Summary: Mrs D complains the Council has wrongly reduced the amount it pays her as a special guardian and failed to provide other assistance. The Council was not at fault in how it dealt with payments to Mrs D as a special guardian but it did not follow the statutory complaint process. Mrs D did not suffer any injustice because of this.

The complaint

1. The complainant, whom I shall refer to as Mrs D, complains the Council has wrongly reduced the amount it pays her as a special guardian for her two grandchildren because it isn’t paying her the carers element which foster parents receive and it has incorrectly means tested the amount she is paid. Mrs B also says she never received other help the Council told her she would get, to do the children’s bedrooms and for clothes.

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What I have investigated

2. I have investigated that part of Mrs G’s complaint about how the Council has assessed her payments as a special guardian. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I have spoken to Mrs D about her complaint and considered the information she has provided to the Ombudsman. I have also considered the Council’s response to her complaint and its response to my enquiries.
6. I have written to Mrs D and the Council with my draft decision and considered their comments.

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What I found

7. The Special Guardianship Regulations 2005, amended in 2016, and statutory guidance, updated in 2017, set out a local authority’s duties.
8. A special guardianship order (SGO) is a private law order which grants the applicant (who is not the parent of the child) parental responsibility for the child. It does not remove the parental responsibility from the birth parent, but limits it.

Financial support

9. The guidance says financial support is payable to support the continuation of the arrangement after an SGO is made. This Special Guardianship Allowance (SGA) may be payable, (among other reasons):
• Where it is necessary to ensure that the special guardian can look after the child.
• Where the local authority considers it appropriate to make a contribution to the expenditure for accommodating and maintaining the child, including buying furniture and domestic equipment, adapting the home, transport, clothes, toys and so on.
10. In determining the amount of SGA, the local authority should have regard to the amount of fostering allowance which would have been payable if the child were fostered. The local authority’s core allowance plus any enhancement that would be payable in respect of the particular child, will make up the maximum payment the local authority could consider paying the family.
11. The amount depends on the income and outgoings of the family. The local authority will carry out a means test to determine the amount applicable.
12. The guidance says SGA financial support cannot duplicate any other payment to the special guardian. Therefore, the local authority must take account of any other grant, benefit or allowance available to the special guardian when calculating the SGA. As foster carers cannot claim child benefit and child tax credit, councils usually deduct an amount for this.

The Council’s working practice

13. The Council’s working practice for special guardianship financial support sets out how it should calculate the level of SGA it provides.

Statutory children’s services complaints process

14. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless she considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
15. There are time limits within which the Council should complete its investigations.
• At stage 1 the investigation should take no longer than ten days, or 20 days if the complaint is complex.
• At stage 2 the investigation should take no longer than 25 days or 65 days where the complaint is more complex.
• The Council should respond to the findings within 15 days.

What happened

16. In September 2013, an interim care order was made about Mrs D’s grandchildren, A and B, who were placed in her care.
17. In November 2013, special guardian support plans were created for A and B.
18. In 2014, Mrs D was granted a Special Guardianship Order (SGO) for A.
19. In February 2014, a residence order and 12-month supervision order were made for B to live with Mrs D.
20. In 2018, the Council sent Mrs D a means test form to be able to review payments it was making to her. Mrs D completed and returned the form to the Council.
21. The Council recalculated the SGA it paid to Mrs D and told her that her payments would be reduced.

Mrs D’s complaint

22. Mrs D complained that the Council was incorrectly reducing her SGA and had applied the means test incorrectly. The Council said it would reinstate her payments at the previous rate until her complaint had been resolved.
23. The Council responded to Mrs D at stage one of the statutory complaint process. The Council did not uphold her complaint and said the revised payments were correct.
24. Mrs D asked the Council to escalate her complaint to stage two.
25. The Council appointed an investigating officer and an independent person to conduct a stage two investigation under the statutory complaint process. It also offered Mrs D a meeting to try to resolve her complaint.
26. The Council held the meeting with Mrs D to discuss her complaint.
27. The Council wrote to Mrs D and said the payments it was making were correct and the Council had no power to decide which benefits were taken into account as part of her financial means test. The Council declined to conduct a stage two investigation under the statutory complaint process.

Analysis

28. The special guardian support plans for A and B detail financial support to be paid. This was stated to be the weekly allowance minus child benefit for 2 years from date of the SGO.
29. The special guardian support plans also stated that financial means assessment should be completed two years after a SGO had been made.
30. The financial means assessment was requested by the Council in August 2018, more than two years after the SGOs were made.
31. The full special guardianship allowance paid by the Council is equal to the maintenance element of fostering payments that the Council pays. The Council’s fostering allowances are above the minimum national fostering rate.
32. The Council also makes weekly reward payments to foster carers. This rewards payment is made in respect of the foster carer and not the foster child.
33. The Council has considered the amount of fostering allowance which would have been payable if the child were fostered. The Council has acted in accordance with statutory guidance in determining the special guardianship allowance for A and B.
34. The Council has a clear policy about how it means tests SGA payments. The Council made the financial means assessment in accordance with its working practice for special guardianship financial support.
35. The Council paid Mrs D at the previous rate while it considered the complaint. The Council was not under any obligation to do this.
36. The Council was not at fault in how it dealt with payments to Mrs D as a special guardian.

Mrs D’s complaint

37. The Council agreed it had not responded to Mrs D’s initial complaint quickly enough and apologised to her for this.
38. The Council took steps to initiate a stage two investigation. It is clear from the minutes of the informal meeting that Mrs D did not consider her complaint had been resolved at that time.
39. The Council provided no justification for refusing to hold a stage two investigation other than it believed it was not at fault.
40. The Council was at fault in how it handled Mrs D’s complaint because it delayed responding to her initial complaint and did not follow the statutory children’s services complaints process fully.
41. However, there was no injustice to Mrs D because the Council was not at fault in how it dealt with payments to Mrs D as a special guardian, and it has already apologised to Mrs D for the delay in responding to her complaint.

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Final decision

42. I have found that the Council was not at fault in the way that it dealt with Mrs D’s special guardianship payments, but there was fault in how it handled Mrs D’s complaint because it delayed responding to Mrs D’s complaint and then did not follow the statutory children’s services complaints process. There was no injustice to Mrs D because there was no fault in the way the Council dealt with the special guardianship payments.
43. I have now completed my investigation.

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Parts of the complaint that I did not investigate

44. I have not investigated Mrs D’s complaint about other financial assistance she says the Council told her she would get because Mrs D says this happened in 2014/15 and it is too long ago.

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Investigator's decision on behalf of the Ombudsman