Cheshire East Council (19 003 022)

Category : Children's care services > Friends and family carers

Decision : Upheld

Decision date : 05 Dec 2019

The Ombudsman's final decision:

Summary: there is no fault in the Council’s consideration of Ms F’s requests for financial assistance related to her intended application for a Special Guardianship Order but it failed to consider her complaint properly under the relevant complaints procedure and will apologise for this.

The complaint

  1. The complainant, whom I shall refer to as Ms F says that the Council is at fault in relation to the services it provided to her after it was notified of her intention to apply for a Special Guardianship Order in relation to her grandson, X. Specifically, she says it failed to:
  1. properly and fully assess and consider her need for financial assistance to apply for the Order which she needs to ensure arrangements for her grandson are sufficiently secure;
  2. properly consider or assess a need for ongoing financial assistance following any Order being made; and
  3. properly consider her complaint about this under all the stages of its corporate complaints procedure or consider whether it should be considered under the statutory children’s complaints procedure.

Back to top

The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I discussed the complaint with Ms F and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
  2. I gave the Council and Ms F the opportunity to comment on my draft decision. I considered their responses before reaching a final decision on the complaint.
  3. 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.

Back to top

What I found

What should have happened

  1. The Adoption and Children Act 2002 introduced special guardianship by inserting new sections into the Children Act 1989. A special guardianship order (SGO) is an order issued by a court which names an individual or individuals who become a child’s named special guardian(s). Anyone who decides to apply for a special guardianship order must give their local three months notice of their intention to do this. If the court issues a special guardianship order the special guardian will have parental responsibility for the child and will have responsibility for all day to day decisions related to the child. Unlike an adoption order the child’s parent(s) remain their legal parent(s) though have limited parental responsibility.
  2. The Special Guardianship Regulations differentiate between a child who has been “looked after” by the council and those who have not. A looked after child is one who has been provided with care by the council, usually by being placed with foster carers or in a residential placement for example. Where a child has been looked after before an application for an SGO is submitted the Council must complete an assessment. Where this is not the case the council has discretion as to whether to complete such an assessment.
  3. Councils are required to make arrangements for the provision of special guardianship support services. These include counselling, advice, information and such other services including financial support.
  4. The Special Guardianship Regulations state that financial issues should not be the sole reason for a special guardianship arrangement failing to survive. The central principle is that financial support should be provided to help secure a special guardianship arrangement where there is a financial obstacle that may prevent this. Regulation 6 says that “…financial support is payable to facilitate arrangements for a person to become the child's special guardian, where this is considered to be beneficial to the child's welfare, and to support the continuation of these arrangements after the order has been made”.
  5. Regulation 13 provides for councils to conduct a financial assessment for providing financial support to special guardians. Councils are expected to ensure that the special guardian or prospective special guardian is aware of, and taking advantage of, all benefits and tax credits available to them and will normally consider the special guardian or prospective special guardian's means and are required to consider:
    • the special guardian or prospective special guardian's financial resources (which should include significant income from any investments, but not their home) including any tax credit or benefit, which would be available to him if the child lived with him. This is consistent with the fact that financial support for special guardians is disregarded for the purpose of calculating income related benefits and tax credits;
    • the amount required by the special guardian or prospective special guardian in respect of his reasonable outgoings and commitments, e.g. housing and transport costs, and daily living expenses (but not outgoings in respect of the child);
    • the financial needs that relate to the child (e.g. because of special diet or need for replacement bedding) and the resources of the child (e.g. a trust fund)
  6. As special guardianship allowances are means tested the special guardian may end up receiving no allowance at all.
  7. A grandparent may ask a court to make a Child Arrangements Order in their favour. This order awards parental responsibility equal to that of the child’s parents and decides where a child lives and how a child will have contact with relatives for example.
  8. 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.
  9. Paragraph 2.4.1 of the statutory guidance on the statutory complaints procedure “Getting the Best from Complaints” confirms that financial support for Special Guardians may be considered under the statutory complaints process. The complaints process also allows for the Council to consider complaints from anyone it considers has sufficient interest in the child’s welfare. The statutory guidance also confirms at paragraph 3.1.5 that where a compliant is accepted at stage 1 of the statutory process the Council is obliged to ensure that it proceeds to stages 2 and 3 if the complainant asks for that.

What happened

  1. Ms F and her husband, Mr F, care for their nine year old grandson, X, who lives with them. They took responsibility for his care following the death of X’s mother who was also their daughter in August 2018. Before this, their daughter and X were already living with them following the breakdown of their daughter’s relationship with X’s father.
  2. In early September 2018 Ms F contacted Cheshire East Council’s children’s services team to ask for advice on applying for an SGO in respect of X. They state that their daughter said she wanted X to live with them after she died.
  3. Following their stated intention to apply to the court for an SGO Ms F and Mr F’s solicitor contacted the Council to request an assessment. The Council agreed to undertake an assessment (it had discretion as X had not been a looked after child) and appointed a social worker to complete this task. The social worker started an assessment of Ms and Mr F’s suitability to be X’s special guardians in January 2019. The social worker met Ms and Mr F, X and X’s father, Mr Y, and completed the assessment. Mr Y confirmed he was happy for Ms and Mr F to seek an SGO in relation to X. The assessment confirmed that he had been drinking alcohol heavily when X’s mother was unwell before she died and this contributed to her moving in with Ms and Mr F. He was also being treated for depression and anxiety. By the time of the assessment Mr Y said his alcohol intake had reduced. He was having frequent and regular contact with X. The report did not identify any concerns about Mr Y in relation to his relationship with X or his contact with him.
  4. The Council completed a financial assessment in January 2019. Having taken account of Ms F and Mr F’s income and outgoings this concluded the amount of means tested financial assistance in the form of a special guardianship allowance that they would qualify for was £20 a week. The Council’s case notes state the social worker told Ms F this in early February and also reiterated that the payment is discretionary. Ms F is noted to have been unhappy and stated she would contact her MP about this. Later it appears the Council decided the financial assessment meant that Ms F and Mr F did not qualify for any allowance.
  5. The social work assessment of their suitability to be X’s special guardians concluded that Ms F and Mr F were best placed to meet X’s needs but also that Mr Y did not pose a risk of “unmanageable” harm to X that would mean he could not care for X if needed. The social worker stated that a Child Arrangements Order may be more appropriate than an SGO as this would still mean Ms F and Mr F would gain parental responsibility for X but that Mr Y would also retain full parental responsibility. The social worker stated that the assessment had not highlighted concerns about Mr Y’s parenting which would mean the Council would consider stepping in to limit his parental responsibility.
  6. In March two social workers visited Ms F and Mr F following their complaints to the MP and local councillors about the financial support and also about their unhappiness with the social work assessment report. Their unhappiness about this seemed to stem largely from the social work assessment of the risk posed to X by Mr Y. At the end of this discussion Ms F and Mr F said they could not afford the legal fees associated with making an SGO application so would not be pursuing it.
  7. The Council states that the social worker considered Ms and Mr F should seek financial support from Mr Y as he has parental responsibility for X and remains responsible for financially supporting his son. The Council says the social worker offered to support Ms and Mr F to discuss this with Mr Y but they did not agree to this. Ms and Mr F’s councillor complained on their behalf in April. The social work team manager provided a response at stage 1 of the complaints procedure in early May. I note this letter did not say the matter was being considered under the statutory complaints procedure and did not advise of the right to proceed to stage 2 of the procedure if they remained dissatisfied. On 9 May Ms and Mr F asked for the matter to be escalated to stage 2 of the complaints’ procedure providing more information about Mr Y’s problematic drinking of alcohol and their disagreement that Mr Y could meet X’s care needs with support if necessary. In response the Council emailed Ms and Mr F stating “We are happy to offer you a meeting to discuss the current situation and explain the reasons for our decision in more detail. However, I have checked with…Director of Children's Social Care and she will not be changing her decision around X's status. Therefore, the meeting would not be to review our decision as…feels we have been very clear as set out in our letters of 27 February 2019 and 2 May 2019. Therefore we do not intend to progress your complaint to Stage 2”. In its response to my enquiries the Council said that its stage 1 consideration was undertaken under the children’s statutory complaints procedure.

Was the Council at fault and did this cause injustice?

  1. I am satisfied that the Council completed a financial assessment which enabled it to consider whether it should provide means tested financial assistance to Ms and Mr F to apply to the court for an SGO. The Council has discretion as to whether to make such a payment. As its financial assessment did not conclude that Ms and Mr F qualified to receive a discretionary grant, there is no fault in its decision to not award this. It is not my role to consider whether the Council’s decision was right or wrong but to consider whether it followed the proper processes when doing so. I am satisfied the Council properly completed the assessment.
  2. For the same reason I am satisfied the Council properly considered whether it should provide a discretionary grant for ongoing financial support following any order being made. Broadly speaking the Council, whilst agreeing it would support the suitability of Mr and Ms F to be awarded an SGO in respect of X, did not consider it was necessary as it considered X could live with his father, possibly with some support if needed. Its assessment did not identify concerns about Mr Y’s ability to parent X even though Ms and Mr F explained his previous misuse of alcohol. They also considered that as Mr Y worked full time and retained parental responsibility for X, he could contribute financially to X’s living expenses.
  3. I do not consider Ms and Mr F’s complaint was handled properly by the Council. It says it considered the matter at stage 1 of the children’s statutory process but the letter does not state this and did not advise them of their right to progress to stage 2 if they remained dissatisfied. Accepting the Council’s account that the matter was considered at stage 1 of that process, Ms F had a right to progress the matter to stages 2 and 3. The Council did not accord with her request to proceed to stage 2 so this failure amounts to fault by the Council. This refusal caused in justice insofar as it denied Ms F the right to have the matter properly considered under this procedure.

Back to top

Agreed action

  1. The Council will apologise for not considering Ms F’s complaint at stage 2 of the statutory children’s complaints procedure having accepted and considered the complaint at stage 1 of this procedure. As I have now considered the substantive complaint about the Special Guardianship Allowance so there is no benefit in the Council considering the matter under this procedure now. The Council must ensure it allows complainants to pursue complaints through the statutory process once it has begun under this procedure as the regulations require.
  2. The Council will issue this apology within one month of the final decision on this complaint.

Back to top

Final decision

  1. There is no fault in the Council’s consideration of Ms F’s requests for financial assistance related to an SGO but it failed to consider her complaint properly under the relevant complaints procedure.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings