Decision : Upheld
Decision date : 18 Mar 2020
The Ombudsman's final decision:
Summary: Ms B complained the Council stopped her special guardianship allowance and this caused financial hardship. The Ombudsman has found fault with the Council. The Council did not provide Ms B with budgeting support and it did not record its reason for stopping the allowance adequately. The Ombudsman has recommended actions the Council will take to remedy this injustice.
- Ms B complains the Council stopped her special guardianship allowance and this has caused financial hardship. Ms B would like the allowance reinstated.
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)
- 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:
- Ms B’s complaint and the information she provided;
- documents supplied by the Council;
- relevant legislation and guidelines;
- the Ombudsman’s focus report ‘firm foundations: complaints about council support and advice for special guardians’; and
- the Council’s policies and procedures.
What I found
Legislation and policy
- The Adoption and Children Act 2002 and the Special Guardianship Regulations 2005 set the legal framework for special guardianship under the Children Act 1989.
- Government guidance says special guardianship arrangements should not fail just because of financial problems. Councils should offer financial support to help secure a suitable arrangement where this is not possible because of a financial obstacle.
- Special guardianship regulations explain when councils can pay support to a special guardian or prospective special guardian. This includes situations where it is necessary for the guardian to look after the child, where the child has special needs with extra costs and where necessary to adapt or alter a home. These are decisions for the council to make, based on its understanding of the situation. (The Special Guardianship Regulations 2005 13(2-5))
- Regulations say councils must consider other benefits available to the guardian and child, the guardian’s financial resources, the amount of money they realistically need and the child’s financial needs and resources. This is called means-testing. (The Special Guardianship Regulations 2005 6(1,2))
- Councils must review the financial support they pay the special guardian annually, and when there is a relevant change in their or the child’s circumstances. If a council then proposes to reduce or end financial support it must allow the special guardian to comment. (The Special Guardianship Regulations 2005 17 (4) & 18(4-6))
- After deciding to provide support services, councils must explain this to the special guardian. They must explain how they calculated the support, how much and how often it will be paid, what conditions apply and how it will review support in future. (The Special Guardianship Regulations 2005 18(7))
- This chronology includes key events in this case and does not cover everything that happened.
- Ms B is the grandparent of C (16) and D (12). In 2010, C and D were placed in her care. C has some behavioural difficulties as a result of his life experiences.
- The Court granted Ms B an interim residence order in February 2011 and a special guardianship order (SGO) in January 2012. The SGO was supported by the Council. The Council’s court report said it had financially assessed Ms B and she was eligible for a payment for C and D for up to three years. The report said a financial review would take place every 12 months.
- The Council started to pay Ms B a special guardianship allowance in January 2012. In November 2014 the Council wrote to Ms B to tell her the special guardianship allowance would stop in three months.
- The Council stopped Ms B’s special guardianship allowance in January 2015, three years after the special guardianship order was granted. Ms B appealed this decision and the Council reinstated her allowance while the appeal was being considered. Ms B told the Council she believed she would receive the special guardianship allowance until C and D were 18. The Council reviewed her finances and in May 2015 the appeal panel agreed to continue paying the allowance for six months. The Council said these six months were for Ms B to pay off an outstanding car loan and adjust her outgoings so she could manage her finances without the special guardianship allowance from December 2015.
- At the end of this six-month period, Ms B appealed against the decision to stop her special guardianship allowance. Ms B said she needed the allowance to pay for extra-curricular activities for C and D. The Council carried out a financial review and advised Ms B it could not guarantee the panel would agree to continue to pay the special guardianship allowance. In February 2016, the appeal panel agreed to extend the special guardianship allowance for 12 months; the panel did not record its reason for making this decision.
- In 2017, when the Council gave Ms B three months’ notice the allowance would stop, Ms B appealed again. Ms B explained she could not work because she was caring for C and D and they needed money for clothing, transport, food, an annual holiday and extra-curricular activities. In May 2017, the appeal panel decided to award the allowance for another year and said information was to be given to Ms B around finances and budget planning.
- The Council wrote to Ms B in March 2018 to say the allowance would stop in three months. Ms B appealed saying she needed support to pay for C and D’s extra-curricular activities, clothing, food, transport, trips abroad and to pay off a car loan. Ms B’s social worker said Ms B believed it was agreed in court the special guardianship allowance would be paid until C and D reached 18 years but had been unable to provide evidence of this.
- The Council carried out a review and considered the children’s physical health and development, educational needs, social/emotional needs, therapeutic needs, contact arrangements and wishes and feelings. It also completed a financial assessment. The social worker felt the family had come to rely on the allowance and were financially unprepared for this to end. However, the social worker recognised the activities the allowance paid for benefited C and D, boosting their self-confidence and self-esteem. These assessments were given to panel with Ms B’s evidence.
- In August 2018, Ms B told the Council her circumstances had changed because her partner could not work, and they were struggling financially.
- In October 2018, the appeal panel decided to stop the special guardianship allowance. The panel said C was in receipt of disability living allowance (DLA) and Ms B was receiving carers allowance which were to meet his additional needs. The panel said all eligible benefits were in place and financial checks showed the family had a surplus monthly income.
- Ms B complained to the Council in December 2018. Ms B complained:
- the council had stopped her special guardianship allowance;
- there was a delay in the appeal process;
- payments stopped, but they should have continued while the appeal was ongoing; and
- there was poor communication from the Council.
- Ms B was granted an SGO in 2012 for C and D. The Council financially assessed Ms B and decided she was eligible for the full payment for C and D for up to three years. The report said a financial review would take place every 12 months; this did not happen in 2013 or 2014 which was fault.
- The Council were aware Ms B was reliant on the allowance. In May 2017, the appeal panel said it would continue to pay the special guardianship allowance for 12 months so the Council could provide Ms B with information about finances and budget planning. This was to ensure Ms B could manage financially when the allowance stopped. The Council did not carry out this piece of work which was fault.
- The appeal panel decided to stop C and D’s special guardianship allowance in October 2018. The reason the panel gave was D did not have any additional needs, C received DLA and Ms B was receiving carer’s allowance which would meet C’s extra needs.
- DLA is not a replacement for the special guardianship allowance. DLA is to meet extra costs associated with looking after a child who has a disability. Special guardianship allowance is for situations where financial support is necessary for a guardian to look after the child or where the child has special needs (not necessarily associated with a disability) with extra costs. A child being in receipt of DLA is not justification for a Council to stop a special guardianship allowance.
- The Council says it did not consider DLA as a substitute for the special guardianship allowance but accepts the reason for the panel’s decision to stop the allowance was not as detailed and clear as it could have been; this was fault.
- The panel in March 2019 was satisfied the children did not have any additional needs which would warrant ongoing financial support. Ms B said nothing had changed between October 2018 and March 2019. The panel upheld the decision made in October 2018 to stop the allowance. Therefore, although there was fault in administering the October 2018 panel, this did not cause Ms B injustice.
- Ms B has struggled with her finances and this has caused distress. This distress could have been avoided if the Council had supported her to budget and manage her money as recommended by the panel in May 2017.
- Within one month of the final decision, the Council will:
- Provide staff with guidance telling them to record the list of evidence the panel considered and a clear summary of its decision making in panel minutes.
- Pay Ms B £300 for avoidable distress.
- Work with Ms B to create a plan of work to help her budget and manage her finances; and
- Start the piece of work with Ms B and have dates in place for future sessions.
- I have completed my investigation and uphold Ms B’s complaint. Ms B has been caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman