Summary: Miss X complained about the Council’s failure to support her in her role as Special Guardian. She says this caused both financial hardship and distress. The Ombudsman has found fault in a number of areas, including significant underpayment of the Special Guardianship Allowance. To remedy the injustice caused, the Council has agreed to recalculate her allowances properly, reimburse some of her legal costs and apologise. The Council has also agreed to review allowances it has made to others who may have been disadvantaged like Miss X.

The complaint

1. Miss X complains that the Council unfairly reduced the allowance she received as Special Guardian for her two granddaughters. She also complains about the Council’s inadequate complaint response that did not address all of the matters she complained about, specifically:

• Her request for reimbursement of her legal costs incurred during the SGO court proceedings;
• The poor service she received from named officers; and
• The failure to carry out a review of the girls’ SGO care plan/financial assistance plan as required by the court order.

2. Miss X says the Council’s actions have caused her avoidable financial hardship and distress.

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What I have investigated

3. I have not investigated Miss X complaint about the actions of specific social workers. Instead, this investigation has focused on the actions of the Council as whole.

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The Ombudsman’s role and powers

4. 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)
5. We may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. Where we identify fault in relation to a complaint, we may also make recommendations not only to remedy the particular injustice sustained by the complainant, but also to prevent injustice being caused in the future in consequence of similar fault. (Local Government Act 1974, section 31(2B), 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)

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How I considered this complaint

8. I discussed the complaint with Miss X and considered the written information she provided. I made written enquiries of the Council. I took account of all the information before reaching a draft decision on the complaint. This was shared with the Council and Miss X before I reached my final decision.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Law and policy

Special Guardianship Orders and Allowances

10. Under a Special Guardianship Order the Courts appoint someone, often extended family members, like grandparents, to be a child’s special guardian who will then become responsible for all day to day decisions about the child.
11. The Special Guardianship Regulations 2005 (amended in 2016) and the Special Guardianship Statutory Guidance set out the arrangements for financial and other support for Special Guardians.
12. Councils are required to have regard to the Statutory Guidance for local authorities on the Special Guardianship Regulations 2005, as amended. This means councils must substantially follow the guidance unless there are good or cogent reasons to do differently. The Guidance says that in determining the amount of a Special Guardianship Allowance, a council should have regard to the amount of fostering allowance that would have been paid if the child had been fostered. Paragraph 65 of the Guidance states that

“in determining the amount of any ongoing financial support, the local authority should have regard to the amount of fostering allowance which would have been payable if the child were fostered. The local authority’s core allowance plus any enhancement that would be payable in respect of the particular child, will make up the maximum payment the local authority could consider paying the family. Any means test carried out as appropriate to the circumstances would use this maximum payment as a basis.”.

13. Case law has considered this matter. In 2010 (R v Kirklees Council) the Court found paying Special Guardianship Allowance as a fixed percentage of fostering allowance without any justification did not comply with the Guidance and was unlawful and that councils should pay Special Guardianship Allowance at an equivalent rate to foster carers. A second case in 2012 (R v London Borough of Merton) found that councils should use the National Fostering Network’s minimum allowance as a starting point for calculation. The Court held that Merton Council had not produced any reasons for not complying with paragraph 65 of the Guidance and so the decision to adopt a level of Special Guardianship Allowance at two thirds of the Network’s minimum was unlawful.
14. One of our earlier reports (12 006 209) found fault by Liverpool City Council in calculating its Special Guardianship Allowance at a level below the amount it paid foster carers. Our recent report against North Tyneside MBC (17 002 928) confirmed Special Guardianship Allowances should not be calculated as a percentage of fostering allowance.
15. We have issued two focus reports about this area of council activity: “Family Values: Council services to family and friends who care for others’ children” (2013); and “Firm Foundations: complaints about council support and advice for special guardians” (2018). In these we draw on lessons from complaints, including those where councils did not set out clear guidance on how they calculate Special Guardianship Allowances and had faulty policies.
16. These focus reports identified some key recommendations based on learning from our investigations. These include:

• give clear unambiguous advice to people who are considering becoming Special Guardians;
• be as clear as possible about the support that might be available and how the council will assess the applicant’s support needs;
• back up verbal advice and guidance in writing wherever possible, particularly where this may have long term consequences;
• keep clear and transparent records of contact with Special Guardians;
• make sure support plans are shared, discussed and agreed with Special Guardians and this is well documented; and
• set out the approach to calculating Special Guardianship Allowance and explain this at the earliest stage possible.

17. Financial support is only payable in certain circumstances including where the council considers it is appropriate to contribute to the legal costs of making an Special Guardianship Order.
18. Where the Special Guardian was previously the child’s foster carer, the council can continue to pay the fostering allowance at the same rate they received when fostering. This applies for a transitional period of two years, or longer if it considers it appropriate. The aim is to give the family time to adjust to their new circumstances.
19. Where a council carries out an assessment of a Special Guardian's need for financial support it must take account of:

• other benefits available to the Special Guardian or child;
• the Special Guardian's financial resources, including any tax credit or benefit available if the child lived with them;
• their income and outgoings; and
• the financial needs and resources of the child.

20. This is known as means testing.
21. Councils must review the financial support they pay the Special Guardian every year and when there is a relevant change in their or the child's circumstances. If as a result of a review the council proposes to reduce or end financial support it must allow the Special Guardian to make representations.
22. The Guidance suggests that when carrying out a means test, councils may wish to use the non-statutory Government guidance, the ‘Standardised Means Test Model for Adoption and Special Guardianship Financial Support’. The Council has confirmed it uses this model when carrying out Special Guardianship Order financial assessments.
23. The suggested Standardised Means Test Model involves calculating the family's income and then discounting 20% of that income.
24. After deciding to provide support services, councils must give notice of the decision to the Special Guardian, including reasons for it. Where it is to provide financial support, the notice must contain information about:

• the method used to decide the amount of financial support;
• the method of payment, frequency, period it covers and when it will begin;
• whether it is subject to conditions;
• the arrangement and procedure for review, variation and termination; and
• the council's and Special Guardian's respective responsibilities.

25. Councils must prepare a Special Guardian Support Plan, to be kept under review. The Plan should set out the services to be provided, the objectives, the timescales for provision, procedures for review and who will monitor the provision of the services in the Plan. The Plan should be written in a way that everybody affected can understand. Councils must share a draft of the Plan with the Special Guardian and must consider the Special Guardian's representations before they finalise the Plan. They must also consult the Special Guardian about any revision of the Plan.
26. The Council’s Special Guardianship Policy (“the Policy”) includes the key legal provisions set out above.

Children Act 1989, section 20

27. The Children Act 1989, section 20, states councils have a duty to provide accommodation to any child in need in their area who requires it as a result of:

• there being no person who has parental responsibility for the child;
• his/her being lost or having been abandoned; or
• the person who has been caring for the child being prevented (whether or not permanently, and for whatever reason) from providing the child with suitable accommodation or care.

28. Where accommodation is provided under section 20, the arrangement is a voluntary one. A local authority may not provide accommodation under this section for any child if any person who has parental responsibility for that child and is willing and able to provide accommodation for them (or arrange for accommodation to be provided for them) objects to that arrangement. Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.

Key facts

29. Miss X is the paternal grandmother of Child B and Child C. In December 2016, Child B and Child C went to live with Miss X because their parents were unable to look after them properly. This was a voluntary arrangement made under the Children Act 1989, section 20.
30. Miss X became a “friends and family foster carer” and received a fostering allowance of approximately £500 per week for both children from the Council. Included within this payment was an additional “professional fee” on top of the maintenance allowance.
31. It soon became apparent the children were not going to return to the care of their parents. The Council started to explore long term care options. While Miss X wanted to be considered, she was concerned about how she would manage financially because she was not able to work full time since taking on her two grandchildren as well as her own son. She made this clear to the Council.
32. The Council wanted the arrangement to be formalised by way of a Special Guardianship Order (“SGO”). Miss X’s stated preference was for the current arrangement to continue, not an SGO. The Council agreed to fund independent legal advice about the options available to Miss X.
33. In March 2017, during a statutory home visit to review the placement, a social worker explained to Miss X that her financial support would remain the same for two years but would then revert to a means tested allowance. The social worker recorded in her notes that Miss X was not previously aware of this.
34. The Council also carried out a “dummy run” financial assessment, setting out what she would receive after two years under the Council’s SGO policy. She was told it would be £143 per week for both children.
35. In May 2017, Miss X became their Special Guardian appointed by the court. Miss X was a party to these proceedings and legally represented. At the time, it was Miss X’s understanding that her lawyer was funded by Legal Aid.
36. In February 2018, the Council wrote to Miss X saying it had made a mistake in continuing to pay the professional fee after she became Special Guardian and by not deducting child benefit. But as it had no record of telling Mrs X, it agreed to write this off.
37. The letter also informed Miss X that from May 2019, after the two-year anniversary of the court order having been made, the SGO payments would be means tested.
38. In April 2019, Miss X was asked by the Council to complete a financial assessment. As a result of this assessment, in June 2019 she was told the allowance would be £136 per week for both children.
39. In June 2019, Miss X lodged a formal complaint.
40. She complained about:

• The drastic reduction in financial support.
• Poor response by staff to her enquiries.
• Failure to review the SGO support plan since the Order was made in May 2017.
• Lack of accurate and consistent written information about financial support from the start.
• Failure to provide a breakdown of the financial assessment.
• Failure to provide notice of change of payments.
• Failure to provide SGO allowance in line with fostering allowance.
• Failure to fund legal costs.

41. In July 2019, her request for additional funding was considered by the Council’s funding panel. The minutes record the chair of the panel said that “legal advice needs to be taken” and that “a full breakdown of her financial assessment is needed. The assessment needs to be looked at in terms of how the figures were deduced”. The decision was recorded as, “Workers to advise Miss X that we are in the process of reviewing the allowance across the board”.
42. In August 2019, the Council wrote to Miss X, confirming what she had been told in June 2019. The letter did not refer to any of the matters referred to in Miss X’s complaint and her request for additional help because of her individual circumstances, including the costs of caring for her young son.
43. In a separate letter, also in August 2019, the Council responded to her complaint. It apologised for the delay in responding. The Council explained the matter had been considered by its funding panel and, “the panel did not see any grounds to reinstate the additional element that was agreed for two years only”.
44. Miss X requested her complaint be considered at stage two. She informed the Council that the initial response did not address all of her complaint which included complaints about two specific officers. She also wanted to expand this complaint to include the author of the stage one response and her delay in replying
45. The Council’s response stated that having spoken to the service area and complaints officer that her complaint would not be taken any further because “there is no further evidence that the outcome would change after a further investigation in to your complaint”. She was advised of her right to complain to the Ombudsman which she did.
46. She continued to contact officers with evidence of her financial hardship, including utility bills and her legal costs. The Council did not reply.

Analysis

47. I will consider each of Miss X’s specific complaints in turn.

Failure to provide advice about financial support in her role as Special Guardian

48. Miss X is unhappy about the Council’s decision to reduce the financial support from approximately £500 per week down to £136 for both children. She says this drop in income has had a significant impact on their quality of life.
49. The case records show that from the start, Miss X had a number of candid conversations with Council officers about her concerns over how she would manage financially. She had to give up her full time job to care for them and without the fostering allowance she would be significantly financially disadvantaged. She was strongly in favour of the girls saying in local authority care, partly for financial reasons, as well as for the other additional support she felt they would benefit from. This went against the professional opinion that it was in the girls’ best interest to leave the care system.
50. The Ombudsman would expect to see any prospective Special Guardian being provided with support and guidance so they could make a properly informed decision about how to proceed.
51. The records show Miss X was told how much money she would receive under an SGO. A case record from 8 March 2017 states Miss X was told funding would stay the same for two years post SGO but that “Miss X was not aware of this”. The Council carried also out a “dummy run” SGO financial assessment so Miss X could see what she would be entitled to receive in future. This was recorded as £143 per week.
52. In addition to this the Council paid for Miss X to see a solicitor of her choice to obtain advice about her options. Having received this advice, Miss X agreed to be assessed as a Special Guardian.
53. The SGO plan states that fostering fees (minus professional fees) will continue to be paid for two years, after which time a means test would apply.
54. The case records evidence that Miss X was made aware that the enhanced fostering rates were time limited and the SGO allowance was much less. She was told this before the arrangement was approved by the Court.
55. But any verbal information should have been followed up in writing. This would have avoided much of what happened since. It is entirely possible that when the social worker told Miss X that the standard SGO allowance was £143 she would have thought this was per child. In any event, the figure of £143 was incorrect, because it was actually £136.
56. In addition to this, Miss X was reassured by the Guardian’s comments in the SGO plan that the financial situation would be reviewed. But this did not happen (see paragraph 76 below).
57. Because of the failure to provide any written information, and what information that was given was incorrect and not reviewed, I find the Council to be at fault here.

Amount of standard SGO allowance

58. Under the statutory guidance the basic principle is that a council should start with the fostering allowance, then make whatever means-tested reductions and adjustments that are appropriate. If a council wants to depart from the general approach set out in the guidance it needs clear reasons for doing so.
59. In Miss X’s case she was paid a standard SGO allowance of £86 less child benefit for each child.
60. The relevant local fostering allowance was £147. This is what Miss X reasonably expected to be what she would be entitled to receive (subject to means testing) once the two year transition period ended. This does not include the additional professional fee that Miss X knew she would not be entitled to.
61. The Council’s standard SGO payment is significantly lower that the what the statutory guidance envisages. I have not been provided with an explanation for this.
62. Although Miss X submitted details of her income and expenditure, the Council did not carry out a means test as recommended by government guidance and its own policy. This is because Miss X received Child Tax Credit and was therefore entitled to receive the standard allowance minus child benefit. I have found no reference to this alternative methodology, or any rationale for it, in the Council’s policy.
63. To further add to the confusion, the internal SGO Proposal Form I have been shown was only partially completed. Only one paragraph was completed that said, “Miss X is asking for fostering rates to continue as without this they would not be able to afford their current lifestyle. She has not cited any particular needs with the children. Miss X works 2 days a week. The children are in nursery full time as well as after school clubs. Miss X states she needs money for this. The youngest child will start full time nursery/school in September but Miss X states she still requires money for after school clubs.”
64. I have read the initial letter Miss X sent to the officer who wrote this. She explained the areas of expenditure she would struggle to pay for. These included:

• Birthdays and Christmas
• School trips
• Emergencies
• Clothing
• Home improvements
• Covering unpaid leave to care for unwell children
• Her significant drop in income as a result of only being able to work part time
• Care for her own school age son. It was important for him not to suffer as a result of her taking on care of her granddaughters

65. Miss X asked for an explanation for the significant reduction as well as a breakdown as to how the calculation of the allowance had been arrived at.
66. In response she was only told she was entitled to receive the whole allowance minus child benefit.
67. But the issue for me here is that the standard allowance is wrong because it is out of line with the statutory guidance. This is what Miss X says she tried to explain to officers but fell on deaf ears. Similarly, my own enquiries about the level of standard SGO allowance being below the fostering rates has not alerted the Council to a possible issue here.
68. If the Council wanted to deviate from statutory guidance, I would expect the Council to be:
1. Aware of the expectations of the statutory guidance and that its payments are significantly below fostering allowances.
2. Able to provide an explanation as to the rationale for deviating from it.
69. Neither has been happened here.
70. On the evidence I have before me, the Council’s payments are at odds with the statutory guidance and the principles established in caselaw and no explanation has been put forward to justify this. Without a cogent rationale for this, the Council is at fault.
71. This raises a wider concern that other Special Guardians in the Council area have been similarly affected. My proposed remedy below seeks to address this.

Failure to reimburse her legal costs incurred during SGO court application

72. The Council’s policy (which echos the statutory guidance) states that the Council can consider paying legal costs involved in the SGO application. Miss X says she was advised by the children’s Guardian and social workers that she should be represented in court. She says there was no discussion about how this should be funded. She was led to believe by her solicitor that she was entitled to Legal Aid.
73. While initially this was correct, Miss X has since been billed for approximately £1600 because she was found to be ineligible for Legal Aid. Miss X sent this information to the Council, but the Council has not acknowledged or responded to it.
74. In response to my enquiry about this, the Council stated it had paid the costs of her initial legal advice.
75. But this was not the question either Miss X nor the Ombudsman asked. Miss X was legally represented, and the Council policy allows for the Council to consider paying these costs. So far, I can see no evidence the Council has done so, even when prompted by the Ombudsman. This is fault.
76. While I am aware the policy does not oblige the Council to pay such costs, only to consider doing so, my remedy below seeks to address the overall fault in this case, including the Council continuing to ignore this request through its complaint handling.

Failure to review SGO support plan

77. The SGO Support Plan was completed in May 2017 and was considered by the court when it granted the SGO is Miss X’s favour.
78. Also, before the Court was a report by the children’s Guardian. This said “…The local authority also agreed to fund three days nursery fees for the children, but clarity is required how many days will be funded and how long this will be. Miss X will also receive a special guardianship allowance but this still requires further assessment of as Miss X’s working arrangements are now confirmed. I propose the Local Authority update the SG Support plan to include the correct and updated information and updated financial assessment.”
79. The plan has not been reviewed since. It should have been reviewed at the very least annually, or much earlier if the Council had complied with the recommendation of the children’s Guardian.
80. This is fault.

Complaint handling

81. Miss X lodged her formal complaint on 26 June 2019. The Council responded on 8 August 2019. The Council’s policy states a response should be provided within 21 days. The response was therefore late.
82. The initial complaint response did not address many aspects of Miss X’s complaint. She told the Council so when she asked for her complaint to be escalated to stage two.
83. Again, she was ignored.
84. In response to my enquiry about this the Council said, “We are sorry that Miss X feels we did not take into consideration all aspects of her complaint, however we understood that Miss X’s concerns related primarily to her funding issues”.
85. The fact is the Council did not “take into consideration all aspects of her complaint”, regardless of how Miss X felt about it. Miss X made it absolutely clear in her request to go to stage two what she was complaining about and it was not just about the funding issue. She raised the issue of her legal costs which as just ignored.
86. Because of this I can see no justification for the Council’s refusal to escalate the complaint to stage two. This is fault.

Conclusion

87. In November 2013, we published our focus report, “Family Values: Council services to family and friends who care for others’ children”. The Ombudsman published a further Focus Report ‘Firm foundations: council support and advice for special guardians’ in May 2018. These were necessary because we were finding carers, including those in receipt of Special Guardianship Allowance, were being treated unfairly and were not receiving the support to which they were entitled. One of the case studies involved a systemic failure to pay correct rates of Special Guardianship Allowances. The focus report appears to have fallen on deaf ears: this decision highlights continuing systemic problems which affect not just Miss X, but potentially others in receipt of Special Guardianship Allowances from the Council. My proposed remedy (below) seeks to address this potential wider fault.
88. My investigation has found that the Council failed to meet these standards in this case.

Agreed action

89. To remedy the injustices identified in this decision statement, the Council has agreed to take the following action within three months from the date of this decision statement:

• apologise in writing to Miss X for the faults I have identified;
• calculate and backdate to May 2018 (the date of publication of our most recent focus report) all Special Guardianship Allowance payments for which Miss X was eligible, based on the fostering rate relevant at the time and children’s ages;
• Reimburse half of Miss X’s legal costs. While the Council’s policy only obliged it to consider paying these costs, I considered it appropriate for it to make a significant contribution to acknowledge the wider fault in this case;
• Pay Miss X £500 to acknowledge the distress she has been caused by the Council’s failure to properly handle this matter as well as the time and trouble she has spent pursuing her complaint about this;
• reconsider its policy for Special Guardianship Allowances in light of the statutory guidance, caselaw and our focus reports;
• identify all other Special Guardians affected by this fault since May 2018;
• make backdated payments to those special guardians, calculated using the reconsidered policy; and
• provide the Ombudsman with a report setting out what action it has taken in respect of other affected Special Guardians.

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Final decision

90. There was fault by the Council which caused injustice to Miss X and potentially other Special Guardians in the Council’s area. The Council has agreed to take the action set out above to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman