Summary: Mrs X complained the Council wrongly reduced her Special Guardian Allowance and failed to provide her family with support. She also says it caused delays and failed to correct its errors after she complained. The Council’s independent investigation found significant faults and it took action to remedy the injustice caused. Mrs X believed the remedies were inadequate. The Ombudsman finds the Council’s faults caused Mrs X and her family an injustice. The Council has agreed make payment to acknowledge the distress, uncertainty, loss of opportunity and time and trouble they experienced. It also agreed to review its current support to the family. In addition, it will also review its procedures for Special Guardians and ensure its staff are aware of these.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the Council’s handling of her case after it placed her two grandchildren in her care. She said it:
• wrongly reduced her Special Guardian Allowance and failed to provide her with a breakdown of its calculation;
• failed to provide any other support for her or the children; and
• caused delays and failed to correct its errors after she complained;
2. As a result, Mrs X said she experienced distress and financial loss. She also said her grandchildren experienced distress and it affected their mental health.

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The Ombudsman’s role and powers

3. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
4. 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)
5. 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)

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How I considered this complaint

6. As part of this investigation, I have:
• considered the complaint made by Mrs X and the Council’s responses;
• discussed the complaint with Mrs X over the telephone;
• considered the Council’s responses to my enquiries; and
• given Mrs X and the Council the opportunity to comment on a draft version of this decision and considered their comments.

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What I found

The Children Act 1989

7. A Looked After Child is any child or children subject to a care order under section 20 of the Children Act 1989.
8. Councils have a duty under section 22 of the Act to safeguard and promote the child’s welfare. To achieve this, all looked after children should have a care plan, which councils must regularly review.
9. The council must also appoint an Independent Reviewing Officer (IRO) to every looked after child. An IRO should be an experienced social worker who ensures the council is prioritising the child’s needs and interests.
10. The council must hold looked after child reviews to oversee implementing the care plan, check progress and make any necessary changes. The council should hold reviews as often as necessary.

Special Guardianship

11. A special guardianship order (SGO) is an order appointing one or more individuals to be a child’s special guardian. It is an order intended for children who cannot live with their birth parents and/or who would benefit from a legally secure placement.
12. Regulation 7 of the Special Guardianship Regulations 2005 says remuneration for former foster carers can be made if agreed in advance of the SGO, and can only continue for two years except in exceptional circumstances.

Children’s social care statutory complaints procedure

13. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review panel to be held.
14. The regulations place a duty on the local authority to act promptly to ensure the complaint is dealt with as swiftly as possible. Getting the best from complaints says:
• the complaint should take a maximum of 20 working days at stage 1;
• the stage 2 investigation should take a maximum of 65 working days, and
• a maximum of 30 working days may be taken to convene and hold a stage 3 Review Panel.
15. If a council has investigated something under this procedure, we would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

The Council’s working practice for special guardianship financial support

16. The Council has adopted the Department for Education and Skills’ (DFE) model means test for adoption and special guardianship financial support.
17. The policy explains how the Council will assess a special guardian’s entitlement for financial support. This includes:
• where a family’s income is only Income Support, the Council will pay the applicable maximum payment without assessing their income and expenditure;
• financial support cannot duplicate or substitute any payment which special guardians would be entitled to under the tax and benefits system. A reassessment of the family’s means will be completed after three months to capture any new benefits being received;
• Child Benefit received for children subject to the assessment will not be included in the calculation, but will be deducted from the payment after the means test has been completed.
• Child Tax Credits are included in the household’s income;
• Some payment can be deducted from the family’s household income, such as council tax payments after any council tax reductions and certain loan payment which were taken out to meet the family’s needs as a result of the special guardianship order.
• 25% of the household income is disregarded to allow for general household expenditure.

What happened

18. Mrs X is the grandmother of two children, Child A and Child B. The children were removed from their mother’s care in 2018 and were placed in the Council interim care.
19. The children’s mother suggested Mrs X cared for the children. And so, the Council placed the children with Mrs X as a temporary foster carer and paid her foster carer allowance.
20. In late 2018 the Council assessed Mrs X’s needs to look after the children and approved Mrs X as a special guardian. It also produced a support plan for the children.
21. The Council said it sent the support plan to Mrs X by Recorded Delivery, but Mrs X says she did not receive it. The Council presented the plan to a court and a special guardianship order was granted to Mrs X in respect of the children.
22. The Council paid Mrs X the full allowance as a special guardian but said in its emails to her that it would review this after three months.
23. Three months later the Council reassessed Mrs X’s income. As a result of Mrs X claiming benefits for the children, the financial support she received from the Council was reduced.
24. Mrs X told the Council she was promised by two of its social workers involved that she would continue to receive the full Special Guardian Allowance, equivalent to the Foster Care Allowance she had been receiving, for as long as she remained in receipt of Income Support.
25. Following discussions between Mrs X and the Council, it agreed to pay Mrs X the full Special Guardian Allowance until December 2019.
26. The Council reviewed the children’s placement on two occasions. Mrs X told the Council she had concerns about Child A’s behaviour, and she did not feel supported by the Council. The allocated social worker discussed support with Mrs X. This included a referral to the Adoption Support Fund for life-story work with the children. The Social Worker also referred Child A for support from the local Child and Adolescent Mental Health Services (CAMHS). However, the local CAMHS could not accept the referral as the therapy would not work while Child A remained in contact with her mother.
27. In September 2019, Mrs X complained to the Council. She said she should receive the full Special Guardian Allowance as her support workers had told her she would receive this as long as she was in receipt of Income Support. She was also unhappy with the non-financial support the Council had provided her so far.
28. In response, the Council told Mrs X its assessment of her Special Guardian Allowance was correct, and it would review her entitlement in December 2019.
29. At this time, Mrs X case was transferred from the allocated social worker to its Special Guardianship Team. However, the officer the Council allocated to look after Mrs X’s case was away for an extended period.
30. Mrs X was not satisfied with the Council’s response and so she asked the Council to consider her complaint under the second stage of the Children’s statutory complaints procedure. She said the Council:
• had failed to put in place an Adoption Support Plan when it applied for her to be granted a Special Guardianship Order.
• Failed to apply to the Adoption Support Fund in a timely manner and told her it had applied when it had not.
• Failed to provide adoption support to her in particular for Child A.
• Failed to provide her with the agreed level of financial support as promised by two support workers.
• Reduced her Special Guardian Allowance without proper notice and failed to provide a breakdown of how this was calculated.
• Failed to follow statutory guidance in relation to payment of Special Guardian Allowance for former foster carers.
31. The Council arranged for an investigation officer and an independent person as required by the stage two process. It told Mrs X it would facilitate the investigation through phone or video calls due to the travel distance between the Council area and where Mrs X lives.
32. However, an extensive delay occurred as Mrs X preferred for the investigation to be completed in person. The Council said it could not agree to this as it found video calls to be suitable to do so. And so, Mrs X asked the Ombudsman to consider the matter.
33. During this time, the Council’s officer allocated to Mrs X’s case contacted her and provided advice and assistance. It was agreed the Officer would travel to meet with Mrs X to complete a new assessment of need. Mrs X also gave permission for the officer to speak with the children’s school. However, due to the outbreak of COVID-19 the visit had to be postponed.
34. The Officer continued to provide information and referrals to Mrs X. She also agreed to look for support for her through an application to the Adoption Support Fund.
35. Mrs X also started receiving support from a local support organisation. This was because a local support worker had referred her son for support due to concerns that he may have been a victim of grooming by drug dealers. Although the support was for Mrs X’s son, it included support for the whole family including Child A and Child B.
36. In April 2020, the Officer completed an initial Assessment Support Plan. The plan reviewed the children’s time with Mrs X, the challenges and support that had been provided to the family. The support in place at this stage included:
• The local support organisation;
• CAMHS wellbeing support, which it could now offer as the children’s contact with their mother had stopped.
• school councillor and 1:1 support; and
• School nurse and GP support.
37. The Council’s Officer continued to liaise with the local support services and gather information from Mrs X to support her application to the Adoption Support Fund for therapeutic support for Child A. The Officer applied in the summer of 2020 which named a local support organisation. However, the Fund could not accept the application.
38. In July 2020, we told the Council and Mrs X the suggested approach to use video calls for the stage two investigation was not unreasonable in the circumstances. And so, the Council offered Mrs X to continue the stage two complaints procedure.
39. In August 2020, the Officer applied to the Fund again with more information from the local support organisation to improve the application.
40. In September 2020, the Council’s stage two process started again.
41. The Independent Officer gave Mrs X and the Council his decision in December 2020.

The Independent Officer’s decision

Council had failed to put in place an Adoption Support Plan when it applied for her to be granted a Special Guardianship Order.

42. The Independent Officer could not make a finding on whether the Council failed to put in place an Adoption Support Plan when the Court granted the Special Guardianship Order to Mrs X. This was because the Council said it had provided the Support Plan to Mrs X before the Court hearing, but Mrs X said she had not received it. The Officer said there was not enough evidence available to determine this matter and make safe a decision.

Failed to apply to the Adoption Support Fund in a timely manner and told her it had applied when it had not.

43. The Independent Officer found fault by the Council for its delay in applying to the Adoption Support Fund. This was because the Council had identified Child A’s needs for this support in June 2019, but failed to action the application until March 2020.

Failed to provide adoption support to Mrs X, and in particular for Child A.

44. The Officer found the Council was at fault for its failure to provide support for Mrs X and in particular Child A between July 2019 and February 2020. This was because there was a transfer from the allocated social worker to the Council’s Permanency and Fostering Team. However, no officer was allocated or available to support Mrs X during this time.
45. There was no fault found in the support provided to the family from February 2020, as the Council’s allocated officer provided support and worked with agencies local to Mrs X.

Failed to provide her with the agreed level of financial support as promised by two support workers.

46. The Officer found there was a difference between the records held by the Council and Mrs X’s memory of what was promised to her at the time of the Court Hearing. The Adoption Support Plan showed the social worker intended for Mrs X’s financial support to remain unchanged for one year. Other records and the Council’s policies referred to a review of the financial support after three months. While Mrs X believed the financial support would remain unchanged for as long as she receives income support. And so, the Independent Officer could not make a definitive judgement on this.
47. The Officer did find fault by the Council for its means test in March 2019. This was because the Adoption Support Plan said this should not happen for the first year of payments. However, it resolved the matter following Mrs X’s complaint in March 2019. This was because the Council agreed to pay Mrs X the same level of financial support for one year, before she would be subject to a means test.

Reduced her Special Guardian Allowance without proper notice and failed to provide a breakdown of how it calculated this.

48. The Officer found fault by the Council for failing to provide a good standard of communication with Mrs X around the reduction of her financial support. He said it did not give Mrs X proper notice of its reduction in her Special Guardian Allowance in March 2019. And so, Mrs X did not have the opportunity to appeal or challenge the decision.
49. The Officer recognised the Council had already acknowledged and remedied this by agreeing to pay the financial support as set out in the Adoption Support Plan presented to the Court. However, he also commented it was not helpful the financial assessment was an automated decision completed by a separate team, which did not include the people responsible for supporting Mrs X and the children.

Failed to follow statutory guidance in relation to payment of Special Guardian Allowance for former foster carers.

50. The Officer found the Council had correctly applied its Policy and the Guidance from Central Government. Although, he accepted the Council’s Policy and the DFE model could be seen as ambiguous. This is because it says people in receipt of Income Support should be paid the full allowance minus Child Benefit. However, it later says Special Guardian Allowance should not be seen as an addition to any benefits a Special Guardian can claim. Special Guardians are expected to claim all benefits which they are entitled to, including Tax Credits, and a re-assessment of the financial circumstances should be completed after three months.
51. However, the Officer did find the Council had wrongly considered Mrs X a Connected Carer instead of a Temporary Foster Carer. The Council’s view was that it had approved Mrs X as a Connected Carer, and so this entitled her to receive basic carer’s allowance and should be subject to a means test after one year. However, this was not clear from the records available. Instead, the Council temporary approval of Mrs X referred to her being a Foster Carer by the Council’s Senior Manager. The Officer decided Mrs X should therefore be treated as such. And so, in line with the Council’s Policy Mrs X should be entitled to two years of Special Guardian Allowance without being subject to a means test.

Independent Officer’s recommendations and the Council’s response

52. The Independent Officer’s decision made the following recommendations that the Council should:
• apologise for the lack of support provided to Mrs X between July 2019 and February 2020;
• consider employing and independent social worker in the area where Mrs X lives to provide advice and support to her and the children;
• pay Mrs X for the period between December 2019 and December 2020 to cover the balance between the payments she would have received as a Foster Carer for the Council.
• undertake a review of Mrs X’s current financial circumstances and consider whether it can provide any further financial support to avoid a placement breakdown;
• apologise for its delay in making an application to the Adoption Support Fund for Child A and apply for support for Child B, if it deems this necessary;
• review its procedure for keeping evidence of Recorded Delivery mail within client files;
• review its current guidance on the payment of Special Guardianship Financial Support to ensure it is clear about the rules on means testing; and
• ensure it tells special guardians about likely changes in financial support. In addition, it should consider whether social work involvement is needed to support special guardians, in circumstances where there are significant changes in the level of financial support provided.
53. The Council has agreed with the Independent Officer’s recommendations. It provided its apologies to Mrs X and paid her the balance between payments she would have received as a foster carer between December 2019 and December 2020. It agreed to meet with Mrs X and review her current financial circumstances and consider if it can provide any further financial support. It also agreed to review its guidance and procedures, and ensure its staff are aware of these.

Analysis

54. I found the Council’s stage 2 investigation was carried out in line with the relevant guidance. The Independent Officer agreed a statement of complaint with Mrs X and confirmed her desired outcomes. The investigation took account of evidence from a range of sources and addressed each of Mrs X’s complaints in detail. The Officer’s report was detailed and thorough. The Independent Person oversaw the investigation and was content with the conclusions and outcomes.
55. There is no evidence to suggest the investigation was flawed so there are no grounds for the Ombudsman to reinvestigate the issues. In addition, I do not consider the Ombudsman can add to the stage 2 investigation and achieve a different outcome.
56. I recognise Mrs X remains unhappy the Council reduced her Special Guardian Allowance significantly following its means test after the two-year period. However, there is not enough evidence to make a finding on what Mrs X’s Social Worker’s promised her in late 2018. Also, the Council’s support plan for Mrs X and the children was considered by the Court in late 2018. This would have been the appropriate time for Mrs X to raise her concerns about the content of the plan and that she had not received a copy of the plan. In addition, I cannot question a court order, and so I cannot question whether Mrs X agreed to the support plan, which means I cannot investigate this part of her complaint further.
57. The Special Guardianship Regulations say that, although payments made to former foster carers should only continue for two years after the date of an SGO, they can continue in exceptional circumstances. Mrs X told the Council that she is struggling financially after the reduction in her financial support. She said this is putting the placement at risk. And so, I agree with the independent officer, the Council should consider whether Mrs X’s circumstances are exceptional enough to justify further payments. The Council has agreed to meet Mrs X and consider her needs. However, once it has done so, its decision on this matter is at its discretion.
58. Mrs X also said the Council had caused delays in its handling of her complaint. She first complained to the Council in September 2019 under the children’s statutory complaints procedure. The guidance says it should provide a stage one response within 20 working days and a stage two response within 65 working days. There was no significant delay in the Council’s stage one response. However, it took one year to complete the stage two process. This delay was due to Mrs X preferring the investigation to take place in person and not through video calls. The Council did not find this was justified considering the travel distance. And so, Mrs X brought the matter to the Ombudsman. We did not find the investigation had to be in person, however, our involvement meant the stage two investigation first started again in summer of 2020. And so, the time limits to provide a stage two response started from this date. The Council provided its final response in December 2020. And so, I am not satisfied the Council was at fault for the delays or its handling of the complaint.
59. In addition, Mrs X asked if the Council would consider her complaint under the stage three of the children’s statutory complaints procedure. The Council told Mrs X it may not be able to do a stage three process due to COVID-19 and it did not think it would provide a different outcome to its stage two decision. The Council proposed for the Ombudsman to continue to consider the matter. I agree with the Council’s view, the matter has been properly investigated by the Independent Officer and reviewed by the Independent Person. And so, I see no benefit from asking the Council to complete the stage three of the complaints process.

Was there fault by the Council?

60. The Independent Officer found faults by the Council. It agreed with the Officer’s decision. And so, the Council was at fault for:
• wrongly assessing Mrs X’s means in March 2019 and reducing her financial support;
• failing to provide breakdowns of its means tests and enough information about its decisions to enable her to challenge her reduction in financial support.
• failing to provide social work support to Mrs X between July 2019 and February 2020;
• wrongly paying Mrs X a reduced amount of financial support between December 2019 and December 2020; and
• causing a delay of nine months in applying to the Adoption Support Fund on Mrs X’s behalf and wrongly told her it had applied, when it had not.
61. The Council apologised to Mrs X for the faults identified. It paid Mrs X the difference between her entitlement and its reduced payments. It has also since supported Mrs X to apply to the Adoption Support Fund and provided a breakdown of its most recent financial assessment of her means.
62. However, Mrs X considers the remedy offered by the Council to be inadequate and says it does not address the impact of the Council’s failings on her family.

Injustice

63. I am satisfied Mrs X and her family experienced significant injustice as a result of the Council’s failings. This is because:
• the lack of support she received made it difficult for her to cope with the stress of looking after her grandchildren;
• she experienced uncertainty and distress from the Council’s delays in applying to the Adoption Support Fund and its failure to provide a breakdown of her financial support. I cannot say if an application would have been successful. However, on balance, had the Council made the application when it said it would, I am satisfied Child A would have received the support from the Fund sooner. And so, Child A also experienced an injustice for the missed opportunity to receive therapy support sooner;
• she also struggled to look after her family financially between December 2019 and December 2020 when the Council reduced her financial support. This caused upset within the family as her children could not continue their normal activities and caused Mrs X further distress.

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Agreed action

64. To remedy the injustice the Council caused to Mrs X , the Council has agreed to, within one month of the final decision:
1. pay Mrs X £400 to acknowledge the avoidable distress caused;
2. pay Mrs X £550 to acknowledge the uncertainty and missed opportunity this caused her and her family; and
3. pay Mrs X a further £200 for her time and trouble to challenge the Council’s decisions and provide the support she was entitled to.

In total the Council should pay Mrs X an acknowledgment of £1,150.

65. Within three months of the final decision the Council should also:

d) review the financial support provided to Mrs X and decide if further support is necessary to prevent a breakdown of the placement;

e) review if an Adoption Support Fund application is necessary for Child B;

f) review its Recorded Delivery record keeping within client files;

g) review its guidance on Special Guardianship financial support, and consider whether social work involvement is needed to support Special Guardians in circumstances where there are significant changes in the level of financial support provided;

h) ensure it tells Special Guardians about changes to their financial support following a means test and provide breakdowns of financial support calculations; and

i) remind its staff of the guidance and its procedures in place to ensure this is adhered to at all times.

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Final decision

66. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman