Summary: the Council failed to record the reasons it pays a premium for G’s care and failed to explain to Mr and Mrs P the possibility the payments will decrease, but any fault has not caused them an injustice. There is no fault in the Council reviewing the payments it makes each year.

The complaint

1. Mr and Mrs P complain about the Council’s decision to reduce their Special Guardianship Order allowance following the 2018 annual review. They believe the Council should continue to make the payments set out in their Special Guardianship Order support plan.

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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. 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)
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)

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How I considered this complaint

5. I have considered:
• information provided by Mr and Mrs P;
• information provided by the Council;
• the Special Guardianship Regulations 2005; and
• Special Guardianship Guidance, statutory guidance issued by the Department for Education in 2017.
6. I invited Mr and Mrs P and the Council to comment on my draft decision.

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What I found

7. Mr and Mrs P are special guardians for G. G is disabled. The Council pays Special Guardianship Order allowance to support G.

Special Guardianship Order Allowance

8. A Special Guardianship Order is a court order that gives a carer parental responsibility for a child.
9. Councils can provide financial support if they consider it is necessary to ensure a Special Guardian can look after a child. The Council must carry out an assessment to determine whether financial support is necessary. The assessment must take account of the child’s needs and the family’s financial resources, including benefits and outgoings. This is commonly called a ‘means test’. The Council must base any support it offers on the payments it makes to foster carers, although special guardians may receive less than foster carers because of the means test. (There is no means test for foster carers.) If the Council provides support, other than advice or guidance, it must produce a plan. The Council must review the plan at least once a year.

The Council’s decision to reduce Mr and Mrs P’s allowance

10. The Council carried out a review of Mr and Mr P’s special guardianship support plan in 2018. Mr and Mrs P say the Council proposed a substantial reduction in their allowance. They challenged the Council’s decision.
11. The Council changed its mind. It agreed to pay the allowance at the old rate because it said it did not know what care package G receives from the local council where Mr and Mrs P now live, or what Disability Living Allowance (DLA) she receives.
12. Mr and Mrs P complained. They do not believe the Council is entitled to reduce the financial support set out in their original Special Guardianship Order support plan. Unhappy with the Council’s response to their complaint, they complained to the Ombudsman.

Consideration

Is the Council allowed to review G’s special guardianship order allowance?

13. Regulations require the Council to review G’s special guardianship order support plan, including the financial support it pays Mr and Mrs P, at least once a year. (Special Guardianship Regulations 20015, Regulations 17 and 18) Mr and Mrs P’s circumstances, or G’s needs and the support she requires may change and the review must take this into account. (Special Guardianship Regulations 20015, Regulations 12 and 13)
14. G’s special guardianship order support plan says the Council will carry out regular reviews.
15. There was, therefore, no fault in the Council carrying out a review in 2018.

The 2018 review

16. However, in response to Mr and Mrs P’s challenge to the Council’s proposal to reduce the allowance, the Council said it was not aware of G’s support package or DLA entitlement. This calls the review into question. The Council needed this information to carry out the review. Completing the review without this information suggests the review, and the Council’s decision to reduce G’s support, was flawed.
17. Following Mr and Mrs P’s challenge, the Council changed its mind and continued to pay their special guardianship order allowance at the old rate. This means that any fault in the assessment has not caused an injustice.
18. When the Council next reviews G’s support, it must take account of Mr and Mrs P’s circumstances, G’s needs and the support she requires in order to comply with the Regulations.

The financial support the Council provides

19. G’s proposed special guardianship order support plan, produced by the Council before the Court made Mr and Mrs P special guardians, specifies the amount of financial support the Council will provide. While it is no doubt helpful for a prospective special guardian to know exactly how much support they will receive, this is not the full story.
20. In response to my enquiries, the Council confirmed the amount specified in Mr and Mrs P’s proposed special guardianship order support plan is the amount the Council would have paid if Mr and Mrs P were foster carers. The Council has not deducted the amount Mr and Mrs P can claim in benefits, which are not available to foster carers, and did not apply the means test. The plan does not make this clear and does not say these factors may be taken into account, and the payments reduced, in subsequent reviews.
21. An early draft of the plan included an additional payment over and above the Council’s usual fostering payment. This was not included in the final plan.
22. The Council said it had no records of any discussions which took place when the plan was produced and is unable to explain the amount of the payments specified in G’s support plan.
23. This is fault: the Council cannot explain why it appears to be paying a premium for G’s support; it did not make it clear to Mr and Mrs P it was paying a premium; and it did not give Mr and Mrs P adequate information to understand what would happen when it stopped paying that premium. However, I do not find that any fault by the Council has caused Mr and Mrs P an injustice. When challenged, the Council has continued to pay support at the higher rate.
24. Mr and Mrs P would like the Council to agree to pay at the higher rate until G is 18. To comply with Regulations, the Council must review G’s needs and the support she requires, as well as Mr and Mrs P’s circumstances, each year as long as it continues to provide financial support. The Council must invite Mr and Mrs P to comment and consider their comments before making any changes. I cannot, therefore, recommend the Council continues to pay the allowance at the same rate.
25. Should the Council propose a reduction in their support in the future, Mr and Mrs P can challenge the Council’s decision and, if they remain unhappy and think the Council has not complied with the Regulations, they may complain to the Ombudsman again.

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Final decision

26. I have ended my investigation. The Council failed to record the reasons it pays a premium for G’s care and its failed to explain to Mr and Mrs P the possibility the payments will decrease, but any fault has not caused them an injustice. There is no fault in the Council reviewing the payments it makes each year.

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Investigator's decision on behalf of the Ombudsman