Decision : Upheld
Decision date : 06 Feb 2020
The Ombudsman's final decision:
Summary: The Council is at fault as it failed to provide clear, written information to Miss X about what support it could offer with her housing and what action she needed to take following the granting of a special guardianship order for Miss Y. As a result the process of becoming a special guardian for Miss Y was more stressful than necessary and caused Miss X to take unpaid leave. The Council has agreed to remedy the injustice to Miss X by sending an apology, making a payment of £500 to acknowledge the distress to Miss X and reimbursing her lost wages. The Council will also review the advice and information it provides to special guardians.
- Miss X complains the Council:
- Said it would allocate housing to her and her sister when a special guardianship order (SGO) was granted. The Council then told Miss X at the final hearing for the SGO that it had not agreed to allocate housing to her and her sister.
- Said Miss X that she would be housed within a week of the SGO order being made and did not clearly explain if and when she needed to take unpaid leave to manage her sister’s transition into her care. As a result Miss X was unable to work from 30 October to 22 December 2017.
The Ombudsman’s role and powers
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
- 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 our information sharing agreement we will share this decision with the Office for Standards in Education, Children’s Service and Skills (Ofsted).
How I considered this complaint
- I have:
- Considered the complaint and the information provided by Miss X;
- Discussed the issues with Miss X;
- Considered the responses to Miss X’s complaint under the Children’s Services statutory complaints procedure;
- Made enquiries of the Council and considered the information provided
- Invited Miss X and the Council to comment on the draft decision.
What I found
- Special Guardianship Orders (SGO) are a legal order which gives the applicant some, but not all, parental responsibility for a child until they are 18 years old. Councils play a central role in the SGO process. The Council should assess the applicant and prepare a report for the court about their suitability to be a special guardian. If a court awards the SGO then the applicant becomes responsible for the day to day decisions about the child.
- The Government’s statutory guidance on the Special Guardianship Regulations 2005 (amended 2016) provides local authorities are required to make available the provision of special guardianship support services. These include advice, information and other services prescribed in the regulations.
- Miss X applied for a special guardianship order for her younger half-sister, Miss Y, who was in the care of the local authority. At the time Miss X was in her early 20s and was living with her mother and step-father.
- Officer B visited Miss X to carry out a viability assessment. The assessment considered Miss X’s current housing and stated she would need to obtain suitable housing. In the section titled ‘what happens next’ the assessment stated Miss X was to be supported with gaining suitable and appropriate accommodation. There is no evidence to show this assessment was shared with Miss X.
- The Council referred Miss X for a full assessment of her suitability to be a special guardian for Miss Y. The assessment was carried out by Mr A, an independent social worker.
- On 23 August 2017, Mr A sent an email to Miss X. He said he had spoken to officer B regarding arrangements for accommodation. Officer B confirmed that Miss X would be moved to her own place if her application was successful. Mr A’s record of a meeting with Miss X on 2 September 2017 notes Miss X said she and Miss Y could not be placed in certain areas.
- In September 2017 officer B completed the special guardianship support plan setting out the support the council would offer Miss X if she became Miss Y’s special guardian. The support plan stated the plan was for Miss X to acquire a property. The Council would pay one month’s rent and one month’s deposit towards her accommodation.
- Mr A completed the assessment in September 2017. In his assessment he stated the plan was for the local authority to secure a two bedroomed property for Miss X and Miss Y. Mr A also referred to Miss X taking three months unpaid leave to settle Miss Y.
- The Council sent a copy of the assessment and support plan to Miss X in early October 2017. It also paid for Miss X to obtain one session of legal advice with a solicitor. Miss X’s solicitor contacted the Council with some questions about the assessment and support plan. These questions included when the accommodation would be available. The Council advised that it would provide financial assistance for Miss X to secure a property.
- The solicitor also asked whether the Council had taken account of the fact Miss X was intending to take three months unpaid leave from work to settle Miss Y and whether the Council had taken account of this in the financial assessment. The Council advised a settling in grant had been approved but would seek confirmation of this.
- The court was due to consider Miss X’s application for SGO in mid October 2017. The hearing was adjourned. An email from officer B to officer C, a manager, said the judge and parties were not happy with the support plan as it did not factor in the high cost of rent in Miss X’s locality.
- Miss X had a meeting with the Council on 25 October 2017. The Council has not provided a record of the meeting but I understand officer B, officer D, a manager, and officer E, Miss X’s new social worker, were present. As I understand it, officer D advised Miss X at this meeting that the Council would not be providing accommodation and she would have to find a suitable property herself. Miss X has also said she told officer D she was intending to take three month unpaid leave as soon as the SGO was granted to settle Miss Y. She has said officer D did not dissuade her.
- The court granted the SGO at the end of October 2017. Miss X found suitable accommodation in December 2017 for her and Miss Y to move into. Miss Y remained in her foster placement until Miss X was able to find suitable accommodation. Miss X had taken unpaid leave from end of October until December 2017. Miss X has said she took unpaid leave as officer B told her she would be housed within a week of the SGO being granted and Mr A advised her she needed to take eight to 10 weeks leave. Miss X could not rearrange her leave when she found out the Council would not be offering accommodation as her employer had given her shifts to another employee.
- Miss X made a number of complaints to the Council including that the Council had promised to house Miss X and Miss Y when the SGO was granted, she had to take unpaid leave and the Council delayed in making payments so she lost accommodation. The Council upheld Miss X’s complaint about delayed payments. It said it had made a payment of £480 to cover agency fees and a payment of £750. The Council wrongly referred Miss X to the Ombudsman if she was unhappy with its response. The Council should have considered Miss X’s complaint through stages two and three of the Children’s services statutory complaints procedure. Following a complaint to the Ombudsman, the Council referred Miss X’s complaint to stage two of the complaints procedure which is an independent investigation.
- Miss X made a number of complaints at stage two. The complaints relevant to my investigation are that the Council would allocate suitable housing to Miss X and Miss Y, officer D told her she would be housed within a week of the SGO being granted and she did not clearly explain if and when Miss X needed to take unpaid leave.
- The stage two investigator interviewed a number of officers including officer D. The record of the interview with officer D shows she considered Mr A and officer B had discussed housing with Miss X and officer D had discussed this with her at the meeting on 25 October 2017 and at the final court hearing. Miss X’s solicitor would also have told her the Council would not provide housing for her.
- The interview notes also show officer D said Mr A recommended Miss X take some time off work to settle Miss Y. Officer D said she anticipated Miss X may need to take a few days off work when she moved but no more than that. Officer D said all discussions with Miss X were to discourage her from taking an extended period of leave. There is no record of the discussions with Miss X.
- The stage two investigation did not uphold Miss X’s complaint that the Council told her it would provide accommodation and that she was told to take leave immediately after the SGO was confirmed. The investigation upheld Miss X’s complaint that no one advised her not to take unpaid leave during the transition of Miss Y into her care at the meeting in October 2017. The investigation upheld some of Miss X’s other complaints.
- Miss X escalated her complaint to stage three of the complaints procedure. This stage involves the complaint being considered by an independent panel. The panel could not make a conclusive finding on Miss X’s complaint that the Council told her it would find accommodation for her. It upheld Miss X’s complaints that the Council did not advise her not to take unpaid leave immediately after the granting of the SGO, she was told she would be housed within a week and that she was unable to work due to information provided by the social workers. The Council considered the report of the panel and disagreed with its conclusions. But it agreed to issue a further apology and a payment of £250 to acknowledge the time and trouble Miss X had been put to.
- The Council did not issue the apology and payment. In response to my enquiries, it has sent a letter of apology to Miss X. It is not clear if it has made the payment.
- I cannot investigate if the Council should have provided accommodation to Miss X. This is because the support plan setting out what support the Council would provide, including towards Miss X’s housing, was considered in court as part of Miss X’s SGO application. The law provides we cannot consider matters which have been considered in court. So, I have focussed my investigation on the information provided by the Council when she applied to be Miss Y’s special guardian.
- Councils are required to provide advice and information for special guardians, including potential guardians. This advice and information should be clear, unequivocal and should also be in writing to allow potential special guardians to reflect and make informed decisions on becoming a special guardian. The need for clear and written advice was particularly important in Miss X’s case due to her circumstances. Miss X had little experience of parenting and would need to make significant changes to her life, including leaving home, in order to become Miss Y’s special guardian.
- There is no evidence to show the Council provided sufficient advice and information to Miss X at any stage on what support it could offer, including with her housing. Officer D, in her interview for the stage two investigation, said officer B and Mr A discussed housing with Miss X. But there is no record of those discussions. There is no record to show the Council ensured Miss X understood what support, including with housing, might be offered until it issued the support plan in early October 2017. Miss X would have to move to her own accommodation so the Council should have set out what support it could offer in writing. This should have been provided at the beginning of the process to ensure Miss X could make an informed decision and to allow her to plan what action she needed to take.
- Furthermore, Mr A email of 23 August 2017 and his assessment suggest he did not fully understand what support the Council was offering. His email of 23 August 2017 said Miss X would be moved to accommodation. The assessment said accommodation would be secured which could implied the Council would find the accommodation. Mr A’s record of his meeting with Miss X on 2 September 2017 also suggest Miss X expected the Council to place her as she said she could not be moved to certain areas. There is no evidence to show the Council corrected Mr A’s or Miss X’s understanding. This misunderstanding could also have been avoided if the Council had set out clearly and in writing what support it could offer Miss X with housing.
- The Council sent a copy of the support plan to Miss X in early October 2017 and this set out the support it would provide with her housing. So, on balance, Miss X would have been aware in early October 2017 that the Council would not be providing accommodation for her.
- There is no evidence to show the Council gave any advice on what action Miss X needed to take when the SGO was granted, including whether she needed to take leave to settle Miss Y and how much leave she may require. Mr A’s assessment shows the matter was discussed although there is no record of his advice. In her interview for the stage two investigation officer D said she discouraged Miss X from taking an extended period of leave at the meeting in October 2017. But there is no record of this conversation. So, there is no evidence to show Mr A or officer D told Miss X she did not need to take unpaid leave. Furthermore, the Council should have given this advice much earlier in the process to allow Miss X to plan and make an informed decision about whether she needed to take an extended period of leave. Miss X was committed to taking unpaid leave by the time she had her meeting with officer D in October 2017.
- The Council’s record keeping was poor in this case. There is no record of officers’ contact with Miss X, including what information and advice to her. This is fault.
- The Council is at fault at it did not provide the apology or payment of £250 to Miss X as it had undertaken to do following the stage three review panel. The Council has now sent the apology. If the Council has not already made the payment, it should do so now.
Injustice to Miss X
- Miss X was substantially changing her life by becoming Miss Y’s special guardian as she had to move out of her home and take on the responsibilities that come with such a role, and at a young age. This process was made significantly harder and more stressful than it should have been by the Council’s failure to provide clear, timely, written advice about what support it could provide with Miss X’s housing and what action she should take when the SGO was granted. Had the Council provided clear, written and timely advice Miss X would have understood at the start of the process that she had to find her own accommodation and been able to plan for this. The Council has agreed to remedy the distress caused to Miss X.
- The Council’s failure to provide sufficient and timely advice also meant Miss X could not change the dates of her unpaid leave when she found out the Council would not be providing housing. Miss X only found out in early October 2017, when she received the support plan, that the Council would not be providing housing for her. This was only three weeks before the final hearing when Miss X expected to start her leave. Given the short timescale it is likely Miss X’s shifts would have been given to another employee and it was too late to rearrange her leave by the time she received the support plan. So, I consider the Council’s failure to provide sufficient and timely information and advice to Miss X caused her to take unpaid leave.
- Ms X is seeking reimbursement of £2400 for her lost wages. She has provided evidence of her unpaid leave and salary which satisfies me that the Council should make a payment of £2400 to her. The Council has agreed to this remedy.
- The Council will:
- Send a written apology and make a payment of £500 to Miss X for causing the process of becoming Miss Y’s special guardian to be more stressful than necessary as a result of the failure to provide sufficient, clear, timely and written advice on what support the Council could offer.
- Reimburse Miss X’s lost wages of £2400 as the Council’s failure to give sufficient, clear, timely and written advice to Miss X caused her to take unpaid leave.
- If it has not already done so, make the payment of £250 to Miss X as it agreed to do following the stage three adjudication.
- Review the advice and information it provides to potential special guardians to ensure they have sufficient written information about becoming a special guardian, the support the Council could provide and the action they need to take following the granting of the SGO to allow them to make informed decisions. The Council should provide evidence to the Ombudsman of the action it has taken to improve its performance in this area.
- Review its record keeping to ensure officers keep clear and transparent records of their contact with potential and actual special guardians including advice and information given. The Council should inform the Ombudsman of the action it has taken to improve its performance in this area.
- The Council is at fault as it failed to provide sufficient, clear, timely and written information to Miss X about what support it could offer with her housing and what action she needed to take following the granting of a special guardianship order. As a result the process of becoming a special guardian was made harder and more stressful for Miss X and caused her to take unpaid leave. The Council has agreed to remedy the injustice to Miss X as recommended so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman