Summary: The Council was not at fault for reducing Ms B’s special guardianship allowance, because its decision was in line with the Special Guardianship Regulations. However, it failed to properly consider the use of its discretionary powers. It has agreed to assess Ms B’s finances and decide whether her circumstances justify discretionary payments on top of her allowance.

The complaint

1. The complainant, whom I refer to as Ms B, is a special guardian for her grandson.
2. Ms B complains that the Council reduced her special guardianship allowance below what it had promised. She says it made this decision without considering whether she could still support her grandson following the reduction.
3. Ms B says her grandson has additional needs which require greater financial support. She says the Council failed to assess these needs before deciding not to increase her allowance.
4. Ms B says the Council did not tell her how it had calculated its deductions to her allowance in 2019.
5. Ms B says the Council provided extra payments to help her pay her grandson’s nursery fees, but, when he left nursery and went to school, it did not consider whether there were new costs (such as after-school clubs) she needed help with.

Back to top

What I have investigated

6. I have investigated matters which Ms B became aware of in 2018 and 2019.
7. The final paragraph of this decision statement sets out why I did not investigate other matters.

Back to top

The Ombudsman’s role and powers

8. 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)
9. 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)
10. 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

11. I considered information from Ms B and the Council. I wrote to Ms B and the Council with my draft decision and gave them the opportunity to comment.

Back to top

What I found

What should have happened?

The Special Guardianship Regulations 2005

12. These Regulations set out the law which applies when councils are deciding financial support to special guardians.
13. Regulation 13 says a council, in deciding financial support, must take account of any other financial resources (including benefits) available to the guardian. The council must also consider the guardian’s reasonable outgoings.
14. Regulation 6 says a council can pay a guardian more if the child’s needs require greater financial support.
15. Regulation 16 says that, when a council makes a decision about special guardianship support, it must provide reasons for it.
16. Regulation 18 says councils must review each special guardian’s financial support arrangements at least annually.

Department for Education special guardianship guidance

17. This statutory guidance accompanies the Regulations and provides more detailed instructions to councils on how to provide support to special guardians.
18. The guidance says financial support paid under the Regulations cannot duplicate any other payment to the guardian in respect of the child.
19. The guidance also says that, in deciding financial support, councils should have regard to the fostering allowance it would pay if the child were fostered.

The Council’s special guardianship policy

20. This policy says that, when the Council first considers providing financial support to a special guardian, it may ask the guardian to complete a financial assessment form. It says this procedure “applies equally to a review of financial support.”

What happened?

21. A special guardianship order (SGO) was issued for Ms B’s grandson in 2014. The Council’s financial support agreement said Ms B would receive the Council’s fostering rate, with a deduction equal to the child benefit she would receive. It said the Council would review Ms B’s allowance annually.
22. The agreement also said the Council would make extra payments to help Ms B with her grandson’s nursery fees.
23. In 2018 the Council warned people who received special guardianship allowances that it had not been making the right deductions to their payments, and this could mean changes to the payments at their next annual review.
24. The Council completed Ms B’s review in 2019. It said it should have been making deductions equal to the child tax credits she received for the children (as well as the child benefit deductions), but it had not done so. It said it would now be making the right deductions.
25. Ms B complained that the Council was going against what it had promised. She said the Council had made deductions to her allowance without considering her outgoings, or her grandson’s additional needs.
26. The Council conducted an assessment of Ms B’s grandson in April 2019, having received a referral about an unrelated matter. It decided Ms B was meeting her grandson’s needs.
27. The Council did not undertake any further assessment of Ms B’s circumstances.

My findings

28. Councils must comply with the Regulations and guidance when deciding special guardianship support. This means they cannot duplicate any other payments – such as child tax credits and child benefit – the guardian receives for the child.
29. However, councils still have the power to consider individual circumstances before deciding a payment, and there are scenarios in which a council can agree a payment which is higher than the standard allowance. One is when the subject child has needs which require greater financial support. Another is when, having considered the guardian’s reasonable outgoings, the Council decides they need extra payments to prevent financial hardship.
30. If a council has reason to believe that either a child’s needs or a guardian’s expenditure means they may need more financial support, I would expect it to take reasonable steps to consider these issues.

Changes to the Council’s approach

31. The Council’s approach pre-2018 was to pay special guardians the same rate as its foster carers, with deductions equal to the child benefit they received.
32. The national minimum fostering allowance is designed to accommodate the fact that foster carers (who do not have any parental responsibility for the children they look after) cannot claim child benefit or child tax credits. Given that Ms B receives child tax credits for the children, and the guidance says councils cannot duplicate other payments made to a special guardian, the Council should have been making child tax credit deductions as well.
33. It did not do this before 2018. At the time of the SGOs, Ms B did not know her allowance would reduce in the future.
34. I do not intend to review the Council’s decisions before 2018. The Council has admitted its approach was wrong, and has apologised to the people affected. Any injustice to Ms B was outweighed by her receiving a higher allowance than she should have for several years.
35. The matter at hand is the Council’s decision, in 2018, to reduce Ms B’s allowance below what it had promised.
36. The Council told Ms B in 2014 that her allowance would be reviewed annually, which in itself means the allowance could be subject to change. It then, in 2018, decided her allowance would match the Council’s fostering rate, with deductions for both child benefit and child tax credits.
37. Although it is understandable that Ms B is dissatisfied with a reduction in her allowance which she did not anticipate beforehand, the Council’s approach is now in line with the Regulations and guidance (which it previously was not).
38. I am also satisfied that the Council explained the reason for the change to Ms B’s allowance.
39. This was not fault by the Council.

Ms B’s individual circumstances

40. As set out earlier in this decision statement, a council – even when paying a special guardian its fostering rate and making the correct deductions – can make extra payments if the guardian’s finances, or the child’s needs, justify them.
41. If a guardian reports that a reduction of their allowance has caused them financial hardship, I would expect the council to complete a financial assessment (under Regulation 13) to decide whether they can afford their reasonable outgoings, and whether it should make an extra payment.
42. If a guardian believes the needs of a child they are looking after require greater financial support, I would expect the council to assess whether those needs justify an extra payment under Regulation 6.
43. The Council did a needs assessment of Ms B’s grandson, but decided she was still meeting his needs after the reduction to her allowance.
44. I cannot decide the allowance a council should provide to a special guardian. I can only look at whether the council has met its legal duties and properly considered the use of its discretionary powers. If it has, then I cannot question its decision.
45. In my view, the Council did properly consider Ms B’s grandson’s needs before deciding whether to make payments under Regulation 6.
46. However, Ms B also complained that the Council failed to consider her outgoings before reducing her allowance. The suggestion is that her outgoings justify an increased payment.
47. Although Ms B said this, the Council failed to assess her financial circumstances under Regulation 13, and failed to consider whether those circumstances would justify the use of its discretionary powers to provide extra payments.
48. This was fault by the Council. It should now conduct a financial assessment of Ms B, and should decide whether to make extra payments on top of her allowance.

Back to top

Agreed actions

49. The Council has agreed to conduct a financial assessment of Ms B.
50. The Council has agreed that, when it has completed its financial assessment, it will write to Ms B and tell her whether her financial circumstances justify extra payments on top of her special guardianship allowance.
51. These actions should be completed within six weeks of this decision statement.

Back to top

Final decision

52. The Council was not at fault for reducing Ms B’s special guardianship allowance. However, it failed to properly consider the use of its discretionary powers. The agreed actions remedy Ms B’s injustice.

Back to top

Parts of the complaint that I did not investigate

53. I did not investigate Ms B’s complaint about the Council failing to replace her grandson’s nursery fees when he left nursery, or to consider whether there were new costs she needed help with. Her grandson would have started school in 2016 at the latest, so this is a late complaint, and there is no reason she could not have complained earlier.

Back to top

Investigator's decision on behalf of the Ombudsman