Decision : Upheld
Decision date : 11 Dec 2020
The Ombudsman's final decision:
Summary: Ms X complained the Council stopped her Special Guardianship Allowance in 2016 although she was experiencing financial hardship at the time. During our investigation, the Council admitted it acted with fault. It has awarded Ms X £22,300 in back payments. This is satisfactory to remedy the injustice the Council caused her. The Council has also agreed to carry out an audit of special guardians to ensure others have not been affected by the same fault.
- Ms X complained the Council stopped her Special Guardianship Allowance in 2016 although she was experiencing financial hardship at the time.
- Ms X says this caused her distress and exacerbated the financial hardship she was experiencing.
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)
- In this case, I have decided to exercise my discretion and investigate events that have happened since 2016. This is because Ms X has provided information which demonstrates that because of health issues and significant events taking place in her life in the period 2016 to 2019, she would have struggled to complain to us about it at the time.
- 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 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)
- 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 spoke to Ms X and considered her view of her complaint.
- I spoke to the Council and considered its views on the complaint.
- I considered the Special Guardianship Regulations 2005 (the Regulations) and related statutory guidance (the Guidance).
- Ms X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
What I found
- A Special Guardianship Order (SGO) is a private law order made under the Children Act 1989. It is intended for children who cannot live with their birth parents and appoints a person to be the child’s special guardian who can exercise parental responsibility for that child.
Financial support to special guardians
- The Special Guardianship Regulations 2005 set out the Council’s duties when an SGO is made including possible support services such as counselling, advice, information and financial support.
- The Regulations say financial support to special guardians is payable to support the continuation of the arrangement after an SGO is made. Regulation 6 says financial support is only payable in certain circumstances including where the council considers it is:
- necessary to ensure that the Special Guardian can look after the child;
- appropriate to make a contribution to 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.
- 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;
- the council’s and Special Guardian’s respective responsibilities.
The Council’s policy
- In 2016, the Council’s policy on SGOs stated it would pay a financial allowance for three years. It goes on to say “In certain individual circumstances, the Council may exercise its discretion to pay an allowance beyond the maximum three year point”.
- The Council said during 2017/18 it reviewed its practice around SGOs. Following this, all carers now receive an annual means test and continue to receive payments unless the test indicates the carer has no more need for financial support. The Council uses the Government’s recommended means testing model to calculate the SGO allowance payable to the household.
- In 2013, the courts granted an order to make Ms X the special guardian for her grandchild, Z.
- The Council agreed to pay Ms X a special guardianship allowance (SGA). It wrote to her in May 2013 and said “I am pleased to inform you that you will be entitled to an allowance of £119.00 per week from 01/05/13 … this is for a period of 3 years as per Department Policy”. The letter contained no further information about the allowance.
- Three years later, in 2016, the Council stopped Ms X’s allowance.
- In September 2016, Ms X met with two Council officers to discuss the special guardian support plan. A further meeting took place in October 2016 to gather information for the support plan.
- The Council sent the special guardianship assessment of need and support plan to Ms X in November 2016. The plan included the following information:
“[Ms X] reports to have no additional money to spend on [Z] without the regular monthly payment from the local authority... [Z] does not have any identified needs over and above any other child that would support the Local Authority providing continued regular financial support”
- Ms X spoke to the officer who told her the Council would not be continuing her allowance. However, the Council would make Ms X a one-off payment to help her move house and to purchase some kitchen items.
- Ms X complained to her MP about the loss of her allowance. The MP wrote on her behalf to the Council who replied in December 2016. The letter said that because the Council had not identified any special needs for Z, it would not agree further financial support, other than the one-off payment.
- The Council made the one-off payment to Ms X in January 2017. At the same time it confirmed it would not restart her monthly allowance.
- Around May 2017 the Council carried out a Children and Family Assessment. The Council did not carry a financial means test at the same time. It did not identify any special needs for Z and so refused to restart Ms X’s allowance.
- In December 2018, the Council sent Ms X a financial assessment form for her to complete and requesting documents such as proof of benefits, payslips and bank statements. Ms X returned the information in January 2019.
- In May 2019, the Council wrote to Ms X and said that it had decided to restart her allowance for a period of 12 months, following which it would reassess the situation.
- In January 2020, Ms X complained to the Council that the 2016 assessment contained inaccuracies. The Council responded and said it would not consider her complaint because the events had taken place too long ago.
- Ms X complained to the Ombudsman.
- During my investigation, the Council contacted me and said it would like the opportunity to work with Ms X to resolve the issues she complained about. It then wrote to me in November 2020 and said “We can only apologise to [Ms X] as it seems we did not follow our standard practice to use our discretion when her payments ceased after 3 years in 2016. [Ms X] advised us her income remained the same and she did claim what appears to be financial hardship to us in writing on more than one occasion. At this point we should have undertaken a full financial means test. I cannot offer an explanation as to why the decision was made to undertake just a Child and Family’s Assessment and not a means test… this would then have likely identified her need for continued payments. I believe we made an error here and subsequently let [Ms X] and her grandson down”.
- The Council calculated Ms X’s back payments and offered her £22,300 which she accepted. The Council has now paid this to Ms X.
- The Council admitted during my investigation it acted with fault when it did not carry out a financial means test before it stopped Ms X’s SGA in 2016. It also says it acted with fault when it did not assess her in 2017. It has now calculated Ms X’s back payments and paid Ms X the SGA she missed out on. This is satisfactory to remedy the injustice the Council caused her. However, the Council should carry out an audit of other special guardians to ensure they have also not missed out on the allowance they were entitled to.
- Within three months of the date of the final decision, the Council has agreed to carry out an audit of 15% of special guardians who, between 2016 and 2019, had their SGA stopped after the initial three year period. The Council will check whether these special guardians were given a financial means test prior to their SGA being stopped.
- In those cases where the Council did not carry out a financial means test, it will do so now to ensure the special guardian did not miss out on any SGA they were entitled to.
- The Council will report back to the Ombudsman with its findings.
- There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman