Decision : Upheld
Decision date : 09 Mar 2020
The Ombudsman's final decision:
Summary: there is no fault in the Council’s consideration of Mr D’s request for financial and other support under a Special Guardianship Order or in its handling of Mr D’s request for assessment of X’s special educational needs. The Council’s poor handling of Mr D’s complaints amounts to fault and this caused him injustice. The Council will apologise and pay him £500 to recognise this.
- The complainant, whom I shall refer to as Mr D, says the London Borough of Havering has failed to provide him with adequate support for his nephew, X, for whom he cares and obtained a Special Guardianship Order in January 2015. Specifically he says the Council failed to:
- provide him with financial support, help and advice about X’s schooling and special educational needs;
- deal properly with his complaint about this, in particular that it failed to consider it at stage 2 of the statutory complaints procedure after he asked for this; and
- properly process his request for papers under data access regulations.
What I investigated
- I am considering Mr D’s complaints about the Council’s failure to provide financial support and advice about his nephew’s schooling and special educational needs and about its failure to deal with his complaints about these. The final section of this complaint explains the reason I have not investigated the rest of the complaint.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I considered the written information Mr D provided with his complaint and discussed the complaint with Mr D. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
- I gave the Council and Mr D the opportunity to comment on my draft decision and took account of the responses I received before reaching a final decision on the complaint.
- 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.
What I found
What should have happened
- 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 tell their local council they intend to do this. 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, 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.
- 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.
- 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. This does not mean however that they are required to provide such services to everyone who has an SGO.
- 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”.
- 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)
- X began living with Mr and Mrs D in April 2013. They subsequently obtained a Special Guardianship Order for X. Mrs D died in early 2016 and since then Mr D has been providing X’s care.
SGO support and advice
- The Council says that it first became aware of X and Mr and Mrs D in April 2013 when it was contacted by the council where X had previously lived with his parents. I shall refer to this other council as Council Z. It says that X was living with Mr and Mrs D at this time, though no formal arrangement was in place. The Council says that when previously living with his parents X was the subject of a child protection plan to Z Council. The Council says that X was placed with Mr and Mrs D by Z Council following concerns about X’s parents. The Council argues that it was the responsibility of Z Council (because it says Z Council placed X with Mr and Mrs D) to provide them with support and advice about how care would proceed. Having sought information from Z Council I am however satisfied it did not place X with Mr and Mrs D and so had no duty to provide Mr and Mrs D with such support and advice. I have addressed this specifically in a complaint against Z Council under case reference 19016035.
- The next contact the Council had with Mr and Mrs D was in January 2014 when Mr D sought advice on how to make X’s living arrangements with them more secure as X’s mother was talking about collecting X. The social worker advised Mr D to contact the police if she turned up and to contact the social worker at Z Council as their records would confirm that X’s mother had agreed for X to go and live with Mr and Mrs D.
- In February 2014 Mr D told the Council he had an Interim Residence Order (since replaced by a Child Arrangements Order) in respect of X. The case notes show that Mr D asked if the Council would be able to provide financial assistance as he had paid £215 to make the Residence Order application. The social worker’s case notes state that s/he told Mr D that s/he did not know if the Council could provide financial assistance at that time as it was not yet clear whether the Council or Cafcass would be completing the assessment for the Residence Order. S/he asked if Mr D needed any other help and he replied that the family was managing and that X’s mother was providing money for X’s care.
- In June the social work case files record that a social worker advised Mr D that as the family had decided to apply for a Residence Order for X, it was a private matter and so the Council would not provide financial support.
- The Council says that in September 2014 it was advised that that Mr and Mrs D had applied to court to become X’s special guardians.
- The Council says it commissioned an independent social worker to undertake an SGO assessment, which started on 5th December 2014 and was completed on the 9th December 2014. The SGO was granted on 5th January 2015. The Council says that during the assessment process Mr and Mrs D were told that the Council could only offer financial support following a financial assessment. The social work case notes record that Mr D declined a financial assessment on16th December 2014. It confirms that in its report to the court, the Council stated “The couple are aware they can access advice and support from the London Borough of Havering via the Social Care Team. As this is an application via Private Law Proceedings the Local Authority is not in a position to provide financial support. Although Mr and Mrs D are entitled to a financial assessment the couple declined…..In the future should their financial situation change and impact on the placement they can approach their residing Local Authority to be financially re-assessed…”
- The Council says it did not hear from Mr and Mrs D following the award of the SGO in January 2015 until 2016.
- The Council says its records do not confirm that the Council offered Mr D a one off payment in 2015 for a bed and other items for X. It points out again that Mr D had declined a financial assessment so no payments would have been agreed. It also says that its records do not support Mr D’s belief that he had been offered other support in the form of benefits advice and points out that the social worker who completed the SGO assessment confirmed Mr D could seek advice and support but there is no evidence they asked for advice about benefits.
- Mr D pursued a complaint in 2016 and 2017 about the financial support for X. Broadly speaking the Council said that without a financial assessment it could not consider financial support and Mr D continued to refuse to complete a financial assessment.
Schooling and SEN
- The Council says Mr D asked the Council to assess X’s special educational needs in September 2017. In October 2017 the Council refused this request and advised Mr D of his right to request a review of this decision by appealing to the SEN Tribunal.
- Mr D did not appeal to the Tribunal but X’s school made a further request for a special needs assessment for X in July 2018. In August 2018 the Council agreed to undertake an assessment. An EHC plan was issued for X in April 2019.
Mr D’s complaint to the Council
- Mr D complained to the Council in May 2016. He complained that he had not received support in caring for X, that he wanted kinship care/fostering allowance for caring for X and for payments to be backdated.
- The Council acknowledged this promptly and said it would need more time than is allowed for under the complaints procedure to provide its response. It wrote its response to Mr D in June though it seems this was not sent to Mr D and this was an error.
- Mr D asked for the matter to be escalated to stage 2 of the statutory procedure in early July (having not received the June response) and then complained to the Director the Council’s children’s Services’ Team in July 2016 saying he had not received a response to the complaint he made in May 2016. He said he was asking his solicitor to initiate judicial review proceedings.
- In response the Council arranged a meeting for Mr D with senior Council officers. At the meeting the officers accepted that the Council had not met the timescales for providing the response at stage 1 of the complaints procedure and apologised for this. The Council accepts that the outcome of this meeting was not followed up in a letter to Mr D and that he was not told that he could ask for the matter to be progressed to stage 2 of the complaints process. The Council says it accepts that the complaints process was not properly followed at this point.
- Mr D’s solicitor wrote to the Council in April 2017 referring to an earlier letter sent in December 2016. The Council says it has no record of having received a letter in December 2016. When the Council did not respond the solicitor contacted the Council again in July 2017 and asked for the matter to be dealt with by a senior manager. It appears no response was provided by the Council.
- In late 2017 Mr D’s solicitor wrote to the Council again asking for the matter to be dealt with as a formal complaint. The Council responded and addressed the matters raised by Mr D’s solicitor:
- X is not a looked after child adding that the Council had told Mr D that if he was struggling to look after X he could ask the Council’s Early Help Service for an assessment/advice. The letter states that Mr D had declined this offer; and
- If Mr D wanted a special guardianship allowance he would need to complete a financial assessment and offered Mr D an appointment in January to complete this assessment.
Was the Council at fault and did this cause injustice?
- In relation to Mr D’s complaint about the failure to provide him with financial support I do not consider there is evidence of fault by the Council. The Council cannot provide financial assistance in the form of an SGO Allowance without completing a financial assessment as the allowance is means tested. X was not a looked after child before living with Mr and Mrs D and the evidence confirms that the decision for X to come and live with Mr and Mrs D was reached by agreement between X’s mother and Mrs D and did not involve children’s services at all. For this reason X was not a looked after child so no financial assistance provided related to looked after children is relevant to X living with Mr and Mrs D.
- In relation to X’s special educational needs I find no fault by the Council. The Council refused to assess X’s special educational needs in September 2017. This was a decision it was entitled to make and the only way for Mr D to challenge this decision was to appeal to the SEN tribunal. I am satisfied that the Council told Mr D this. It was Mr D’s choice whether or not to appeal to the Tribunal and he did not. When X’s school asked for an assessment the following year, the Council agreed and X was issued with an EHCP in 2019.
- The Council did not deal properly with Mr D’s complaints, either those he submitted or those submitted on his behalf by his solicitor. The Council’s responses were very delayed when they were made and the Council failed to tell Mr D about the statutory complaints procedure or consider the complaint under this process. This amounts to fault. The fault caused Mr D injustice in the form of avoidable time and trouble and frustration as he had to repeatedly pursue the matter and ended up instructing a solicitor to do so.
- The Council offered to make a payment of £300 to take account of the time and trouble Mr D was caused as a result of the Council’s poor handling of his complaint. I recommended a higher amount as the poor handling was exceptionally inadequate and caused more injustice than would ordinarily be caused by such a failing. To recognise the avoidable time and trouble and frustration the Council will therefore apologise and pay Mr D £500 within one month of the final decision on this complaint.
- In addition, within two months of the final decision on the complaint, the Council will provide me with evidence of how it will ensure that future complaints are properly identified and tracked so that responses are provided as required and that complainants are advised of their right to pursue their complaint to the next stage of the statutory complaints process, and then to this office after all three stages of the process are complete.
- There is no fault in the Council’s consideration of financial and other support to Mr D under the Special Guardianship Order or in its handling of Mr D’s request for assessment of X’s special educational needs. The Council’s poor handling of Mr D’s complaints amounts to fault that has caused him injustice and it will take the agreed action to recognise this.
Parts of the complaint that I did not investigate
- I did not investigate part c) of the complaint. This is because the Information Commissioner’s Office has the power to take enforcement action against a data controller for a breach of the relevant legislation if a Council refuses to provide information requested as a subject access request as Mr D alleges is the case here. So, I consider it would be better for Mr D to pursue this matter with the Information Commissioner and therefore exercised my discretion to not pursue this part of the complaint.
Investigator's decision on behalf of the Ombudsman