Summary: Mrs F complains about the Council’s actions in relation to her application for special guardianship. The Ombudsman has found fault by the Council which caused injustice. The Council has agreed to make a payment to Mrs F and properly consider her requests for financial support.

The complaint

1. Mrs F complains the Council:
1. failed to safeguard and support her niece, J, whilst she lived with her birth mother, causing Mrs F to have to start caring for J in September 2016 to prevent her being taken into care
2. delayed carrying out a special guardianship assessment in 2017, causing the order by the Court to be delayed
3. failed to properly consider her requests for financial support for home adaptations, legal costs and periodic payments under s17 of the Children Act 1989
4. failed to provide adequate financial and direct support, causing financial hardship and for her to be in debt
5. failed to deal with her complaint in line with the statutory procedures, causing her time and trouble

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 spoke to Mrs F about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Children Act 1989
• The Adoption and Children Act 2002
• The Special Guardianship Regulations 2005 and The Special Guardianship (Amendment) Regulations 2016 (“the Regulations”)
• Statutory Guidance: Special guardianship
• HM Courts guidance: Special Guardianship: A guide for family and court users
• The Ombudsman’s focus report: Firm foundations: complaints about council support and advice for special guardians
• Statutory Guidance: Getting the best from complaints
7. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special guardianship

8. A Special Guardianship Order (SGO) is a legal order which gives the applicant some, but not all, parental responsibility for a child until they are 18 years old. The Regulations say a relative of the child may apply to the court for an SGO if the child has resided with them for at least one year immediately pre-dating an application.
9. If a person wishes to apply for an SGO, they must inform the Council in writing of their intention to apply three months before submitting their application to the court. The council must then investigate and prepare a report to the court about their suitability to be a special guardian.
10. Where the local authority has received notice from an applicant, it should send written information about the steps it proposes to undertake in preparing the report to the prospective special guardian and the parents of the child in question. This should include information about special guardianship support services and how to request an assessment of needs for these support services.

Financial support for special guardians

11. Councils must help meet the needs of special guardians in their area. This can include offering financial support, counselling, advice, and information. Government guidance says special guardianship arrangements should not fail just because of financial problems.
12. The Regulations explain when councils can pay support to a special guardian or prospective special guardian. This includes where the local authority consider that it is appropriate to contribute to:
• any legal costs, including court fees, and
• the expenditure necessary for the purpose of accommodating and maintaining the child, including the provision of furniture and domestic equipment, alterations to and adaptations of the home, provision of means of transport, and provision of clothing, toys and other items necessary for the purpose of looking after the child.
13. The Regulations say councils must consider other benefits available to the guardian and child, the guardian's financial resources, the amount of money they realistically need and the child's financial needs and resources. It is for the council to decide whether to make any payments, based on its understanding of the situation.

Children’s social care statutory complaints procedure

14. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review panel to be held.
15. The regulations place a duty on the local authority to act promptly to ensure the complaint is dealt with as swiftly as possible. Getting the best from complaints says the stage 2 investigation should take a maximum of 65 working days.
16. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

Background

17. Mrs F is J’s paternal aunt. J was living with her father and stepmother until he sadly passed away in 2015. J’s stepmother obtained a child arrangement order from the court and J continued to live with her. Their relationship broke down and J went to live with her birth mother (Ms P) in 2016.
18. Mrs F says Ms P could not care for J and asked Mrs F to take her. J initially lived with Mrs F for part of the week, but from September 2016 lived with Mrs F full-time. Mrs F spoke to J’s school; she says it contacted the Council.
19. In March 2017, the Council visited Mrs F to discuss an unrelated matter. It found Mrs F had no legal basis for caring for J. The social worker advised Mrs F to seek legal advice to discuss her options to secure permanency for J. He carried out a child and family assessment under section 17 of the Children Act 1989 which concluded in April 2017 that J was not a child in need and there was no need for social worker involvement.

Mrs F’s application for special guardianship

20. Mrs F sought legal advice and emailed the Council on 13 April 2017 giving three months’ notice of her intention to apply for an SGO from 3 April 2017 (when she had told the social worker she had decided to apply). She asked the Council to pay her legal costs.
21. I have seen no evidence the Council wrote to Mrs F about the steps it would take to prepare a report for court, or to provide information about special guardianship support services and how to request an assessment of needs for those services.
22. The Council started the SGO assessment on 12 May 2017. The social worker visited Mrs F and they discussed her options for caring for J. In June the Council said the assessment should be finished by the end of July.
23. Mrs F’s solicitor emailed the Council on 17 July 2017. She complained the Council had not yet agreed to pay Mrs F’s legal costs. Her letter also said Mrs F’s SGO application was caused by the Council’s failure to meet J’s needs, as it had placed J with Ms P without support, and “left her without anyone” when that relationship broke down. The solicitor asked for the letter to be considered as a formal complaint.
24. The Council completed the SGO assessment on 28 August 2017. It gave Mrs F a copy and replied to her on 5 September 2017 to say it had discussed her request for funding with its legal team and it would not pay her legal costs, other than the SGO application fee.
25. Mrs F was unhappy with the SGO assessment. Her solicitor wrote to the Council on 28 September 2017. She said there had been a delay in producing the assessment, which contained errors and was misleading and incomplete. She said it did not provide enough detail about why J had had to move in with Mrs F, which in Mrs F’s view was because of the Council’s failure to provide support to J in 2016. The solicitor said Mrs F could not apply for an SGO until the Council’s assessment had been properly completed.
26. The solicitor said caring for J had had a devastating financial impact on Mrs F. J had “come with nothing", Mrs F had to fund all of her clothes, toys, school uniform and bedding at a time when she had to reduce her working hours by 50% in order to meet J's needs. The solicitor asked the Council to backdate any SGO allowance to April 2017, pay £150 per week in the meantime to meet J's needs, and to consider assisting Mrs F with the cost of creating a bedroom for J.
27. I have seen no evidence the Council considered whether to pay these costs or replied to Mrs F or the solicitor.
28. There was a problem with Mrs F’s tax credits in October 2017, resulting in them being stopped for nine weeks. Mrs F asked the Council for financial support. There is evidence the Council referred her to its local assistance scheme and wrote to the HMRC in support of her case. The local assistance scheme gave Mrs F some food vouchers.
29. Mrs F applied to the court for an SGO on 3 November 2017. The court granted the SGO in March 2018. The Council started to pay Mrs F a weekly SGO allowance of £200.03.

Mrs F’s complaint

30. In April 2018 Mrs F complained to the Ombudsman. We asked the Council to consider Mrs F’s complaint at stage 2 of the statutory procedure in October 2018. The Council appointed an independent investigating officer and an independent person. The investigating officer agreed a complaint statement with Mrs F on 29 November 2018.
31. In February 2019, the Council told Mrs F the investigation would be delayed due to a re-structure causing staff to not be available for interview. Mrs F said she was considering instructing a solicitor. The investigating officer advised Mrs F that appointing a solicitor may close the complaints process. The staff were interviewed in April 2019.
32. The investigating officer stood down on 30 May 2019 following correspondence with Mrs F’s solicitor which she considered offensive. The Council appointed a second reviewing officer to complete the investigation and the stage 2 report was issued on 19 July 2019. The report upheld one of Mrs F’s complaints and partially upheld two others. It found there had been a three month delay in completing the SGO assessment.
33. The Council wrote to Mrs F on 4 October 2019. It accepted the report’s findings, apologised and offered Mrs F £3,982. This was broken down as £450 for the time, trouble and distress caused by the delay in dealing with the complaint; £250 towards Mrs F’s legal costs and three months’ SGO allowance of £3,282.42.
34. Mrs F remained dissatisfied and requested a stage 3 review panel. This was arranged but then cancelled as Mrs F said the Council would not allow her to bring a representative to the meeting.
35. In response to my enquiries, the Council said the review panel chair had confirmed on 20 November 2019 that the solicitor could attend. There had then been a dispute about the information Mrs F would be provided prior to the panel meeting and the deadline for her submission to the panel. This had led to Mrs F asking for an early referral to the Ombudsman in November 2019. The length of our investigation was affected by the coronavirus pandemic.

My findings

36. If a council has investigated something under the statutory children’s complaint procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. I have therefore firstly considered whether there was any fault in the way the Council dealt with Mrs F's complaint.

Complaint handling

37. There was significant delay in the Council’s handling of Mrs F’s complaint. The letter from Mrs F’s solicitor of 17 July 2017 was dealt with by the Council’s legal team and not as a complaint. I find this was fault, as the solicitor explicitly asked for it to be considered as a formal complaint.
38. Although it was not clear from the letter what all the complaint issues were, the Council should have at this point agreed a complaint statement with Mrs F and dealt with it under the statutory procedure. Instead she had to approach the Ombudsman in early 2018 to progress the complaint.
39. There was further delay from October 2018 to May 2019. Once the complaint statement was agreed, the stage 2 report should have been completed in 65 working days, i.e. by 28 February 2019. It was not, which is fault. After the investigating officer stood down in May 2019, the Council recruited an internal reviewing officer in agreement with Mrs F and the report was completed on 19 July 2019. The process was not completed until December 2019.
40. I find that if the Council had dealt with the solicitor’s letter as a complaint in July 2017, the complaint process should have been completed by the end of February 2018, so there was a delay of about 22 months.
41. Mrs F complained the Council refused to allow her to take a representative to the stage 3 review panel. Although the Council initially expressed concern at Mrs F's solicitor attending, the panel chair agreed to it. Mrs F asked for information to be provided by the Council before the panel was held, but this is not a requirement of the complaints process. There is evidence 10 days’ notice was given to Mrs F of the meeting in line with the guidance. I do not find fault in the arrangements for the panel.
42. Although I have found delay, I have found no fault in the independent investigation itself.
43. Both investigators had had no previous involvement with the matter. The investigation took account of evidence from a range of sources and addressed each of the complaints. The report shows the investigator weighed the evidence and drew objective conclusions from it. The report is comprehensive and makes relevant recommendations. The investigation was overseen by an independent person. Having considered all the information available to me, I find the investigation was carried out in line with the guidance.
44. I have therefore not re-investigated the whole matter. Instead I have looked at whether the Council properly considered the findings and recommendations of the stage 2 report. I have also considered whether there was any fault or injustice that has not been identified or remedied. I consider each element of Mrs F’s complaint separately below.

a) failed to safeguard and support her niece, J, whilst she lived with her birth mother, causing Mrs F to have to start caring for J in September 2016 to prevent her being taken into care

45. The stage 2 report did not uphold his complaint as there was no evidence the Council had placed J with Ms P. Although Mrs F said the school had made a referral to the Council in September 2016, the independent investigator found no evidence this referral had been received.
46. I agree with the independent investigator’s findings. Mrs F says there was no private family arrangement and the Council had a duty to accommodate J under section 20 of the Children Act 1989. But I have seen no evidence the Council was involved in J’s placement with Ms P or Mrs F prior to March 2017. When the Council became aware J was living with Mrs F it assessed her under section 17 of the Children Act 1989 and determined she was not a child in need. It therefore had no duty to accommodate her, or to place her with Mrs F as a family foster career.
47. In response to my draft decision, Mrs F sent a council email from December 2019 which says, “The original assessment was completed by [social worker]. This assessment was the basis for the decision of J being Child in Need.” The email is ambiguous; it is not clear which assessment is being referred to and I cannot disregard the section 17 assessment I have seen from April 2017 which found J was not a child in need.
48. Mrs F says J had to come to live with her as the Council had failed to meet her needs in 2016. It would have been for Ms P to ask the Council to assess J to see if she was a child in need requiring support, but there is no evidence she did so. I have found no fault by the Council.

b) delayed carrying out a special guardianship assessment in 2017, causing the order by the Court to be delayed

49. Mrs F says the Council’s delay in completing an SGO assessment prevented her from applying for the SGO and therefore caused a delay in the SGO allowance being paid. This was upheld by the investigating officer, who found a three month delay. I do not agree with this finding.
50. The Regulations require a prospective special guardian to give a council three months’ notice of their intention to apply for an SGO. This is not a three month deadline for the completion of an SGO assessment. The Children Act 1989 sets no deadline for the completion of the report. Once the court receives the application, it sets a deadline for receipt of the Councils’ report at the initial hearing. is therefore there was no fault by the Council when it completed the assessment by the end of August 2017, before Mrs F applied for the SGO.
51. However, the stage 2 report was wrong to say the Council did not need to start the assessment until instructed by the court. The Regulations say the Council should start as soon as it receives the notice from the applicant.
52. Mrs F’s solicitor said because they were unhappy with the assessment, the SGO application could not be made. This was wrong. The Council was not required to ensure Mrs F agreed with the assessment. Any disagreements Mrs F had with the assessment could have been presented to the court. And Mrs F was not required to provide the assessment to the court before she applied for the SGO.
53. However, even if there was delay in the assessment being completed, this did not cause injustice to Mrs F. This is because she could not have applied for an SGO until September 2017 because J had not been living with her full-time for at least a year until then.
54. There was fault by the Council when it received Mrs F’s notice on 13 April 2017 as there is no evidence it wrote to her with the information it should have provided about the SGO assessment process. This was not in line with the Regulations. I consider this fault caused the later confusion about the process and deadlines.
55. If Mrs F had applied to the court in September 2017 (having given notice to the Council three months earlier) the SGO could have been granted by January 2018. Mrs F did not apply until November 2017. Whilst Mrs F’s solicitor should have advised her she could apply sooner, on balance I find the Council’s fault caused confusion and resulted in Mrs F’s delayed application.

c) failed to properly consider her requests for financial support for home adaptations, legal costs and periodic payments under s17 of the Children Act 1989; and

d) failed to provide adequate financial and direct support, causing financial hardship and for her to be in debt

56. The stage 2 report did not uphold this complaint. I do not agree with this finding.
57. The Regulations say the Council may make payments to a prospective special guardian, but it is not required to do so, it is entitled to decide not to make these payments. 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. I have therefore considered how the Council decided not to pay the legal costs or other financial support.
58. The Council wrote to Mrs F on 5 September 2017 explaining that after discussion with its legal team it had decided not to pay the legal costs, other than the application fee. However, I have seen no evidence of how it reached this decision and what information it took into account in deciding this.
59. Mrs F's solicitor asked the Council to fund housing adaptations and to make interim payments to Mrs F in September 2017 to meet J’s needs. I have seen no evidence the Council considered this request or that it replied to Mrs F about it. The Regulations say councils must consider other benefits available to the guardian and child, the guardian's financial resources, the amount of money they realistically need and the child's financial needs and resources. I have seen no evidence the Council did so.
60. I therefore find there was fault in the way the Council decided not to pay the legal fees and provide financial support for housing adaptations and other costs.
61. I cannot say that the Council would have decided to make the payments, but I consider the fault causes Mrs F uncertainty as she does not know whether the payments would have been made had the Council properly considered the requests.
62. When Mrs F's benefits were stopped in October 2017, I have seen that the Council referred Mrs F for some financial assistance. I find there was no fault by the Council. It could not provide support under Section 17 of the Children Act 1989 as J was not a child in need.
63. In response to my draft decision, Mrs F said the SGO allowance she receives has been wrongly calculated. She says she receives £200 per week, but the rate should be £245 per week. Mrs F’s complaint to the Ombudsman about inadequate financial support related to the period in October 2017 when her tax credits were stopped. I have therefore not investigated how the SGO allowance was calculated and I cannot say whether or not it is correct.

Conclusion

64. I have found there was a significant delay in complaint handling, a failure to provide information to Mrs F about the SGO process in April 2017, and a failure to properly consider her requests for financial support. These faults have caused injustice to Mrs F in the form of distress, time and trouble, and uncertainty. They also caused her to delay her SGO application and her request for financial support has not been properly considered. I note the Council has already apologised to Mrs F.

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Agreed action

65. Within six weeks of my final decision, the Council has agreed to:
1. Pay Mrs F £450 for the time, trouble and distress caused by the delay in dealing with the complaint.
2. Pay her £250 to acknowledge the uncertainty caused by the failure to properly consider her request for financial support.
3. Pay her £3,282.03 as SGO allowance she missed out on due to the delay in her application caused by the Council’s fault.
4. Re-consider Mrs F’s request for funding of her legal costs related to her application for an SGO, ensuring it takes into account the matters set out in the Regulations.
5. Consider Mrs F’s request for funding of expenditure necessary for the purpose of accommodating and maintaining J from April 2017 to February 2018, including the provision of furniture and domestic equipment, alterations to and adaptations of the home, provision of means of transport, and provision of clothing, toys and other items necessary for the purpose of looking after her, ensuring it takes into account the matters set out in the Regulations.
6. Provide an update to the Ombudsman to show how it has considered these requests.

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Final decision

66. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman