Summary: Mr X complains about the way the Council handled his Special Guardianship Allowance and his complaint. He says this caused stress and anxiety, had a significant financial impact on him, and cost him time and trouble. The Ombudsman finds fault with the Council for failing to increase Mr X’s Special Guardianship Allowance and for failing to carry out annual financial reviews. This caused Mr X injustice. The Ombudsman is satisfied that the Council has remedied the injustice caused to Mr X and implemented appropriate service improvements. The Ombudsman does not find the Council at fault for the other parts of Mr X’s complaint.

The complaint

1. The complainant, who I refer to here as Mr X, complains about the way the Council handled his Special Guardianship Allowance. He complains that the Council:
1. failed to increase his Special Guardianship Allowance payments between 2013 and 2019;
2. failed to carry out financial reviews;
3. failed to take in account his personal circumstances when it calculated his Special Guardianship Allowance;
4. said clothing allowance should only be paid once, but he believes it should be paid annually; and,
5. handled his complaint poorly.
2. Mr X says this had a significant financial impact on his ability to care for his brother, caused him stress and anxiety, and cost him time and trouble. He says it also had an impact on his further education because it took up all his time.

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What I have investigated

3. The Ombudsman cannot investigate complaints that are more than 12 months after the complainant first had knowledge of the problem, unless there are good reasons to do so (see below).
4. In this case, Mr X complains that the Council failed to increase his Special Guardianship Allowance payments between 2013 and 2019. Mr X only became aware of the issue in October 2019. For this reason, I have decided there are good reasons to exercise our discretion and investigate this complaint.

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The Ombudsman’s role and powers

5. 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)
6. 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)
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)
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
10. 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

11. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
12. I considered the relevant legislation, statutory guidance and policies, set out below.
13. I also considered the Ombudsman’s published focus report ‘Firm foundations: complaints about council support and advice for special guardians’ (May 2018).

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What I found

What should have happened

Special Guardianship Allowance

14. Under a Special Guardianship Order, the courts appoint someone (often extended family members, like grandparents) to be a child’s special guardian. They then become responsible for all day-to-day decisions about the child.
15. Councils play a central role in the process. The Special Guardianship Regulations 2005, as amended, say councils may provide finance to special guardians to support continuing the arrangement after a Special Guardianship Order is made. This financial support is known as Special Guardianship Allowance.
16. The Regulations say councils must assess the special guardian for financial support. Councils must take into account grants, benefits, allowances or support that may be available to that person. Councils must consider the special guardian’s financial resources, reasonable outgoings/commitments, and financial need that relate to the child. Also, councils must have regard to the amount of fostering allowance that would have been payable if the child had been fostered.
17. Any support, including financial, should be reviewed at least annually and could be removed.

The Council’s complaints procedure

18. The Council has a two-stage corporate complaints procedure. This says it aims to send its stage one response within 20 working days of receiving the complaint.

What happened

19. Mr X became the special guardian for his younger brother, B, in 2013. Mr X then began receiving Special Guardianship Allowance (SGA).
20. In October 2019, Mr X found out that his SGA had not increased annually as it should have, so he complained to the Council. He also complained that he had not received a clothing allowance annually.
21. In November, the Council replied to Mr X’s complaint. The Council acknowledged that Mr X’s SGA had not been increased each year (on B’s birthday) as it should have been. It explained that the system the Council had used until June 2019 was not able to automatically increase SGAs annually. The Council said it had relied on special guardians returning the annual financial assessment forms to bring changes, like birthdays, to its attention.
22. The Council accepted that, even though Mr X gave the Council his new address, its system had not shared his new address across departments. This meant that Mr X did not receive the annual financial assessment forms the Council had sent to his previous address.
23. The Council recognised that this was a problem. It said it had a new financial programme which automatically increases SGAs annually. It said it was testing a new portal where special guardians would be able to update addresses so assessment forms were sent to the right address.
24. The Council apologised. It calculated the difference between what Mr X had received and what he should have received, and said it would pay him with the difference. The Council also offered £500 for Mr X’s time and trouble.
25. The Council said that an initial clothing allowance is based on need. It said when a child enters the care system, a social worker assesses whether any clothing support is needed and an application is made at that time. It said this did not appear to have happened. So, the Council said it would pay Mr X the maximum initial clothing allowance B would have been entitled to when the Special Guardianship Order was made.
26. The Council said special guardians do not receive ongoing payments for a clothing allowance because other payments were expected to cover the costs of caring for a child, including clothing costs.
27. Mr X asked that his complaint was dealt with at stage two of the Council’s complaints procedure. He said the Council should take into account his personal circumstances when calculating his SGA.
28. The Council responded at the end of November. It repeated what it said in the stage one response.
29. The Council accepted it should be mindful of the statutory guidance about how much fostering allowance would have been paid had B been fostered rather than cared for under a Special Guardianship Order. It said it had reviewed and recalculated Mr X’s SGA in line with the fostering allowance, and increased the amount it said Mr X should have received.
30. The Council said it would review the rates of other special guardians who would likely be affected, and would backdate SGA payments for them. It acknowledged the difficulties Mr X faced but said it could not take these into consideration when calculating his SGA.
31. The Council said it reminded officers to contact special guardians annually about financial assessments. It said the Council would share information internally about special guardians’ changes of address.
32. The Council offered Mr X £1500 for his time and trouble, injury to feelings, and distress.
33. Mr X then complained to the Ombudsman.

Analysis

Special Guardianship Allowance payments

34. Mr X complains that the Council failed to increase his Special Guardianship Allowance (SGA) payments between 2013 and 2019 (part a of the complaint).
35. The Council should have increased Mr X’s SGA annually. It failed to do this. This is fault. This fault caused Mr X injustice because for six years he did not receive the increased payments he was entitled to.
36. I also find the Council at fault for failing to update its systems with Mr X’s change of address. This meant Mr X did not receive the annual financial assessment forms which would have prompted the Council to increase his SGA. This caused Mr X injustice.
37. The Council accepted it was at fault and has taken action to address the problem, as well as remedy the injustice. It apologised to Mr X, paid him the difference between what he received and what he should have received, and made a payment to Mr X of £1500 for the injustice caused.
38. I am satisfied that the Council has made service improvements (referred to above, in the Council’s responses to Mr X’s complaint). It is also reviewing the SGA payments made to all other special guardians in the area. This is good practice.
39. I am satisfied that these actions remedy the injustice caused to Mr X by these faults. I find that the £1500 payment is in line with the Ombudsman’s published guidance on remedies. I am also satisfied that the Council has taken wider action to make sure all special guardians are receiving the correct amount.

Financial reviews

40. Mr X complains that the Council failed to carry out financial reviews (part b of the complaint).
41. As I have said above, I find the Council at fault for failing to update its system with Mr X’s change of address. This meant that Mr X did not receive the annual financial assessment forms and therefore the Council failed to carry out annual financial reviews. This is fault.
42. This caused Mr X injustice because if he had been annually financially assessed as he should have been, he would have received an increased SGA.
43. As above, I am satisfied that the Council’s actions have remedied the injustice caused and have reduced the likelihood of any recurrence.

Calculating Special Guardianship Allowance payments

44. Mr X complains that the Council failed to take in account his personal circumstances when it calculated his Special Guardianship Allowance (SGA) (part c of the complaint). Mr X says the Council should consider the personal difficulties he faced soon after the Special Guardianship Order was made (specifically, the breakdown of his family).
45. The Regulations set out what councils must consider when calculating SGAs (see paragraph 16). Councils must consider a special guardian’s financial circumstances. There is nothing in the Regulations that says a council should or must take their personal circumstances into account.
46. For this reason, I do not find the Council at fault.
47. Mr X says that if a child was in foster care and planned to stay in foster care, but then gets a Special Guardianship Order, the special guardian should be paid more.
48. I do not agree. The Regulations say that councils must have regard to the amount of fostering allowance that would have been payable if the child were fostered (paragraph 16). The Council has done this when recalculating both Mr X’s SGA and the SGA for other special guardians in the area.

Clothing allowance

49. Mr X complains that the Council said clothing allowance should only be paid once, but he believes it should be paid annually (part d of the complaint).
50. The Council’s stage one response explains that when a child enters the care system, they will be assessed to see if they need any clothing support. This is an initial clothing allowance and is not paid annually. This is because ongoing payments are expected to cover clothing costs.
51. I agree with the Council’s position. Councils have some discretion to make this payment annually if a child has a medical need, for example bed-wetting, which results in that child having a constant need for clothing. I have seen no evidence that persuades me that B has a constant need for clothing for a medical reason.
52. For this reason, I do not find fault with the Council.

Complaint handling

53. Mr X complains that the Council handled his complaint poorly (part e of the complaint).
54. Mr X says he chased the Council for a response to his stage one complaint after three weeks. He says the stage one response was sent on the last day within its deadline.
55. The Council sent Mr X its stage one response 19 working days after he complained. The Council’s policy says it aims to respond within 20 working days. I find that the Council did this, so I do not find fault.
56. Mr X says the Council sent its response password protected but sent the password with it. I do not find this is fault.
57. Mr X says the stage one response should have been sent in the post with a copy of the complaints procedure. The Council’s policy does not say it will do this, so I do not find fault. I find the Council’s stage one response was in line with its policy.

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Final decision

58. I have completed my investigation. I uphold parts a and b of Mr X’s complaint because there is fault which caused Mr X injustice. I am satisfied that the Council has remedied the injustice.
59. I do not uphold parts c, d, or e of Mr X’s complaint. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman