Decision : Not upheld
Decision date : 02 Dec 2020
The Ombudsman's final decision:
Summary: The Council was not at fault for its decision to end Mrs B’s special guardianship support. It properly applied its policy and statutory guidance, and considered detailed information about her finances, so we cannot question its decision.
- The complainant, whom I refer to as Mrs B, is the special guardian of three of her grandchildren. She complains that the Council stopped paying her special guardianship allowance after a fixed period and – although she has ongoing financial problems – has refused to continue paying her a regular allowance.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
What I have investigated
- The Council’s original decision to time-limit Mrs B’s allowance, and its review panel’s first decision not to extend it, took place more than a year before Mrs B approached the Ombudsman. I do not see a good reason why she could not have complained earlier, so I cannot investigate these matters.
- I have, however, investigated the Council’s most recent decision – in February 2020 – not to extend Mrs B’s financial support any further.
How I considered this complaint
- I spoke to Mrs B about her complaint, and considered information from Mrs B and the Council. Both parties had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should have happened?
Special guardianship statutory guidance (on the Special Guardianship Regulations 2005)
- This 2017 document sets out the special guardianship support services councils must provide.
- Financial support is paid to special guardians in certain circumstances, including when the council considers it appropriate to help with the expenditure necessary
- Financial support may be paid as a regular allowance, if it is to help with recurring expenditure. Otherwise, it may be paid as a single payment or in instalments (Regulation 8).
The Council’s 2019/20 special guardianship policy
- All children who were looked-after by the Council immediately before a special guardianship order (SGO) will be assessed for support services. If there is a need for support, the Council will write a support plan. This plan will be discussed and agreed with the special guardian(s).
- Lack of support, financial or otherwise, should never be the reason why a special guardianship arrangement fails.
- If the Council decides to pay financial support to a special guardian – either straight after the SGO or following a support review – it will use the Department for Education (DfE) means-test model to decide the level of support to provide.
- The duration of financial support is payable up to two years. However, the Council may consider whether exceptional circumstances justify providing further financial support.
- In considering whether to extend the support beyond two years, the Council will complete a ‘financial checklist’ (not an assessment using the DfE model) and submit this to a review panel for consideration. The panel will decide whether to extend support, and – if it does decide this – the Council will, again, use the DfE model to decide the level of support.
The DfE standardised means test model for adoption and special guardianship financial support
- The government issued this model, for use by councils when deciding financial support to special guardians, in 2005. The model is suggested only, and therefore councils have no duty to use it.
- In March 2016 the Council wrote a support plan for Mrs B and her husband, who were applying for an SGO for their three grandchildren. Their grandchildren were, at the time, looked-after.
- In the plan the Council proposed to make support payments of £126 per child, per week, for two years. It said the payments would only continue after two years in exceptional circumstances.
- The SGO was made in April 2016. After this, Mrs B became eligible for child benefit, so the Council made deductions to her allowance to reflect this.
- In February 2018 the Council confirmed that Mrs B’s two-year allowance – as agreed in the SGO support plan – was due to end.
- Mrs B’s husband appealed this decision. He said she was unemployed and was struggling to find work which would fit with the children’s different nursery and school patterns. He said he worked shifts so could not consistently help her. He asked for an extension to the allowance until she could get back to work.
- The Council acknowledged the appeal, and conducted a financial assessment (using the DfE model) in August 2018. The assessor recommended that – based on the family’s financial circumstances – Mrs B should continue to receive her allowance.
- At an appeal review hearing in October 2018, the panel decided the Council should continue paying half of the allowance Mrs B received for the younger two children for a year, to support her until they started school. It decided this allowance should be paid as a lump sum.
- The Council initially made deductions to this lump sum payment to account for extra allowance Mrs B had received while she was waiting for the review panel hearing. However, after further representations from Mrs B, it decided to waive the deductions and paid her the full amount decided by the panel (around £5,500).
- In March 2019 Mrs B and her husband were declared bankrupt.
- After Mrs B continued to contact the Council about the allowance, it wrote to her in December 2019. It said that, as was made clear at the time, the allowance was only ever intended for a two-year period. It said financial support cannot be relied upon as a continued source of income. However, as Mrs B had raised concerns about her finances, it agreed to review its decision.
- In January 2020, the Council conducted a financial ‘checklist’ – rather than an assessment using the DfE model – the outcome of which was that the family’s monthly expenditure exceeded its income by around £15.
- In February, the Council’s review panel considered Mrs B’s case – including the financial checklist – and decided no further financial support was to be provided. It noted that the family were receiving support from a local family centre, and that the oldest child was about to access therapeutic support. It also noted that support was available from the children’s school.
- Mrs B’s complaint is that the Council stopped paying her special guardianship allowance, despite her ongoing financial difficulties.
- Special guardians do not automatically qualify for an allowance, but councils can provide financial support if they consider it appropriate to help a special guardian to look after a child. This, necessarily, requires some consideration of a special guardian’s financial circumstances before a decision is made.
- The Council uses the DfE’s means-test model to decide the level of initial support – which is what it did in Mrs B’s case. She received an allowance for two years and then, in 2018, the Council partially extended the support up to late 2019, before ending it.
- As I have said above, I am not investigating the Council’s decision-making pre-2019 – which includes the decision, in October 2018, to partially extend the support for a year and no longer.
- The question is whether, once Mrs B had challenged the decision to end the allowance and had explained why she still needed it, the Council acted properly in refusing to continue paying her financial support.
- When someone challenges a decision to end financial support, the Council does not just use the DfE model again. It instead conducts a ‘financial checklist’ and submits this to its review panel. If the panel decides financial support should continue, the Council then conducts a further financial assessment, this time using the DfE model, to decide what level of support to provide.
- Although this approach appears confusing, there is nothing which prohibits the Council from taking it. And the financial ‘checklist’ is not actually used to decide an allowance in the same way as the DfE model is used – it is a tool to assist the Council’s panel in its decision-making by providing a detailed summary of a special guardian’s finances. I have no reason to find fault with the Council’s use of this checklist.
- I also cannot question decisions made by councils if there is no fault in how those decisions are made. The Council followed its policy and the statutory guidance, and considered the information Mrs B provided about her finances, so I have not found fault in how it decided her family had access to necessary support without the need for a continued allowance.
- As there was no fault in how the decision was made, I cannot question it. For this reason, I have not found fault with the Council.
- The Council was not at fault for its decision to end Mrs B’s special guardianship support.
Investigator's decision on behalf of the Ombudsman