Summary: The Council was at fault for failing to properly consider its discretionary powers in deciding not to provide a child arrangements order allowance to Ms B. Different parts of its policy are also contradictory about the extent of those discretionary powers. The Council has agreed to re-assess Ms B’s granddaughter’s needs and to make a new decision about Ms B’s allowance. It has also agreed to review its policy.

The complaint

1. The complainant, whom I refer to as Ms B, complains that the Council has refused to pay her a child arrangements order allowance for her granddaughter, who lives with her. I refer to her granddaughter as C.

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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)
4. 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

5. I spoke to Ms B about her complaint, and considered information from Ms B and the Council.
6. I have written to Ms B and the Council with my draft decision and considered their comments.

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What I found

What should have happened?

The Children Act 1989

7. Paragraph 15 of Schedule 1 to the Act gives councils the power to contribute towards the costs of accommodation and maintenance of a child who is living with someone as a result of a child arrangements order.
8. This paragraph is incorporated into the Act by section 15(1), under which any child arrangements order allowance would be paid.
9. Section 17 places the duty on councils to provide services (including cash) to support children who are in need.

The Council’s child arrangements order policy

10. This policy says the Council has the discretion to provide child arrangements order allowances; but paragraphs 3.1 and 3.2 say this discretion is limited to when the child was previously looked-after, or when the order prevented the child becoming looked-after. They say allowances will only be paid in those scenarios.
11. However, paragraph 3.3 of the policy then says the Council can provide an allowance in other circumstances. It says it may assess the child’s needs to decide whether they are ‘in need’ (under section 17 of the Children Act).

What happened?

12. In 2016 Ms B first asked the Council for an allowance to support her to look after C. The Council refused, saying it had not agreed this at the time of the order. It advised her to consider applying for a special guardianship order.
13. Ms B asked for an allowance again in July 2017. The Council decided to complete an assessment of C’s needs under section 17 of the Children Act.
14. In September 2017 the Council completed a financial assessment, using its model for calculating special guardianship allowances. It decided that – under this model – Ms B would be entitled to a weekly allowance of £120.70.
15. The Council completed its needs assessment shortly afterwards. It decided to suspend its decision on whether C was in need until after it had completed a ‘Band B’ report.
16. The Council then completed its Band B report (which is a report into a request for a child arrangements order allowance). The author decided Ms B’s financial circumstances justified the weekly allowance of £120.70, and recommended that the Council make the payments and consider backdating them.
17. There are no documents which show the Council’s consideration of the Band B report, or if it decided C was in need. It next wrote to Ms B in January 2018, and said she was ineligible for support, based on the criteria set out in paragraphs 3.1 and 3.2 of its policy. It did not refer to the Band B report or the needs assessment.
18. Ms B complained about the Council’s refusal, but it did not change its decision. It repeatedly referred to the criteria in its policy, and said Ms B did not qualify for support because she did not meet those criteria.
19. Although the Council’s final complaint response (in October 2018) mentioned that it actually has a wider discretion to make payments, it did not explain why it had not chosen to exercise that discretion in Ms B’s case, and did not set out any consideration of her circumstances beyond the limited criteria in its policy.

My findings

20. The Children Act gives councils the power to provide financial support to someone who is looking after a child as a result of a child arrangements order.
21. The person looking after a child in these circumstances has no statutory right to an assessment. However, councils have the power to pay an allowance if this is ensures the child’s needs are met.
22. Payment of such allowances is at the Council’s discretion, but I would expect it to fully consider the use of its powers when responding to a request for financial support, and I would expect its policy not to limit the discretion it has available.

The Council’s needs assessment

23. The Council assessed C’s needs, and said it would not decide whether she was ‘in need’ (under section 17 of the Children Act) until it had completed a Band B report.
24. The Band B report recommended that Ms B receive an allowance. However, there is no evidence to show how this affected the Council’s decision-making. I have seen nothing to demonstrate whether, for example, following the assessment and report, it actually considered C to be in need.
25. I would have expected the Council – following the needs assessment, financial assessment and Band B report – to decide whether Ms B’s financial circumstances meant C was in need, and – if so – whether payment of an allowance was justified.
26. I would also have expected the Council to explain its decision, particularly if that decision contradicted a significant part of the evidence (such as the financial assessment and Band B report).
27. The Council did neither of these things, which was fault. It should re-assess C’s needs and ensure it considers the Band B report or requests a new one.

The Council’s policy

28. Paragraphs 3.1 and 3.2 of the Council’s policy say discretionary payments will only be made in two specific circumstances (when a child was previously looked-after, or would have been if the order had not been made). These paragraphs – in isolation – do not allow the Council to fairly exercise its discretion to make payments under section 15 of the Children Act.
29. However, paragraph 3.3 then says the Council’s powers are not, in fact, limited to the circumstances set out in the preceding two paragraphs.
30. It is paragraph 3.3 which leads me to conclude that the policy is not, in itself, wrong. However, it appears that paragraphs 3.1 and 3.2 had a significant impact on the Council’s decision-making in Ms B’s case.
31. The letters the Council sent Ms B refer to the policy and say that, because C did not meet the criteria in paragraphs 3.1 and 3.2, it could not provide an allowance.
32. This is incorrect, and does not reflect the fact that councils have much broader discretion to make payments than those paragraphs suggest. The Council’s power to consider a child’s needs, for example (as set out in paragraph 3.3) does not appear to have been clear enough to officers dealing with Ms B’s request.
33. This was fault by the Council. It should review its policy and ensure that the updated document clearly sets out its discretionary powers.

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Agreed actions

34. The Council has agreed to re-assess C’s needs and ensure that it either considers the financial assessment and Band B report completed in 2017, or completes new ones as part of the needs assessment.
35. The Council has agreed to write to Ms B, following the needs assessment, with a new decision on her allowance, and an explanation for that decision.
36. These actions should be completed within two months of the date of this decision statement.
37. The Council has also agreed to review its child arrangements order allowance policy to ensure that it clearly sets out the Council’s discretionary powers. This review should be completed within six months of the date of this decision statement.

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Final decision

38. The Council was at fault for failing to properly consider its discretionary powers in deciding not to provide a child arrangements order allowance to Ms B. Different parts of its policy are also contradictory about the extent of those discretionary powers. The agreed actions remedy Ms B’s injustice.

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Investigator's decision on behalf of the Ombudsman