Summary: Miss X complained that the Council failed to offer appropriate financial assessment and support when she became a special guardian. The Council has investigated and upheld her complaint; however, she is unhappy with the remedy offered. The Council was at fault for failing to consider her loss of earnings at her annual review as agreed. The Council should make these considerations and whether it is appropriate to offer a remedy.

The complaint

1. Miss X complained that the Council failed to offer appropriate financial assessment and support when she became a special guardian. The Council has investigated and upheld her complaint; however, she is unhappy with the remedy offered.
2. Miss X said the Council’s fault has resulted in financial hardship and affected her emotional wellbeing. Miss X wants the Council to follow the recommendations made by the stage three panel.

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The Ombudsman’s role and powers

3. 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)
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)
5. 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

6. I discussed the complaint with Miss X and made enquiries of the Council.
7. I considered the Council’s stage two investigation and the findings of the stage three panel.
8. I considered the relevant legislation alongside the Council’s policy’s and procedures.
9. Miss X and the Council both had the opportunity to comment on my draft decision.

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What I found

10. Regulation 24 of ‘The Care Planning, Placement and Case review (England) Regulations 2010’ allows councils to temporarily approve friends and families as foster carers for a period of sixteen weeks. The Council must assess the suitability of the person and their accommodation before they are temporarily approved as a foster carer.
11. The Council’s payment for friend and family foster carers is different to that of its approved foster carers. Its 2018 policy states it pays friend and family carers the fostering allowance, but they do not receive the additional reward payment, unless they have completed the ‘skills to foster’ training or are approved foster carers.
12. The Council pays approved foster carers an additional reward payment on top of the fostering allowance to reflect their training, skills, experience and the expectation that they will have any child placed with them.
13. Foster carers are not entitled to receive child benefit or child tax credit.

Special guardianship orders

14. A special guardianship order is a court order that gives a carer parental responsibility for a child. Special guardians share parental responsibility with the child’s parents, but they can exercise their parental responsibility to the exclusion of all others. If the child was in care, the child is no longer looked after by the Council once the order is made.
15. ‘The Special Guardianship Regulations 2005’, state that councils may provide financial support if they consider it is necessary to ensure a special guardian can look after a child. The 2005 Regulations state “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 payable in accordance with the Regulations to help secure a suitable special guardianship arrangement where such an arrangement cannot be readily made because of a financial obstacle”.

16. Councils must carry out an assessment to determine whether financial support is necessary. The assessment must take account of the child’s needs and the family’s financial resources, including benefits and outgoings. There must be no financial reward element in financial payments made to special guardians other than where there is transitional provision for foster carers becoming special guardians. This is intended to support people who have acted as a foster carer for the council who chooses to become a special guardian for the child they have been fostering. The Regulations state this must be agreed before the Order is made.

The statutory complaints procedure

17. There is a formal procedure set out in law which the Council must follow to investigate complaints made by looked-after children and children in need. This procedure applies to complaints about special guardianship allowances.

The procedure involves three stages:

18. Stage one - local resolution by the Council. This stage takes between ten and twenty working days.
19. Stage two - an investigation by an independent investigator who will prepare a detailed report and findings to which the council must respond. The independent investigator does not line manage anyone involved in the complaint. If a complainant is still dissatisfied after stage two, they have the right to ask for their complaint to be considered at stage three. A stage two investigation for a complex case should take no more than 65 working days.
20. Stage three - consideration by an independent review panel which may make further recommendations. A review panel should begin within 30 working days of the request.
21. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

Background

22. Miss X is the maternal aunt of Y; she has children of her own. In 2015, the Council took Y into care and placed him with an approved foster carer. Miss X and her partner, put themselves forward to become special guardians for Y and the Council started the assessment process.
23. In June 2015, Y’s foster carers were going on a planned holiday. The Council temporarily approved Miss X as a foster carer. The Council agreed that Miss X could continue to care for Y after the foster carer returned from holiday and up until the court date for the special guardianship order. The Council paid Miss X £3056 for nine weeks of foster care from mid-June to mid-August. That was a weekly rate of £329 which included the fostering allowance and the reward payment.
24. The Court made the special guardianship order on 28 July 2015 which was sooner than expected. The Council later recouped three weeks of fostering payments after it realised it had paid Miss X both the special guardianship allowance and fostering payments at the same time.
25. In September 2015, Miss X complained twice to the Council. The Council failed to respond to her complaints. On 1 February 2018, Miss X complained again to the Council about the financial support it had provided to her as Y’s special guardian; how it had calculated her payments and how the Council had assessed the impact of being a special guardian upon Miss X. The Council responded on 5 April 2018. It did not uphold her complaints. Miss X escalated her complaint to stage two on 17 April 2018.

The Council’s stage two investigation and considerations of Miss X’s complaint

26. The Council initially attempted to resolve Miss X’s complaint through dispute resolution, but Miss X remained dissatisfied. In August 2018, the Council appointed an independent investigating officer and agreed the following headings of complaint. These were that the Council:
1. failed to ensure Miss X received legal advice before the hearing for the special guardianship order;
2. failed to offer a financial assessment and agree the special guardian support plan with Miss X;
3. delayed in paying the special guardianship allowance after Miss X had asked for a financial assessment;
4. failed to consider Miss X’s request for support to pay for Y to go to nursery when she had to return to work;
5. asked her to make alterations to her home to make it suitable for Y, but did not offer any financial support for the alterations made;
6. failed to respond to the complaints she made in 2015; and
7. failed to pay her the full foster carer rate for the period that she agreed to be a foster carer after the Court made the special guardianship order earlier than expected.
27. The Stage two investigation upheld five of Miss X’s complaints (a, b, c, d and f). It recommended that:
• The Council ensured special guardians are offered legal advice at the earliest opportunity funded by the Council.
• Special guardians are asked to confirm in writing if they wish to be considered for financial support.
• Support plans are signed by all relevant parties.
• Requests for support, such as support for a nursery, are considered by a suitably senior officer.
• The Council apologise and consider time and trouble payment for the delay in responding to her complaints.
28. The Independent Officer submitted their reports on 17 January 2019, and the Council wrote to Miss X on 12 April 2019 accepting the stage two’s recommendations and findings. It offered Miss X £300 for the delay in dealing with the complaint; £50 for the delay in sending its stage two response and £865 as a good will payment. That payment was six weeks of fostering allowance, which at the time was £144 a week.
29. Miss X was unhappy with the outcome of the stage two and requested the Council escalate her complaint to stage three. She said the Council had not considered her complaint fairly.
30. The stage three panel upheld the three outstanding complaints. It found that in the absence of legal advice Miss X would not have been aware of the financial support and long-term impact of becoming a special guardian. The panel recommended the Council should:
• Consider Miss X’s nursery costs and loss of earnings from 2015 and to make a reasonable contribution towards those costs.
31. The panel did not make recommendations that the Council should reimburse any initial costs for renovations or changes Miss X made to her property. It noted there was confusion about what was expected but there was no legal obligation for the Council to pay for the removal and disposal of furniture or the cost of buying replacement furniture.
32. Following the stage three panel’s recommendations, the Council wrote to Miss X and said that at her next annual review, it would consider financial redress of nursery fees. It would also consider the financial support going forward. It did not change its initial offer of £865 to cover the period when Miss X became a special guardian sooner than expected, or the £350 for the delays in processing the complaint.
33. Miss X was unhappy with the Council’s response and on 24 July 2019, she brought her complaint to the Ombudsman. She said the Council should reimburse her for changes made to her home; that it had failed to consider her loss of earnings and nursery fees; and that the offer of £865 was less than what was paid by a foster care agency used by the Council in 2015.
34. In response to enquiries the Council said Miss X had brought her complaint to the Ombudsman before it completed the next financial review which was due in August 2019, therefore it had not yet considered nursery costs. Despite my requests for information about whether this review could be completed whilst I completed my investigation, the Council failed to respond.

My findings

The costs incurred by Miss X when she became a special guardian

35. The Regulations state the Council may provide financial support if they consider it is necessary to ensure a special guardian can look after a child and if there is a likelihood the placement would fail. But the Regulations do not say that the council must provide that support.
36. The stage two investigation found there was no evidence the Council had told Miss X to make alterations to her property. The stage three panel said that in the absence of legal advice, it upheld Miss X’s complaint that the Council did not tell her she may be entitled to support for alterations she made to her home to accommodate Y. However, the panel did not recommend the Council financially remedy Miss X for those costs. Therefore, the Council was not at fault for not offering Miss X financial redress for this in its stage three response.
37. Without specific evidence demonstrating the Council directed Miss X to make alterations to her property, the Ombudsman would not seek a financial remedy.

The Council’s offer to financially remedy Miss X £865

38. The Council initially placed Y with Miss X after it temporarily approved her as a foster carer. The Council has been unable to provide me with its friend and family foster care policy from 2015, but according to its 2018 policy, Miss X should have been paid the fostering allowance and not the reward element. That was because she had not completed the ‘skills to foster’ training nor was she an approved foster carer. That meant the Council should have paid Miss X £144 a week. As the Council paid Miss X at the approved foster carer rate of £329 a week, it overpaid her by £185 per week for approximately six weeks. That was a £1110 overpayment. Although that was fault it has not caused Miss X an injustice.
39. Miss X complains the decision to not pay her the full fostering rate after the special guardianship order was granted has left her financially disadvantaged. However, Miss X has already been paid in excess of what she was entitled. In addition, the Council has also offered an additional payment of £856 to remedy the fact that she acted as a foster carer for less time than she expected. We would not expect the Council to mirror agency costs, but the rates that it would have paid. The Ombudsman does not find fault in the financial remedy offered to Miss X.
40. Miss X was not an approved foster carer for the Council therefore does not have entitlement to receive the foster carer allowance and reward rate after the special guardianship order was granted.

The Council’s failure to consider a financial remedy to Miss X for loss of earnings and nursery costs

41. The panel found that because of the lack of legal advice Miss X was ‘ill equipped’ to understand nursery provision and the financial implications of returning to work.
42. The Council’s stage three response said it would consider Miss X’s nursery costs at the next annual review. It was silent on loss of earning.
43. Miss X wrote to the Council rejecting its stage three offer and asking it to consider her loss of earnings as recommended by panel. The Council completed the annual review in August 2019 but said it did not consider the loss of earnings because Miss X had rejected its stage three response.
44. The Council did not write to Miss X and explain that because she had rejected its stage three offer, it would not consider her loss of earnings at the financial review. That was fault. It has caused Miss X an injustice as it has further delayed an outcome to her complaint.

Delays in the council’s complaint response

45. The Council has accepted fault for delays in how it responded to Miss X’s complaint. It has offered £350. That remedies the injustice in this case.

Agreed action

46. Within one month of my final decision the Council will consider the additional expenses Miss X incurred for nursery provision and notify her of its decision.

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Final decision

47. There was fault in how the Council considered financial support to be paid to Miss X before she became a special guardian. The Ombudsman recommends the Council considers Miss X’s nursery expenditure and loss of earnings and whether financial remedy is appropriate. The Council has agreed to my recommendations therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman