Summary: Mrs X complains about lack of advice and support from the Council since 2010 about Special Guardianship Order allowances. The Ombudsman will not investigate the complaint further as it would be reasonable to expect Mrs X to have complained to us before 2020. The complaint is therefore late and outside the Ombudsman’s remit. In any case, it is unlikely the Ombudsman could add to the previous investigation by the Council.

The complaint

1. Mrs X complains that when she and her husband obtained Special Guardianship Orders (SGO) for their two grandsons in 2010 and 2011 the Council failed to:
1. advise them to seek legal advice about the financial impact of becoming Special Guardians;
2. review the support plan each year as required; and
3. tell them the SGO allowances would be means-tested.
2. She also complains the Council has failed to offer them a suitable remedy despite upholding part of her complaint. She says it should have restored their allowance to the level it was paying them as family and friends foster carers before they became Special Guardians.
3. As a result she says they have lost out financially and are now in debt.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)]
5. 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)
6. We may decide not to start or continue with an investigation if we believe it is unlikely we could add to any previous investigation by the Council, or it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I have considered the complaint made by Mrs X and the documents she provided.
8. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
9. Mrs X 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 Orders and allowances

10. A Special Guardianship Order (SGO), granted by a court, gives the Special Guardian parental responsibility for a child who is not their own. An SGO gives children more permanence than a regular fostering arrangement and gives their guardians more rights to make decisions on their behalf. Government guidance ‘Special Guardianship Statutory Guidance’ sets out the arrangements for financial and other support for Special Guardians.
• Councils may provide financial support in certain circumstances where it considers it necessary to enable the Special Guardian to look after the child.
• Any Special Guardianship allowances the Council pays are means-tested, taking account of any income and welfare benefits the Special Guardian receives and their outgoings.
• Councils must review the financial support they pay the Special Guardian every year.
• Councils must prepare a Special Guardian Support Plan, and keep it under review. The Plan should explain clearly what services the council will provide and for how long and when it will be reviewed. Councils must share a draft of the Plan with the Special Guardian and consider their comments.
• Where the Special Guardian was previously the child’s foster carer and receiving a fee with their allowance, the council can continue to pay the fostering allowance at the same rate they received when fostering. This usually applies for two years.

Background

11. In 2009 the Council approached Mr and Mrs X about the possibility of them caring for their unborn grandchild because of concerns about the parents’ ability to look after the child. In 2010 once the child was born the Council approved Mr and Mrs X as friends and family foster carers. It paid them a weekly fostering allowance of £125 a week, rising to £134, and birthday and holiday allowances.
12. Later in 2010 the Council advised Mr and Mrs X it would not be returning the child to his parents and suggested they apply for an SGO. They did so and the court awarded the Order in August 2010. Mr and Mrs X began receiving a SGO allowance.
13. In 2011 the Council placed a second grandchild with them as family and friends foster carers and paid them an allowance of £131 a week, increasing to £134, with birthday and holiday allowances. They later secured an SGO for the child and began receiving a second SGO allowance.
14. In 2015 Mrs X says they were struggling financially and getting into debt. She contacted the Council and found the SGO Co-ordinator they had been dealing with previously had left the Council and the post was vacant. Mrs X says the Council told her someone would be in touch. When she did not hear anything she contacted the Council again and was told a new SGO Co-ordinator had been appointed around 18 months previously.
15. After seeking advice because her financial problems were increasing Mrs X contacted the SGO Co-ordinator and asked for a financial assessment. The SGO Co-ordinator told her the SGO Allowance was means-tested. She said she had not understood it would be means-tested and asked the Council to remove the means-testing and restore the allowances to the fostering allowance rates. Mrs X says the Co-ordinator completed an income and expenditure sheet with her and promised her extra money but she heard no more about it.

Complaint to the Council

16. In January 2020 Mrs X made a formal complaint to the Council about the way it had dealt with the SGO and allowances over the past ten years. The Council contacted her to discuss the complaint and agreed the key issues in her complaint were:
• the Council had never told her and her husband SGO allowances would be means-tested.
• they had not had access to their own legal support.
• the Council had not reviewed the SGO Support Plans regularly.
17. Mrs X said she wanted the Council to remove the means-tested element from any financial support she received from then onwards. She also wanted it to restore payments to the level of the fostering allowance, and backdate the changes to when the SGOs were made.
18. The Council investigated the complaint through three stages of its complaints procedure. By the end of the process the Council had partially upheld the complaint. It made the following findings.
• There was evidence from signed documents that Mr and Mrs X were aware that SGO allowances differed from fostering allowances and would be means-tested. However, the Council accepted it did not explain to them properly what means-testing meant.
• They did have access to legal advice, but not in the way SGO applicants would have now under current guidance.
• The Council had failed to review the support plans regularly.
19. The Council agreed to end the means-testing by stopping deductions for income and backdate the non-means tested SGO allowance to the date the SGOs were made. It also offered to backdate payments for birthdays and holidays.
20. It did not agree to restore the allowance to the fostering allowance rate going forward or for the past. It explained this was because it had reviewed the decisions taken about long-term care planning for the two children and found they were sound. It said it was unlikely the Council would have decided to keep the children under full Care Orders, with Mr and Mrs X as family and friends foster carers, on a long-term basis. It was likely at some point, probably around two years after the full Care Orders, that it would have explored SGOs with them.
21. The Council then calculated the amount they would have received at the fostering allowance rate if this had been maintained for a transitional period of two years. It compared this to the amount they received at the adjusted rate with the backdating of the non-means-testing in SGO allowances for the two years. It did this even though Mr and Mrs X were not eligible for the two-year protection. It found they had not lost out financially.

Complaint to the Ombudsman

22. When Mrs X complained to the Ombudsman she raised the original issues she had raised in the complaint to the Council. She was not satisfied with the Council’s response. She was pleased that the Council had agreed to end the means-testing and backdate the increase and birthday and holiday allowances. However, she was not happy it had not agreed to restore the allowances to the fostering allowance rate. She said the Council had based its calculations on a later reduced fostering allowance rate rather than the higher amount she and her husband had received in 2010 and 2011.

Analysis

23. The complaint concerns actions the Council took or failed to take in 2010 and 2011. Mrs X confirmed to the Ombudsman she was aware when she first received the SGO allowance that it was a lower amount than the fostering allowance she had received previously.
24. I consider Mrs X had several opportunities since then to make a complaint to the Council, and then if she was dissatisfied to the Ombudsman. For example, she contacted the Council in 2015 because of her financial difficulties but did not complain when she did not receive a response for over a year. Then in 2016 or 2017 when she had learned about the means-testing and the new SGO Co-ordinator promised to carry out a financial assessment, she did not make a complaint when she received no further response. Mrs X did not make a formal complaint to the Council until January 2020.
25. Mrs X has not provided good reasons for why she did not complain earlier. In my view the complaint is late and so is outside the Ombudsman’s remit.
26. In any event, even if I were to investigate further, I am unlikely to add to the Council’s investigation or achieve more for Mrs X. She disagrees with the offer the Council has made because she says it has made a mistake in the rate of the allowance it used in its calculations. She says she received £250 a week for each child as a foster carer. The Council has provided evidence that this was not the case.
27. The Council has carried out a detailed investigation. It has accepted it was at fault in failing to explain properly what means-testing meant and failing to carry out regular reviews of the support plan. The remedy it has offered to remove the means-tested element of the financial assessment and backdate the increase and allowances is appropriate to the impact of the fault it found.

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Final decision

28. I have discontinued my investigation. The complaint is late and so outside the Ombudsman’s jurisdiction. It is also unlikely further investigation would lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman