Decision : Upheld
Decision date : 23 Mar 2020
The Ombudsman's final decision:
Summary: The Council was at fault for backdating Mrs X’s special guardianship allowance to the date it completed a delayed financial assessment, rather than the date she asked for support – five months before the assessment. It was also at fault for a delay in applying for therapeutic funding for Mrs X’s niece. The Council has agreed to apologise to Mrs X’s niece for the delay, and to make a payment of £200 to recognise her injustice. It has also agreed to backdate
Mrs X’s special guardianship allowance to the date she first asked for support.
- The complainant, whom I refer to as Mrs X, has been a special guardian for her niece (whom I refer to as Y) since 2009. She moved to the Council’s area in 2014.
- Mrs X was made redundant in March 2018, and in June 2018 she asked the Council for financial support. She complains that the Council took months to agree an allowance, because it refused to accept the evidence she provided of her financial circumstances. She says the Council then refused to backdate the allowance to the date she first asked for support.
- Mrs X also complains that the Council failed to refer Y to the Adoption Support Fund (ASF) – which provides funding for therapeutic support for children subject to special guardianship orders – even though she provided the evidence the Council asked for. She says this meant Y did not have access to the support she needed after being the victim of an assault.
What I have investigated
- I have investigated the Council’s decision to only backdate Mrs X’s special guardianship allowance to November 2018, not June 2018.
- I have also investigated Mrs X’s complaint about the Council’s failure to apply to the ASF for funding for Y.
- The final paragraph of this decision statement sets out why I did not investigate other matters.
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 provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), 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)
- 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.
How I considered this complaint
- I considered information from Mrs X and the Council. I wrote to Mrs X and the Council with my draft decision and gave them the opportunity to comment.
What I found
What should have happened?
Special guardianship statutory guidance
- This guidance tells councils how to meet their duties under the Special Guardianship Regulations (2005).
- Under Regulation 5, when a child was looked-after before a special guardianship order (SGO) was made, the council which last looked after the child is responsible for assessing and providing services to the child for three years after the date of the order. When the order was made more than three years previously, the council where the child lives is responsible (if this is a different council).
- Under Regulation 11, a council must assess a child or special guardian for support services if the child was looked-after immediately before the SGO was made.
The Council’s special guardianship policy
- The Council’s policy says that, if it receives a request for financial assistance from a special guardian of a child who was looked-after immediately before the SGO was made, then it will carry out an assessment, as required by Regulation 11.
The Adoption Support Fund
- This government programme provides funds to councils to pay for essential therapeutic services for eligible adoptive and SGO families.
- To be eligible for funding, councils must apply to the ASF within three months of assessing a family’s support needs.
- Mrs X first requested financial support from the Council in June 2018. She says the Council told her at the time that it would carry out an assessment of her finances. The Council says no record exists of this conversation.
- The Council says Mrs X was not eligible for financial support in June 2018 because she had received a significant redundancy payment shortly beforehand.
- However, when the Council wrote to Mrs X with its decision at the end of August 2018, it said it was refusing financial support because Y had not been in its care before the SGO was made. It said its policy supported its decision. It did not refer to Mrs X’s redundancy payment.
- In September Mrs X told the Council that Y had, in fact, been looked-after (but by a different council). She referred to the statutory guidance and said the Council was responsible for assessing and providing support to Y, even though she had previously been looked after by a different council, because the SGO had been made more than three years previously.
- In the same letter Mrs X told the Council that Y had recently made an abuse disclosure and needed therapeutic support. She asked the Council to apply to the ASF for funding.
- The Council responded in October and agreed to conduct a needs assessment of Y. It asked Mrs X to provide a copy of the SGO. Mrs X provided it.
- The Council completed its needs assessment in early November. The assessor concluded that the Council should carry out a financial assessment to see if the family needed financial support.
- The Council completed its financial assessment at the end of November. It decided the family should receive an allowance of £182.50 per week.
- In January 2019, after receiving further correspondence from Mrs X, the Council told her that ASF funding is only available for former looked-after children. It said it had been unable to get evidence that Y was looked-after from the council which looked after her. It asked Mrs X if she could provide this evidence. Mrs X sent a copy of the SGO again.
- In March the Council decided it had enough evidence of Mrs X’s financial circumstances, and agreed to pay her allowance and backdate it to the date of its financial assessment, rather than the date of her initial request.
- In July Mrs X contacted the Council again and said no application had ever been made to the ASF. She said Y’s case had now been to court and the perpetrator of the assault had received a custodial sentence. She said that, although Y had received some counselling from a local service, she still needed more therapeutic intervention. She asked the Council to assess Y and to apply to the ASF.
- Mrs X says that, after she contacted the Council in July, it assessed Y and applied to the ASF for funding. However, she says this took around a year from when she first asked in September 2018. She says this delay had a significant impact on Y’s mental health.
- If the Council receives a request for support from a special guardian of a child who was looked-after immediately before the SGO was made, it must assess them for support services.
- The Council did not initially know Y had been looked-after – which explains its initial decision. When Mrs X provided details confirming that Y had been looked-after, the Council agreed to assess her and, eventually, to provide an allowance.
- This means that, in the end, the Council complied with its duties. However, what is less clear is why it only backdated Mrs X’s allowance to November 2018 – five months after her request.
- The reason the Council gave for initially refusing support – that Y had not previously been looked-after – was wrong, and this significantly contributed to the five-month delay in assessing Mrs X’s finances. This was not Mrs X’s fault; however, in refusing to backdate her allowance to before this period of delay, the Council has effectively punished her for it.
- Although the Council now says Mrs X was not eligible for financial support in June 2018 because she had received a redundancy payment shortly beforehand, there is no evidence of this in the Council’s decision-making at the time. It did not give this as a reason when explaining its refusal to Mrs X. There is no evidence to explain why her redundancy payment made her ineligible for an assessment, particularly as she had a right to one under the Regulations.
- Because of this, I do not consider the Council to have provided a good reason why Mrs X should not have received an allowance in June 2018. The first full assessment of her finances was in November, and there is no convincing evidence to show that, had the Council conducted this assessment without a five-month delay, the outcome would have been any different.
- As a result, I have found that – as the Council’s decision was that Mrs X needed financial support – it was at fault for failing to backdate that support to the date she first requested it, rather than the date it eventually assessed her. It should take action to remedy her injustice.
- Mrs X also complains that the Council failed to apply for funding from the ASF after she asked for this in September 2018.
- This funding is not paid directly to special guardians. Rather, it is paid to councils to support them to provide therapeutic services which they have assessed an SGO family as needing.
- Mrs X first began asking for the Council to apply to the ASF in September 2018. After four months, the Council had failed to get evidence that Y had been looked-after from the council which looked after her. It then asked Mrs X for evidence that Y had been looked-after, which she had already provided.
- The Council took no further action to seek funding from the ASF until Mrs X asked again in July 2019 – at which point it assessed Y and then applied to the Fund for support. This meant Y was waiting around a year after Mrs X’s first request.
- The Council was responsible for a large part of the delay in seeking funding for therapeutic support for Y, and it was at fault for this delay.
- I cannot decide the precise injustice which Y experienced from the lack of funding from the ASF during this period. This is because I cannot quantify the value or effectiveness of therapeutic support, and I cannot decide how much the delay reduced the positive impact of any support she may have received. I also note that she was receiving support from other agencies during this period, and I cannot say how important ASF-funded support may have been as part of the overall package.
- However, I consider it likely that Y experienced an injustice purely from the fact that the Council took too long to respond to Mrs X’s request. Given that she was a child in a vulnerable position, in the aftermath of what was likely to have been a traumatic time in her life, I am of the view that this period of uncertainty would have caused her some distress.
- The Council should apologise to Y for the delay, and should make a symbolic payment to recognise her injustice.
- The Council has agreed to backdate Mrs X’s special guardianship allowance to the date she first asked for financial support.
- The Council has agreed to apologise to Y for the delay in applying for therapeutic funding.
- The Council has also agreed to make a further payment of £200 to Mrs X, on behalf of Y, to recognise the distress caused by this delay.
- The Council should complete these actions within six weeks of this decision.
- The Council was at fault for backdating Mrs X’s special guardianship allowance to the date it completed a delayed financial assessment, rather than the date she asked for support – five months before the assessment. It was also at fault for a delay in applying for therapeutic funding for Y.
Parts of the complaint that I did not investigate
- I did not investigate the steps the Council took to confirm Mrs X’s finances after completing its financial assessment in November 2018. Although it took a long time to finalise her allowance, it backdated the payments to the date of the assessment, so there was no injustice to Mrs X after that date which was significant enough to justify the Ombudsman’s involvement.
Investigator's decision on behalf of the Ombudsman