Decision : Upheld
Decision date : 09 Mar 2020
The Ombudsman's final decision:
Summary: Mr and Mrs G question the Council’s recalculation of a special guardianship allowance paid to Mrs G for the care of her grandson. We find some fault in the consideration given by the Council to parts of the recalculation. This caused some uncertainty for Mrs G. We have completed the investigation as the Council has now offered a remedy to the complaint which will provide for a satisfactory outcome.
- I have called the complainants ‘Mr and Mrs G’. Their complaint concerns the Council’s remedy of an earlier complaint made to the Ombudsman. They question the Council’s recalculation of a special guardianship allowance paid to Mrs G for the care of her grandson ‘Child X’. In particular:
- Why the Council retrospectively reduced the allowance paid to Mrs G between January and April 2017.
- Why the Council has not allowed for birthday and festive allowances which are paid to foster carers.
- Mr and Mrs G say as a result they do not know if the Council has now correctly paid special guardianship allowance to Mrs G.
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
- Before issuing this decision statement I considered:
- Mr and Mrs G’s complaint in writing to this office and further information provided in telephone conversations and emails.
- Information provided by the Council in response to written enquiries.
- Previous decisions taken by us considering earlier complaints made to us by Mr and Mrs G and relevant to this complaint also.
- Relevant law and guidance as referred to in the text below.
- I also gave both Mr and Mrs G and the Council an opportunity to comment on a draft decision statement setting out my thinking about the complaint. Both confirmed they were satisfied with the content of the draft decision statement.
- 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
- Mrs G is Child X’s parental grandmother. She lives outside the Council’s area. Mr and Mrs G keep separate houses, with Mr G living around 200 miles from Mrs G. Mrs G works one evening a week and at weekends.
- Child X has a diagnosis of autism, a learning disability, mental health issues, attention deficit hyperactivity disorder (ADHD) and an attachment disorder. These contribute to Child X displaying behavioural issues with episodes of self-harming, smearing, violent outbursts of temper towards people and property and so on. Because of his mental illness, Child X receives disability living allowance, a non-means tested benefit, at the highest rate for support with his care and at a low rate for support with his mobility needs.
- Previous investigations by this office have found:
- Child X entered Mrs G’s care as a looked after child.
- The Council failed to pay Mrs G enough financial support for the period July 2015 to November 2016 when she acted as a family and friends foster carer.
- The Council failed to pay Mrs G enough financial support for the period after January 2017 when she was Child X’s special guardian.
- Our most recent decision on a complaint made by Mrs G (March 2019) found the Council had partially remedied these faults. But we remained dissatisfied with its consideration of the financial support paid to Mrs G as a special guardian. The Council agreed to a further reconsideration of Mrs G’s special guardianship allowance taking account of:
- Child X’s disabilities and disability benefits paid in respect of those. We did not consider the Council properly took account of Special Guardianship Regulations which require it to take account of the needs of children who have disabilities.
- Childcare costs Mrs G incurred which Regulations allow the Council to take account of when paying special guardianship allowance.
- Costs incurred in facilitating contact between Child X and his birth family.
The current complaint
- The Council completed its consideration of all these matters by November 2019. It sent Mrs G an updated support plan setting out the financial support it would provide. This included revised amounts to cover childcare and to facilitate contact. The Council also recalculated the special guardianship allowance paid to Mrs G this time disregarding some of the disability payments Child X receives on account of his needs. The net impact of these changes meant in September 2019 the Council paid over £5000 to Mrs G to cover allowance previously underpaid and for contact visits previously arranged.
- While welcoming these reassessments Mr and Mrs G still had those concerns listed in paragraph 1. On the first point, while the recalculation of Mrs G’s special guardianship allowance had resulted in a net underpayment to her; the detailed calculation showed the Council had offset this against an overpayment for the period January to April 2017. It did this after receiving new information from Mrs G suggesting her wages at that time were higher than it had previously understood (the allowance being means tested).
- On the second point the Council said that while it based special guardianship allowance on foster care payments it did not consider birthday and festive payments as “enhancements”. It explained that it expected special guardians would provide gifts at holiday times.
Our enquiries and the Council’s response
- We made enquiries of the Council to further understand its position on these matters. In doing so we noted:
- The Council’s written policy: “Special Guardianship – Financial Support” says that maximum payments for special guardians are “based on 100% of fostering allowances”. Its website also contained a “table of allowances” made to foster carers. This described four elements – a basic fostering allowance, a fostering supplement, a birthday allowance and a festive allowance.
- The same policy also referred to circumstances where a special guardian previously fostered a child and “received an element of renumeration in the allowance paid to them”. It said the Council may continue to pay that “element of renumeration for two years from the date of the special guardianship procedure” (I took this as a reference to the date of the special guardianship order). I asked the Council how it applied this policy to former family and friends foster carers such as Mrs G.
- In reply the Council said that it recognised its policy in respect of both areas could be clearer. It said it was now undertaking a full review of its policy towards family and friends foster carers which would address these matters, along with certain other matters.
- In the meantime, the Council wished to offer a remedy to Mr and Mrs G’s complaint. It proposed this would involve:
- The Council recalculating the special guardianship allowance paid to Mrs G for the first two years of the special guardianship order on a non means-tested basis. It would base its award on its fostering allowance less child benefit only (a benefit payable to special guardians but not foster carers).
- It would pay birthday and festivity allowances to Mrs G for this two-year period also.
- I consider the Council has offered a fair remedy to the complaint. I consider it was at fault for not providing sufficient explanation to explain why it did not pay birthday and festive allowances to Mrs G as part of her special guardian allowance. Also, for not considering if it should have non means-tested Mrs G’s special guardianship allowance for two years. I consider these faults caused Mrs G some unnecessary uncertainty about whether the payments made to her were correct.
- However, I could not say the Council was necessarily obliged to do either. I could only recommend it consider making these additional payments. So, the Council’s offer to go beyond this and re-assess the special guardianship payments again, giving the benefit of both considerations to Mrs G, is more than I could achieve through continued investigation. It will provide a financial payment to Mrs G greater than anything I would have recommended for the uncertainty caused to her.
- The Council’s offer also removes any need for me to consider in further detail its initial reassessment of Mrs G’s special guardianship allowance between January and April 2017.
- The Council has agreed to remedy this complaint, it will therefore carry out the steps outlined in paragraph 17 within 20 working days of this decision.
- For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mrs G. The Council has made an offer to remedy this complaint which I endorse as I consider it will provide a fair outcome to the complaint. So, I have completed my investigation satisfied with its response.
Investigator's decision on behalf of the Ombudsman