Summary: The Council was not at fault for reducing Mrs X’s special guardianship 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. However, it was at fault for a delay in assessing Mrs X’s finances. It has agreed to make a payment of £200 to recognise her injustice.

The complaint

1. The complainant, whom I refer to as Mrs X, is a special guardian for three children.
2. Mrs X complains that the Council reduced her special guardianship allowance below what it had promised. She says this reduction meant she could not financially support the children.
3. Mrs X says that, after the Council reduced her allowance, she was living without enough financial support for several months. She says the Council eventually agreed to make extra payments and to back-date these payments. However, the Council only intends to provide these extra payments for three years. She says she will be in financial hardship again in three years’ time.
4. Mrs X also complains about inaccuracies in a needs assessment the Council completed.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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)
8. 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

9. I considered information from Mrs X and the Council. I wrote to 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

10. These Regulations set out the law which applies when councils are deciding financial support to special guardians.
11. 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.
12. 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).
13. 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.
14. Regulation 6 says a council can pay a guardian more if the child’s needs require greater financial support.
15. 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.
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.”

The General Data Protection Regulation (GDPR)

21. 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?

22. Special guardianship orders (SGOs) were issued for the children Mrs X looks after in 2017. The Council’s financial support agreement said Mrs X would receive the Council’s fostering rate for all three children, with deductions equal to the child benefit she would receive. It said the Council would review this allowance annually.
23. The agreement also said Mrs X would receive extra payments for all three children equal to ‘skills band’ payments (which are something foster carers receive to recognise their training and experience). It said she would receive these for two years only.
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 Mrs X’s review later in 2018. 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.
26. In December 2018 Mrs X complained that the Council was going against what it had promised. She said she would be unable to financially support the children if her allowance reduced, particularly when her skills band payments stopped in February 2019.
27. The Council agreed to assess the children’s needs to decide if they required greater financial support. It completed this assessment, and decided the deductions to Mrs X’s allowance did not stop her meeting the children’s needs.
28. In May 2019 the Council also completed a financial assessment. It decided to make extra payments of £160.02 per week on top of Mrs X’s allowance to help her meet repayments on a loan. It decided it would make these payments for three years, although they would be subject to annual review along with Mrs X’s allowance. It also decided to back-date the payments.
29. Mrs X also complained about the content of the Council’s needs assessment. She said it contained inaccuracies. The Council advised her of her 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 Mrs X 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.
35. It did not do this before 2018. At the time of the SGOs, Mrs X did not know her allowance would reduce in the future.
36. 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 Mrs X was outweighed by her receiving a higher allowance than she should have for several years.
37. The matter at hand is the Council’s decision, in 2018, to reduce Mrs X’s allowance below what it had promised.
38. The Council told Mrs X in 2017 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.
39. Although it is understandable that Mrs X 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).
40. This was not fault by the Council.

Mrs X’s individual circumstances

41. 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.
42. 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.
43. 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.
44. I have seen no evidence that Mrs X told the Council that she requires a higher allowance because of the needs of the children she is looking after. Nonetheless, the Council did a needs assessment of the children, but decided their welfare was not affected by the deductions to Mrs X’s allowance.
45. Mrs X did tell the Council she was suffering financial hardship because of the deductions to her allowance, as well as the impending loss of her skills band payments. The Council did a financial assessment, and decided to make extra payments of £160.02 per week on top of Mrs X’s allowance to help her meet repayments on a loan. It decided to make these payments for three years, and it backdated them.
46. 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.
47. In my view, the Council did properly consider Mrs X’s circumstances before deciding whether to exercise its powers to make extra payments, and did act in line with the Regulations.
48. Because of this, I cannot question the decision about Mrs X’s allowance, and I have not found fault with the Council.
49. Although Mrs X feels that she will, again, face financial hardship when the Council stops her extra payments, I am unable to predict what her circumstances will be in three years’ time.
50. If the removal of the extra payments in three years does cause hardship to Mrs X, she should tell the Council. It will then be for the Council to consider whether to continue the payments.

Delay

51. Although I have not found fault with the Council’s decision about Mrs X’s allowance, I note that – after she told the Council that the deductions to the allowance would cause hardship – it took around five months to assess her finances.
52. This, in my view, was too long. Given that the Council eventually decided that Mrs X’s circumstances justified an extra payment on top of her allowance, it is reasonable to conclude that she would have experienced some difficulty in the months preceding the Council’s decision.
53. The Council did backdate its extra payments, so most of Mrs X’s injustice has been remedied. However, it is likely that her financial circumstances before then caused her some degree of uncertainty and distress, which could have been avoided if the Council had completed its financial assessment sooner.
54. The Council should make a token payment to Mrs X to recognise this.

The Council’s needs assessment

55. Mrs X complained about inaccuracies in the Council’s needs assessment. The Council told her she could submit a request to rectify the information in the assessment under the GDPR.
56. I am satisfied that the Council has given Mrs X the opportunity to correct the assessment, so do not intend to consider the matter further.
57. If Mrs X is dissatisfied with the Council’s response to any rectification request she makes, she can complain to the Information Commissioner, who is best-placed to consider such matters.

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Agreed action

58. The Council has agreed to make a payment of £200 to Mrs X to recognise her injustice from its delay in assessing her finances.
59. This action should be completed within six weeks of the date of this decision.

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Final decision

60. The Council was not at fault for reducing Mrs X’s special guardianship allowance or for its consideration of whether to make extra payments. However, it was at fault for a delay in assessing her finances. The agreed action remedies her injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman