at the time of writing.
11. Miss X contacted the Council again in 2015. Miss X asked the Council to consider backdating the Residence Order allowance payments to 2011. The Council wrote back to Miss X and said financial support was based on the children’s current needs, and it was unable to complete a calculation based on Miss X’s past circumstances. The Council therefore said it would not backdate the payments.
12. In May 2018 Miss X complained to the Council. She said a Council officer visited her and told her the Council owed her £22,000 in back dated Residence Order allowance payments. She said she had telephoned the Council about the back payment and other Council officers were also aware of the matter. Miss X said she wanted the Council to pay her the money.
13. The Council responded to Miss X in June 2018 and July 2018. It told her it had spoken to the Council officer who no longer worked for the Council. The Council officer denied telling Miss X she was owed a sum of money and had no recollection of such conversation. The Council said although Miss X was eligible for payments in 2011, its records showed Miss X did not complete a financial assessment so it did not progress her request for financial support. The Council said Residence Order allowances were not an automatic entitlement and any payment was at the discretion of the Council.
14. Miss X wrote to the Council again in October 2018 and said she was not satisfied with the Council’s response. Miss X said she felt the Council had lied to her, and the Council officer did tell her the Council owed her £22,000.
15. The Council responded to Miss X in November 2018 and said it had reviewed her complaint. The Council said there was no evidence to support Miss X’s claim that a Council officer told her the Council owed her £22,000.
16. Miss X remained unhappy and in November 2018 she complained to the Ombudsman.

My findings

17. The records show the Council asked Miss X to apply for social security benefits in 2011 so it could consider whether to pay her an allowance. However, there is no information or records which show Miss X completed a financial assessment or applied for any benefits in 2011. Although Miss X was eligible for payments in 2011, Residence Order allowances are discretionary, and the Council was entitled to ask Miss X to apply for financial support through the proper means first. If Miss X disagreed with the Council’s decision in 2011 she could have complained to the Council at the time. The Council was not at fault.
18. Miss X asked the Council to consider backdating her payments when she started receiving a Residence Order allowance in 2015. The Council decided not to back date her payments. That was a decision the Council was entitled to make. Again, if Miss X disagreed with the Council’s decision in 2015, she could have complained to it at the time. The Council was not at fault.
19. Miss X complained to the Council in 2018. She said a Council officer told her the Council owed her £22,000 in back payments. The Council officer said they have no knowledge of any such conversation. There are no records or notes of the conversation between the Council officer and Miss X, and there are no telephone recordings. I cannot come to a view when it is one party’s word against the other, and there is no evidence to support either position. However, even if the Council officer did make such a statement, it would not have been legally binding. All Residence Order allowances are discretionary. The Council was clear about its position on the matter in 2015 and again in 2018. It decided not to exercise its discretion and declined to backdate the payment. The Council was not at fault.

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Final decision

20. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman