Decision : Upheld
Decision date : 28 Oct 2020
The Ombudsman's final decision:
Summary: Mr X complained about the Council’s handling of his requests for a special guardianship allowance. Mr X said this caused him financial difficulties. The Council had already investigated under the statutory children’s complaints procedures, found it acted with fault and taken suitable steps to address the injustice caused to Mr X and to make the relevant procedural changes. We could achieve nothing further.
- Mr X complained the Council:
- in 2012, told him it would assess his special guardianship allowance (SGA) after 3 years but then stopped it in 2015 without an assessment;
- in 2012, failed to inform him there were alternative ways he could care for the children other than under a special guardianship order and also failed to tell him to take legal advice;
- failed to communicate appropriately and in a timely manner during the period May 2015 to October 2018;
- gave him a form in 2018 which said it would pay the SGA until the children were 18 years old or 16 years old and earning their own income; and
- refused to backdate his SGA to May 2015, after restarting it in June 2018.
What I have investigated
- I have investigated complaints 1d) and 1e). I have investigated complaint 1c) from February 2017 onwards.
- I explain why I have not investigated Mr X’s other complaints in paragraphs 5 to 7.
The Ombudsman’s role and powers
- 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)
- Mr X made his stage 1 complaint to the Council in June 2018. I have exercised my discretion to investigate events from February 2017 onwards. Although slightly more than 12 months, this is when the Council started the financial assessment which is of relevance to later events.
- I have not investigated Mr X’s complaints about earlier events. Mr X could have complained about these matters earlier to the Council and then the Ombudsman. I have seen no reason why I should exercise my discretion to investigate them now.
- 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)
- 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)
- 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)
- 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.
How I considered this complaint
- I considered:
- Mr X’s complaints and the Council’s responses under the statutory children’s complaints procedure;
- the Special Guardianship Regulations 2005, as amended in 2016 and 2017; and
- our focus report ‘Firm Foundations: council support and advice for special guardians’.
What I found
Special guardianship orders
- 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 is in care, the child is no longer looked after by the Council once the order is made.
- ‘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.
- 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.
Statutory children’s complaints procedure
- There is a formal procedure set out in law which the council must follow to investigate some complaints relating to the care of children. This procedure applies to complaints about special guardianship allowances.
- The procedure involves three stages:
- Stage one - local resolution by the Council. This stage takes between ten and twenty working days.
- Stage two - an investigation by an investigating officer who will prepare a detailed report and findings to which the council must respond. The investigating officer 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.
- 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.
- Around 2012, the courts granted Mr X and his then wife, Mrs X a special guardianship order for two children.
- The Council gave Mr and Mrs X a special guardianship allowance (SGA), agreed for a period of three years.
- Three years later, in 2015, the Council stopped the allowance.
- Mr and Mrs X contacted the Council about this and a social worker arranged a financial support assessment. Later in 2015, Mrs X contacted the social worker and said she wanted to stop the assessment because she had begun working and now earned too much for them to qualify. The social worker confirmed this in writing to Mr and Mrs X.
- In 2016, Mr and Mrs X split up. The children remained with Mr X.
- The case files record that in December 2016 Mr X asked for a new financial assessment to begin in the new year. A social worker started an assessment in February 2017. This assessed the children’s care needs as well as including a financial assessment. In April 2017, the Council’s case notes record Mr X said he was happy with what had been written. The assessment showed a positive disposable income and stated Mr X did not feel he was struggling financially.
- On 6 July 2017, the case notes record the social worker visited Mr X. Mr X asked for financial support for the children’s activities and also asked for an update on the assessment. The social worker informed him she was not aware there were any outstanding actions.
- The social worker met with Mr X again in October 2017. Case notes record Mr X said he presumed he was not going to get any additional financial support, although he thought the Council had agreed to look at this when the social worker took his financial details in February 2017. The case notes record Mr X said he did not need further support, although they did not make it clear if he meant practical support for the children or financial support.
- In March 2018, the social worker began a second financial assessment. During the assessment, Mr X said he had financial pressures.
- The social worker completed the financial assessment and in June 2018, this went to a Council panel which approved an SGA for Mr X for the next three years.
- The social worker then asked Mr X for details of his income and expenditure because the allowance was means tested.
- Also in June 2018, Mr X made a complaint to the Council. The issues he complained about were in line with the complaints listed above at paragraph 1 of my decision statement.
- In October 2018, the Council provided Mr X with written details of the outcome of the means assessed test together with the terms under which the allowance would be paid. The Council backdated this to the date of the Panel meeting in June 2018.
- The Council failed to deal with Mr X’s complaint and so he complained to the Ombudsman. We decided not to look at the complaint and instead, in November 2018, we asked the Council to consider it.
- The Council appointed an officer to investigate (Officer A).
- In January 2019, Officer A responded to Mr X’s complaint. In relation to the complaints I am investigating, the Officer found the following:
Communication with Mr X
- Officer A found fault with how the Council had communicated with Mr X between June and October 2018. This was because Mr X had to make numerous calls to the Council before his SGA was put into place. Officer A also found the Council had delayed in taking Mr X’s financial assessment to the Panel in June 2018. Officer A stated in their findings “The records do reflect a situation between May and October 2018 of no one being clear what was happening or what needed to happen to secure the regular payments and no one person from the department was taking a clear responsibility to resolve the situation. The situation between May and October 2018 is unacceptable and the practice does fall far short of what is expected”.
- Officer A upheld this part of the complaint, apologised and backdated Mr X’s SGA to February 2018, when the financial assessment started.
Mr X received a form which said his SGA would remain in place until the children turned 18 or turned 16 years old and were earning an income
- Officer A stated this form was the Self-Assessment Means Test form which applicants sign to say the information they have given is true to the best of their knowledge. The form gave examples of the changes in circumstances which applicants must inform the Council about. The form said the SGA would cease if the child turned 18 years old or when it turned 16 years old and was earning an income.
- Officer A said these only provided examples of when a typical SGA would cease. The case notes showed the Council had written to Mr X in October 2018 with details of his SGA and the terms under which it would be paid. Officer A did not uphold this complaint.
Council refused to backdate the SGA to cover the period May 2015 to June 2018
- Officer A stated the case notes recorded the first financial assessment, which was started in 2016, was stopped by Mr X’s then wife. The Council confirmed this to Mr and Mrs X in writing. The second financial assessment, which was started in February 2017 showed a positive disposable income and Mr X had stated he was not struggling financially. Mr X had signed this assessment. Officer A, therefore, did not uphold this part of Mr X’s complaint.
- Mr X remained unhappy and in February 2019, he complained again. The Council appointed a different officer (Officer B) who was independent of the events which Mr X complained about and an independent person to oversee the investigation. The investigation looked at those complaints made by Mr X which the stage 1 investigation had not upheld.
- On 25 April 2019, the Officer B wrote to Mr X. They said the statutory timescales meant they should have completed the investigation by 24 April 2019. Officer B asked Mr X to agree an extension in order to allow them further time.
- Officer B concluded their investigation in June 2019. On 24 June they met Mr X to discuss their findings. Officer B found the following:
Mr X received a form which said the allowance in place until children turn 18 or turn 16 years old and earning an income
- Officer B found Mr X had mistaken what the self-assessment means test form stated. However, because of previous poor communications with Mr X in the period 2012 to 2015, Officer B stated this had led to “an ambiguous situation for the family”.
- Officer B partially upheld this part of the complaint.
Council refused to backdate the SGA to cover the period May 2015 to June 2018
- Officer B stated there was enough evidence to support the findings of the stage 1 investigation because:
- Mr X’s then wife halted the first financial assessment which was validated by a letter from the Council to that effect; and
- Mr X signed the second financial assessment which stated no funding was being offered.
- As part of my investigation, I have considered the investigations and findings made at each stage of the process. I have also examined the case records, the single assessments which were carried out.
- Both the stage 1 and stage 2 investigations were thorough. The officers spoke to Mr X and obtained his view of his complaints. They interviewed the relevant officers and considered the case notes. They came to a finding on each of Mr X’s complaints which were evidence based, fair and in line with the relevant legislation. The stage 2 investigation made recommendations and the stage 3 review panel ensured these had been completed. Further investigation by the Ombudsman would achieve nothing more.
- The Council has already admitted it was at fault and taken satisfactory steps to address the injustice to Mr X and make procedural changes. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman