Summary: The Council was at fault for providing inconsistent advice to Mr and Mrs X about when it would review their special guardianship allowance. However, it has decided not to recover the higher allowance it incorrectly paid them for 16 months, which outweighs any injustice arising from the fault. The Council was not at fault for reducing Mr and Mrs X’s allowance in February 2019, or for its consideration of whether to make extra payments. It complied with the Special Guardianship Regulations and properly considered the use of its discretionary powers.

The complaint

1. The complainants, whom I refer to as Mr and Mrs X, are special guardians for two children whom they previously fostered.
2. Mr and Mrs X complain that the Council reduced their special guardianship allowance below what it had promised. They say the Council should stick to what it agreed.
3. Mr and Mrs X say the children they look after have additional needs which require greater financial support.

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The Ombudsman’s role and powers

4. 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)
5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
6. 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)
7. 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.

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How I considered this complaint

8. I considered information from Mr and Mrs X and the Council. I wrote to Mr and Mrs X and the Council with my draft decision and considered their comments.

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What I found

What should have happened?

The Special Guardianship Regulations 2005

9. These Regulations set out the law which applies when councils are deciding financial support to special guardians.
10. 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.
11. Regulation 13 also says councils must only disregard a guardian’s financial resources when considering helping them with legal costs. It may, however, disregard them when considering providing financial support for:
• initial accommodation costs;
• contact costs;
• special care for a child with additional needs (under Regulation 6); or
• time-limited extra payments to former foster carers (under Regulation 7).
12. Regulation 10 says a guardian must give the council an annual statement of their financial circumstances, and must tell the council immediately if those circumstances change.
13. Regulation 6 says a council can pay a guardian more if the child’s needs require greater financial support.
14. Regulation 7 says a council can make an extra payment to a guardian who fostered the subject child, when that extra payment was included in the carer’s fostering allowance. These payments can only continue for two years after the date of the order, unless the council decides there are exceptional circumstances.
15. Regulation 18 says councils must review each special guardian’s financial support arrangements at least annually.

Department for Education special guardianship guidance

16. This statutory guidance accompanies the Regulations and provides more detailed instructions to councils on how to provide support to special guardians.
17. The guidance says financial support paid under the Regulations cannot duplicate any other payment to the guardian in respect of the child.
18. 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

19. 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.”

The General Data Protection Regulation (GDPR)

20. The GDPR includes a right for individuals to have inaccurate personal data rectified. They can make a request verbally or in writing. The body receiving the request can, in certain circumstances, refuse it.

What happened?

21. Special guardianship orders (SGOs) were issued for the two children Mr and Mrs X were fostering in October 2017. Both support plans confirmed that Mr and Mrs X would receive the Council’s fostering rate for both children, with deductions equal to the child benefit they would receive. One plan said there would be a further deduction if Mr and Mrs X received child tax credits, but the other said there would not be. The Council made no child tax credit deductions for either child.
22. The Council’s financial support agreement said Mr and Mrs X would receive an extra payment equal to a ‘skills band’ payment (which is something foster carers receive to recognise their training and experience). It said Mr and Mrs X would receive this for two years only. It said their overall allowance would be reviewed yearly.
23. The Council also wrote support plans for the children, which said Mr and Mrs X’s allowance would, in fact, not be reviewed until two years after the date of the order.
24. 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.
25. The Council completed Mr and Mrs X’s review in February 2019. It said it should have been making deductions equal to the child tax credits they 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.
26. Mr and Mrs X complained that the Council was going against what it had promised. In a separate letter, their MP told the Council they were concerned about how they would financially survive.
27. The Council agreed to assess the children’s needs to decide if they required greater financial support. It completed this assessment in March 2019. It decided the deductions to Mr and Mrs X’s allowance did not stop them meeting the children’s needs.
28. The Council also completed a financial assessment. It decided Mr and Mrs X’s financial circumstances did not justify extra payments or a continuation of their skills band payments.
29. Mr and Mrs X also complained about the content of the Council’s needs assessment. They said it contained inaccuracies. The Council advised them of their right to rectify information under the GDPR.

My findings

30. 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.
31. 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.
32. 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

33. 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.
34. 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 Mr and Mrs X receive 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.
35. It did not do this before 2018. At the time of the SGOs, Mr and Mrs X did not know their allowance would reduce in the future.
36. The Council also gave Mr and Mrs X inconsistent advice before the SGO was made. Its support plans said it would not review their allowance until October 2019. This was incorrect, as all special guardianship allowances are subject to yearly review. Its financial support agreement gave the correct information.
37. The Council has admitted its failure to make child tax credit deductions was wrong, and has apologised to the people affected. However, I have not made a finding of fault on this issue, as it is not the subject of Mr and Mrs X’s complaint.
38. If the Council had consistently told Mr and Mrs X in 2017 that their allowance would be reviewed after a year – which is what the Regulations require – then this would have been a clear statement that the allowance could be subject to change in late 2018. However, the Council contradicted itself on this point, and it suggested (in the support plans, at least) that the allowance would remain unchanged for two years.
39. This was fault by the Council, and it seems likely that Mr and Mrs X experienced some injustice in the form of uncertainty when the Council reduced their allowance after 16 months.
40. However, the Council was correct to review Mr and Mrs X’s allowance – regardless of what it told them in 2017 – and its approach is now in line with the Regulations and guidance (which it previously was not). Its failure to deduct child tax credit payments from their allowance at the outset means they were, in effect, paid more than they were entitled to receive under the Regulations.
41. The Council has decided not to recover the overpayments, in recognition of its own error. Because of this, Mr and Mrs X received a higher allowance than they should have for 16 months. This outweighs any injustice they experienced from the Council’s failure to properly advise them about the review, and I do not consider any further action necessary on this point.

Mr and Mrs X’s individual circumstances

42. 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.
43. 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.
44. 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.
45. Mr and Mrs X believe they require a higher allowance because of the needs of the children they are looking after. However, I have seen no evidence that they told the Council this.
46. Nonetheless, the Council did a needs assessment of the children. It decided their welfare was not affected by the deductions to Mr and Mrs X’s allowance.
47. The Council also did a financial assessment of Mr and Mrs X. It decided their circumstances did not justify extra payments or a continuation of their skills band payments (which ended in October 2019, in line with the Regulations).
48. 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.
49. In my view, the Council did properly consider Mr and Mrs X’s circumstances before deciding whether to exercise its powers to make extra payments, and did act in line with the Regulations.
50. Because of this, I cannot question the decision about Mr and Mrs X’s allowance, and I have not found fault with the Council.

The Council’s needs assessment

51. Mr and Mrs X complained about inaccuracies in the Council’s needs assessment. The Council told them they could submit a request to rectify the information in the assessment under the GDPR.
52. I am satisfied that the Council has given Mr and Mrs X the opportunity to correct the assessment, so do not intend to consider the matter further.
53. If Mr and Mrs X are dissatisfied with the Council’s response to any rectification request they make, they can complain to the Information Commissioner, who is best-placed to consider such matters.

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Final decision

54. The Council was at fault for providing inconsistent advice to Mr and Mrs X about when it would review their special guardianship allowance. However, it has decided not to recover the higher allowance it incorrectly paid them for 16 months, which outweighs any injustice arising from the fault.
55. The Council was not at fault for reducing Mr and Mrs X’s allowance, or for its consideration of whether to make extra payments. It complied with the Special Guardianship Regulations and properly considered the use of its discretionary powers.

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Investigator's decision on behalf of the Ombudsman