Southend-on-Sea City Council (19 003 363)

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

Decision : Upheld

Decision date : 05 Oct 2020

The Ombudsman's final decision:

Summary: The complainant alleges that the Council’s Special Guardianship allowance practice was not in accordance with statutory guidance and it also withdrew financial support for his legal assistance. The Ombudsman has found fault in the Council’s understanding of the statutory guidance, which has affected the allowance paid to the complainant, and to other family foster carers, during the first two years since they were granted a Special Guardianship Order. The Ombudsman has also found fault in the way the Council withdrew the financial support for legal assistance to the complainant. The Council has accepted the recommended actions to remedy this complaint.

The complaint

  1. The complainant and his wife, who I refer to as Mr and Mrs X, look after their two grandchildren (Child B and Child C), after they were taken into care by the Council. Initially, when the grandchildren were placed with them, the Council paid Mr and Mrs X a family foster carer allowance. However, after the making of the Special Guardianship Order (SGO), the Council paid them in accordance with its practice at that time, which was to reduce the allowance over a two year transitional period.
  2. Mr X ‘s specific complaints are that:
      1. the Council’s Special Guardianship (SG) allowance practice was not in accordance with the statutory guidance governing how councils should calculate the SG allowance to previous family foster carers. Mr X says this has meant that he and his wife have, and are, struggling financially to care for Child B and Child C; and
      2. Mr X also complains that the Council withdrew the financial support for his legal assistance the day before the final Court hearing, which was due to consider the making of the SGO. This gave him no time to consider alternative options or obtain further legal advice. Mr X also had to represent himself at Court which he felt ill equipped to do.

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What I have investigated

  1. Mr X has other complaints about the financial and other support provided by the Council, after the two year transitional period. Their SG allowance is now means tested and they do not receive an allowance. These are new complaints, which are not part of this investigation.

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The Ombudsman’s role and powers

  1. 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)
  2. Normally the Ombudsman will not investigate complaints unless they were made to him within 12 months of when the complainant realised something had gone wrong. However, the Ombudsman has some discretion on this time limit.
  3. Under section 26(D), the Ombudsman can investigate matters coming to his attention, during an investigation, if he considers that a member of the public, who has not complained, may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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

  1. Mr X says that he first complained to the Ombudsman in November 2017. But it appears that we did not receive the complaint. Mr X resent his complaint in July 2018. We have exercised discretion to investigate the complaint even though Mr X has not complained within 12 months of when he first realised that something had gone wrong.
  2. We have also investigated the complaint using our 26(D) powers.
  3. The Council has investigated Mr X’s complaint under the three stages of the statutory Children Act 1989 complaints procedure. I have seen the complaint documents and I made enquiries of the Council and obtained additional relevant written information.
  4. I have also spoken to Mr X and he has provided information from his solicitor, who was helping him during the legal proceedings. We have also received legal advice.
  5. I issued a draft decision statement to the Council and to Mr X. Prior to the issue of this draft decision statement, I indicated to the Council that our initial views had implications for other special guardians who had previously been family foster carers.
  6. I have taken into account the Council and Mr X’s comments on the draft decision statement when reaching my final decision.
  7. The Ombudsman’s final statement will be sent to the Office for Standards in Education, Children Services and Skills (Ofsted) in accordance with the arrangement the Ombudsman has to share findings with this organisation.

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What I found

Legal and administrative arrangements:

  1. Children are considered a ‘child in need’ if their development is likely to be impaired if services are not provided.
  2. Where councils consider that a child is suffering or is likely to suffer significant harm due to the care being provided to the child, they can seek to obtain an interim Care Order. This will allow councils to share parental responsibility with parents and remove children from unsatisfactory and unsafe living arrangements. The chid becomes known as a ‘looked after’ child and the council has specific duties to safeguard and promote the child’s welfare.
  3. Councils have a duty to consider placing children with family members, wherever possible. If they do, family members will receive the full fostering allowance, similar to that paid to councils’ own foster carers.

Special Guardianship Orders (SGOs)

  1. The Adoption and Children Act 2002 came into force in December 2005. It provided a new legal status, SGOs, for non-parents who wished to care for children in a long term, secure placement.
  2. A SGO, granted by a Court, gives the special guardian parental responsibility for a child who is not their own. It does not entirely remove the parental responsibility of the birth parent but limits it. Courts can make a Supervision Order, alongside a SGO, where it considers it is necessary to ensure appropriate support for the special guardian and child.

SG allowances

  1. The SGO Regulations and Guidance 2005 and 2016 sets out the possible support services, which can be provided, including counselling, advice, information and financial support. The then Department of Education and Skills (DfES) produced a suggested model means test for adoption and SGO financial support payments.
  2. As well as regular financial support, financial assistance can be given for legal costs and to meet the child’s therapeutic needs. Councils can also give assistance for the purpose of ensuring the continuance of the relationship between the child and the special guardian including training, mediation and respite.
  3. Guidance accompanying Regulation 3 says that councils can consider giving a person help in cash where it considers it appropriate. It gives as examples “giving a special guardian cash to pay a babysitter so they can have a break for an evening or money for petrol when a contact visit has been arranged”.
  4. Regulation 6 covers financial support. The Council can pay this in circumstances including where:
  • It is necessary to ensure the special guardian can look after the child;
  • Where the child “needs special care which requires a greater expenditure of resources than would otherwise be the case because of illness, disability, emotional or behavioural difficulties or the consequences of past abuse or neglect”.
  1. The Guidance says that, in determining the amount of ongoing financial support , a council should “have regard to” the amount of fostering allowance that would have been payable if the child were fostered. Any means test should use this maximum payment as a basis for calculation.
  2. Case law has further considered this matter. In 2010, the Court (R v Kirklees Council) found paying Special Guardianship allowance as a fixed percentage of fostering allowance without any justification did not comply with the Guidance and was unlawful. The Court said councils should pay Special Guardianship allowance at an equivalent rate to foster carers (with the deduction of Child Benefit if appropriate).
  3. A second case in 2012, (R v London Borough of Merton) found that councils should use the National Fostering Network’s minimum allowances as a starting point for calculation and “the decision to adopt a level of allowance for special guardians of two thirds of the Fostering Network's minimum allowances was unlawful”.
  4. Where special guardians were previously foster carers, councils can pay them the fostering amount for a two year transitional period to give them time to adjust. The Regulations say:

“The purpose of the two year transitional provision is to enable local authorities to maintain payments to foster carers who become special guardians, at the same rate as they received when they were fostering the child. This should give the family time to adjust to their new circumstances”.

  1. For example, this gives time for special guardians to apply for benefits in this period, which they would not have been entitled to as foster carers.
  2. From time to time we publish focus reports on key issues of local government practice, drawing on lessons from complaints. In November 2013 we published “Family Values: Council services to family and friends who care for others’ children”. We sent the report to all councils. We expected councils to circulate reports to appropriate departments. We updated the report in 2018.

The Council’s SGO practice

  1. In April 2014, the Council produced its guidance. This was updated in 2017 and in 2019.
  2. At the time of the events of this complaint, the Council had a practice, which paid special guardians, who were former family foster carers, the SG allowance at 75% of the core fostering allowance for the first year and then 50% during the second year. The Council has explained that it genuinely thought that this was in keeping with the legislation and guidance.

Key facts

  1. In early January 2017, Child B and Child C’s mother asked Mr and Mrs X to care for the children because she was unable to cope. Mr and Mrs X had previously provided informal help and support over many years. The mother then threatened to remove Child B and Child C from Mr and Mrs X. The Council, in order to protect the children, sought interim Care Orders from the Family Court to ensure that they remained with their grandparents.
  2. The Court granted the interim Care Orders and the Council paid Mr and Mrs X the family fostering allowance from this date. It was then for the Court to make the final decision about the children’s best interests. The Court appointed a Guardian to help it reach this decision.
  3. In late January 2017, the agreed care plan between Mr and Mrs X and the Council was for the grandchildren to remain with them permanently under a SGO.
  4. In April 2017, the Council’s SGO Panel agreed the care plan, also noting that the Council’s practice, for those previously paid as foster carers, was that the SG allowance would be equal to 75% of the full fostering allowance for a year, and then at 50% for the second year. After this, the complainants would have a financial assessment and would only receive a SG allowance subject to a means test and an assessment of the grandchildren’s needs.
  5. As part of its SG practice, the Council agreed to pay Mr and Mrs X’s legal expenses, so that they were represented at the care proceedings. Mr X says that, during these care proceedings, his solicitor raised concerns about the Council’s proposed support package once the SGO was made. Mr and Mrs X considered the proposed financial support was not sufficient.
  6. Mr X attended a training event, organised by the Council, when the Council says that Mr X was told of the Council’s practice on SG allowances. So, the Council considers Mr and Mrs X were fully aware of the Council’s practice of reducing the SG allowance over a two year period, and the complainants proceeded with the SGO application regardless.
  7. Mr X says that, by the time they learnt of the two year transitional payments, they had applied for the SGO and the legal proceedings were under way. They also did not want to disappoint their grandchildren and introduce uncertainty into their lives. In any event, Mr and Mrs X thought that, raising their concerns about the proposed support package, in the legal proceedings, was the most appropriate way to deal with their concerns.
  8. The day before the final Court hearing, the Council withdrew Mr X’s legal funding, so he was not represented at the final hearing. Mr X says that he did not feel confident enough to speak authoritatively at Court. Ideally, he wished he had asked for the proceedings to be adjourned so that he could obtain legal representation. But he says that the Council implied that, if this happened, the Council would reconsider the care plan for Child B and Child C and that they might be placed for adoption. The Council says that it has no evidence that this was said to them.
  9. The Council’s complaint investigation noted that Mr X had raised concerns about the proposed package of support, and that the complainants had requested that the grandchildren remained on a Care Order, so Mr and Mrs X would remain paid as family foster carers. Mr X says that he was conscious of their ages and that his employment was, not only very seasonal, it also required physical strength and he was unsure how long he could continue with this kind of work.
  10. The Children’s Guardian, appointed by the Court, recommended a SGO with a Supervision Order for 6 months.
  11. The Court made the SGO and a Supervision Order for six months. Child B and Child C became children in need rather than looked after children at this point.
  12. In October 2017, the SGO Panel agreed extra funding for the monthly supervised contact, which Child B and Child C had with their mother. The Supervision Order expired in January 2018. The Council considered that Mr and Mrs X were meeting most of the children’s needs.
  13. In April 2018, the Council agreed to reimburse some nursery fees and to pay these until July 2018. The SGO Panel considered whether the children had additional needs, but it was decided that they did not.
  14. In June 2019 Mr and Mrs X asked for the SGO financial support to continue because they were struggling financially. It was agreed that financial support for the children’s therapeutic needs would be sought through the Adoption Support Fund (a national fund provided by the Government to help support adoptive families and their children and also subsequently extended to children on SGOs). However, the SGO Panel did not consider there were grounds to extend the SG allowance beyond July 2019 because the children’s additional therapeutic needs could be met through the Adoption Support Fund (ASF).
  15. This ASF was obtained. But Mr X says that the therapy provided was unhelpful and they decided not to continue with this.

Mr X’s complaint to the Council

  1. Mr X complained in August 2017 and the Council considered his complaints under the three stages of the Children Act 1989 complaints procedure.
  2. At Stage 2, the Council upheld Mr X’s complaint about the delay in completing the Stage 1 response, about the level of support before the SGO application and about the frequent change of social workers. The Council also partially upheld the complaint that the withdrawal of Mr X’s legal financial assistance, the day before the final Court hearing, gave him inadequate time to decide how to proceed, including seeking alternative legal advice.
  3. The Council did not uphold Mr X’s complaint that he had been informed too late regarding its SG allowance practice, and also it considered that there was no fault in the removing of the SG allowance after the two year period.
  4. As part of his complaint to the Council, Mr X had asked for the SG allowance to be continued (at the full rate) and for an apology. The Council apologised for its identified faults, but it did not agree to pay the full fostering allowance.
  5. In May 2018, the Complaints Review Panel considered Mr X’s complaints. It broadly upheld the complaints. But it suggested the Council produced a SGO leaflet to give to potential carers and that, training events regarding SGOs for carers, should begin earlier in the SGO process. The Council agreed and it has now implemented these recommendations.
  6. Mr X remained dissatisfied and complained to the Ombudsman because he was concerned that his substantive complaint regarding the Council’s practice on SG allowances had not been upheld. In addition, he considered that the Council had not fully appreciated the negative impact on them by the withdrawal of the legal financial assistance, the day before the final Court hearing.

Anaylsis-Complaint (a)

  1. I have discussed this complaint with Mr X and with the Council and I have considered the extensive evidence available.
  2. It is very much to the Council’s credit that it has now accepted our finding that its interpretation of the legislation and statutory guidance on SGOs was misguided. It accepts that it will need to review its SG allowance practice to bring it in line with the case law and guidance.
  3. The Council has said that this fault was made in good faith and the Council’s intention was never to disregard the statutory guidance or the Ombudsman’s focus report. I accept that this is the case. Legislation, statutory guidance and case law is often complicated and can be open to interpretation.
  4. However, having sought legal advice, I remain satisfied that our finding of fault on the substantive aspect of the complaint concerning the practice of reducing the SG allowance over a two year period is appropriate and is in keeping with the legislation, guidance and the Ombudsman’s focus report. So, I am satisfied that there has been fault causing an injustice to Mr and Mrs X.
  5. Where there has been fault, the Ombudsman has to assess the injustice caused and, if satisfied that there has been an adverse impact, he will try to (i) put the complainant back in position he would have been but for the fault (wherever possible); (ii) see if others have suffered an injustice; and (iii) see whether a council should review and amend its practices.
  6. In this case, all three of the above are applicable. And the Council accepts this and therefore there is now an agreement on how to bring this investigation to a close.
  7. Understandably, in these difficult times, the Council says that it will require six months to review and amend its SG practice and issue a policy. It also needs time to review the other special guardian’s cases, back to November 2013 (when the Ombudsman issued his first focus report). The Council estimates that there are 37 families and 46 children who would have been adversely affected by the faults which I have identified.
  8. In respect of Mr and Mrs X, the Council estimates that they will receive £6,948.31 in backdated SG payments for the two year transitional period. The Council has provided a spreadsheet explaining how it has calculated the backdated payment. I am satisfied the Council has explained how it has reached this figure.

Complaint (b)

  1. The Council has raised a question about the interplay between the Ombudsman’s jurisdiction and the Court process in this case concerning the making of the SGO.
  2. I accept that it is entirely for the Court to determine the merits of making a SGO. And that issues of the support available, after a SGO is made, might form part of discussions at Court.
  3. But, the Court is primarily concerned with the child’s best interest in terms of the legal order required to achieve certainty and permanency for the future. SG allowances are means tested and councils have different policies. Therefore, we have taken the view that courts are unlikely to order councils to pay these allowances and that such support is a matter between a complainant and council.
  4. In addition, the withdrawal of the financial legal assistance in this case was made outside the Court arena, although it affected the legal proceedings for Mr X. So, I am satisfied that the Ombudsman does have the jurisdiction to comment on the Council’s decision to withdraw Mr X’s financial support at the last moment.
  5. In this case, the Council has already accepted that it was partially at fault to withdraw Mr X’s financial assistance in the way it did. This meant that he had to represent himself (but did not feel able to do so properly) and it gave Mr X no time to seek alternative legal assistance or to challenge the Council’s withdrawal of the legal assistance.
  6. It is also clear from the complaint papers that Mr and Mrs X were thinking of asking for the children to remain on Care Orders, whereby they would have continued to receive a family fostering allowance until the children were at least 18.
  7. I cannot say what would have happened if Mr X had had legal assistance for the final Court hearing. I note the Court’s Guardian recommended a SGO and the Court would have been under some obligation not to delay decisions about the children’s long-term permanency plans. But Mr and Mrs X will always be left wondering whether, if they had had legal assistance, this might have allowed the children to remain on Care Orders with them receiving a family fostering allowance.
  8. So, the complainants’ injustice is that they are left with some uncertainty about whether decisions by the Court might have been different.

Agreed action

  1. Where there has been avoidable distress, the Ombudsman’s recommendation to remedy such injustice is symbolic and payments are normally between £300 to £1,000 depending on the severity of the injustice, the vulnerability of those affected and whether the injustice is over a prolonged period. However, there is discretion to recommend a higher amount where the injustice is particularly severe and prolonged.
  2. In respect of complaint (a), the Council will within six weeks of the date of the final statement:
  • apologise to Mr and Mrs X for its error in its SG allowance practice; and
  • make the backdated payment.
  1. In respect of complaint (b), the Council has already apologised for its error. But it will now make a payment of £400 in recognition of the avoidable distress and uncertainty caused by the late withdrawal of Mr X’s legal assistance;
  2. Within six months, the Council will:
  • review and amend its SG allowance practice so it is in accordance with the legislation, statutory guidance and case law;
  • ensure that, any change in its SG revised practice guidance is overseen by the relevant cabinet member and/or scrutiny committee, so elected members are made aware of the decisions on this case and can ratify the new practice guidance; and
  • review other special guardians whose SG allowance were reduced over the two year period and make backdated payments to them.

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Final decision

  1. There has been fault causing an injustice to the complainants, and to other special guardians who were previously family foster carers. But there is now agreement on how to remedy the injustice caused to Mr and Mrs X, and to others similarly affected, by the faults identified. Therefore, I have completed my investigation, and I am closing the complaint.

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Parts of the complaint that I did not investigate

  1. I have not considered Mr and Mrs X’s current concerns about the cessation of their SG allowance. They are, in particular, dissatisfied with the recent financial assessment of their means, which means they are not entitled to financial assistance from the Council. This is a new complaint that Mr and Mrs X should make to the Council first.

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Investigator's decision on behalf of the Ombudsman

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