Summary: the Council has not properly considered Mr G’s request for financial support to care for his grandchildren, and the reason it gave for not paying Special Guardianship Order Allowance is invalid. The Council has agreed to consider his request again.

The complaint

1. Mr G complains the Council has refused to pay Special Guardianship Order Allowance for the care of his grandchildren. He says a social worker said he would receive an allowance before the Court granted the Special Guardianship Order, but the Council later said this was a mistake.

Back to top

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. We may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
4. 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)

Back to top

How I considered this complaint

5. The Ombudsman does not decide whether the Council should provide financial support for Mr G to care for his grandchildren. This is the Council’s job. The Ombudsman’s role is to check the Council made its decision properly.
6. I have considered:
• information provided by Mr G;
• information provided by the Council;
• the Council’s Special Guardianship Policy and Guidance operational from 1 September 2015;
• the Special Guardianship Regulations 2005; and
• Special guardianship guidance. Statutory guidance for local authorities on the Special Guardianship Regulations 2005 (as amended) by the Special Guardianship (Amendment) Regulations 2016 issued by the Department for Education in 2017.
7. I invited Mr G and the Council to comment on my draft decision.

Back to top

What I found

8. Mr and Mrs G are Special Guardians for their grandchildren. The children have lived with them since June 2018.
9. When Mr and Mrs G applied for a Special Guardianship Order, the Court ordered the Council to carry out an assessment and submit a report. As part of the assessment, a social worker carried out a financial assessment and told Mr and Mrs G they would receive a weekly special guardianship order allowance of approximately £170 to care for the children.
10. The Council said the social worker was wrong and should not have carried out the financial assessment because the Council would only consider paying special guardianship allowance if the children had previously been in care. As Mr and Mrs G’s grandchildren had not been in care, the Council said they were not eligible for financial support.
11. Mr and Mr G complained. The Council apologised and agreed to pay £2,450 towards Mr and Mrs G’s legal costs and ‘setup costs’ as a gesture of goodwill.
12. Mr and Mrs G remained dissatisfied and complained to the Ombudsman.

Special Guardianship

13. A Special Guardianship Order is a court order that gives a carer parental responsibility for a child.
14. Councils can provide financial support if they consider it is necessary to ensure a Special Guardian can look after a child. Regular financial support is known as Special Guardianship Order Allowance. Before providing support, the Council must carry out an assessment. Regulations set out who is entitled to an assessment, the procedure for the assessment, and what a council must do if it decides not to carry out an assessment.
15. Chapter 2 of the Special Guardianship Regulations 2005 deals with the provision of financial support. The Regulations do not discriminate between looked after children or any other group. A council may pay Special Guardianship Order Allowance to anyone who holds a Special Guardianship Order if the council considers it necessary to ensure the Special Guardian can look after the child.
16. Chapter 3 of the Special Guardianship Regulations 2005 deals with assessment, including assessment for financial support. Regulation 11 lists two groups of people: those who must receive an assessment at their request, and those who may be offered an assessment. The first group includes special guardians of children who were previously looked after (in care), the second includes special guardians of all other children.
17. If the council decides not to carry out an assessment for special guardians in the second group, it must give them notice of its proposed decision in writing, including reasons for the decision. The person who requested the assessment must be allowed at least 28 days to make representations in relation to the decision.

Consideration

18. Mr G is in the second group. If the Council decides not to carry out an assessment, it must give him notice of its proposed decision in writing and invite him to comment first.
19. The Council has carried out a financial assessment.
20. Having undertaken a financial assessment and given Mr and Mrs G the impression they would receive financial support, the Council decided not to pay an allowance. The reason it gave – the fact the children were not looked after – is invalid. The Council can pay special guardianship order allowance for any child.
21. The Council says the decision not to pay Mr and Mrs G special guardianship order allowance is in line with its policy. This is incorrect. The policy the Council sent me does not say the Council will only pay an allowance if the children were in care. If it did, the policy would be unlawful.

Conclusion

22. The Council has not properly considered Mr and Mrs G’s request for financial support. The reason it gave for not providing financial support is invalid. The Council has not complied with its own policy or the law. This is fault.

Agreed action

23. The Ombudsman has published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
24. Mr G has suffered injustice as a result of fault by the Council: the Council has failed to properly consider his request for financial support, and he has had to complain in order to challenge the Council.
25. To remedy this injustice, I recommended the Council:
1. review its policies and procedures to ensure they comply with the law and Government guidance;
2. following the review, ensure staff are aware of the Council’s policies and procedures;
3. consider Mr G’s request for financial support in line with the Regulations;
4. apologise to Mr G for its failure to properly consider his request.
26. If the Council decides Mr G is eligible for financial support, it should pay the support from the date of the Special Guardianship Order;
27. I recommended the Council take these actions within six weeks of my final decision.
28. Other people may have suffered similar injustice as a result of the Council’s mistaken believe that only children in care are eligible for Special Guardianship Order Allowance. I recommended the Council contact all people for whom the Council has completed court reports for private Special Guardianship Applications in the last 2 years and invite them to request an assessment. The Council should then consider their request in line with the law and Government guidance. I recommend the Council provides the Ombudsman with evidence it has taken this action within three months of my final decision.
29. The Council accepted my recommendations

Back to top

Final decision

30. The Council accepted my recommendations, so I have ended my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman