Summary: the Council was entitled to reclaim the special guardianship allowance overpayment for Mrs G’s eldest child. However, the Council should have made age-related increases to the special guardianship allowance it paid. The Council has re-calculated the payments and reduced the amount Mrs G owes. The Council has offered to write off the remaining balance, so Mrs G now owes nothing. The Council will also review the payments of other families to check they have received the correct allowance.

The complaint

1. Mrs G complains about the Special Guardianship Order allowance paid by the Council. Mrs G became a Special Guardian for her grandchildren in March 2017. In particular, Mrs G complains:
1. the Council has not increased the payments since March 2017: there have been no annual increases or age-related increases;
2. the Council reclaimed an overpayment of approximately £24,000 paid after her eldest child’s 18th birthday. Mrs G believed she would continue to receive an allowance for all the children until the youngest reached 18. She says she was not told she had to inform the Council when the children reached 18. She does not think she should have to repay the overpayment as it was the Council’s mistake.
2. Mrs G complains about the lack of support from the Council to secure suitable accommodation for the children. She says she paid for two ‘pods’ for the children with backdated fostering allowance (from a different council) and almost £5,000 from her sister.
3. Mrs G complains the Council has not completed pathway plans for the oldest children.
4. Mrs G is unhappy with the Council’s response to her complaint.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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. I have considered:
• information provided by Mrs G;
• information provided by the Council.
7. I invited Mrs G and the Council to comment on my draft decision.

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What I found

8. Mrs G became a Special Guardian for her grandchildren in March 2017.

Special Guardianship

9. A Special Guardianship Order is a court order that gives a carer parental responsibility for a child.
10. Councils can provide financial support if they consider it is necessary to ensure a Special Guardian can look after a child. Financial support can be a one-off payment for initial expenses or regular payments. Regular payments are called Special Guardianship Order Allowance.
11. The Council 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.
12. If the Council pays special guardianship order allowance, it must review the payments at least once a year.

Complaint 1a) Failure to increase Special Guardianship Order Allowance

13. Mrs G complains the Council has not increased the Special Guardianship Order Allowance payments since she became the children’s Special Guardian in 2017. She believes she should have received annual increases and age-related increase like foster carers do.
14. In response to my enquiries, the Council explained its payments system does not automatically increases payments when a child moves to a different age bracket.
15. The Council said age-related increases should have been applied as part of an annual review of the financial arrangements, but problems resourcing the service meant this did not happen. As a result, Mrs G had been underpaid.
16. The Council calculated the amount Mrs G should have been paid, taking into account age-related increases for all the children. The Council owes Mrs M approximately £15,000.

Complaint 1b) The overpayment

17. The Council paid approximately £24,000 for Mrs G’s eldest child after her 18th birthday. The Council said Mrs G had to repay the money.
18. The Council explained its computer system was not set up to stop payments when a child reaches 18. Because the Council did not carry out an annual review, it was just over two years before the Council realised the mistake. It had continued to pay the allowance for the eldest child when she was no longer eligible.
19. Mrs G disputed the overpayment. She said she believed she would continue to receive an allowance for all the children until the youngest reached 18.
20. In any event, Mrs G does not think she should have to repay the overpayment as it was the Council’s mistake.

Consideration

21. The Special Guardianship Order Support Plan says the financial support “should remain in place until [the children] are 18 years old.”
22. This could possibly have been expressed more clearly, but there is no doubt about its meaning when the Plan is read alongside the Regulations which govern special guardianship allowance.
23. Regulations say financial support ends when a child reaches 18, unless he continues in full-time education or training, in which case it may continue until the end of the course or the training he is then undertaking. (Special Guardianship Regulations 2005, Regulation 9)
24. Payment for each child should stop when they reach 18, unless they are in full-time education or training, in which case it could continue until the end of the course. The Council should not continue to make payments for all the children until the youngest child is 18 as Mrs M believed.
25. Mrs G was paid a considerable amount of money to which she was not entitled. This happened because the Council did not review the support each year as it should have done. This does not, however, mean Mrs G is entitled to keep the overpayment. We would expect the Council to agree reasonable terms with Mrs G to reclaim the overpayment.
26. In response to my enquiries, the Council said Mrs G had already repaid approximately £7,500. This means the overpayment now stands at £16,500.
27. However, the Council also owes Mrs G £15,000 for the age-related increases she should have received (complaint 1a). Subtracting the amount the Council owes Mrs G from the amount Mrs G owes the Council means Mrs G only owes the Council approximately £1,500.
28. The Council has offered to write off this amount in recognition of the time, trouble and inconvenience its mistakes have caused. This means Mrs G now owes the Council nothing. I consider this a good outcome.

Complaint 2: support to secure suitable accommodation

29. Mrs G says the Council promised to provide support to secure suitable accommodation for the children when she applied for the Special Guardianship Order.
30. The Council said Mrs G could apply for a larger property because she is a Council tenant but explained that larger properties are in extremely short supply. The Council said it considered the family was suitable accommodated with their current property and the sleeping ‘pods’ for the children.
31. Mrs G says she paid for the ‘pods’ herself with backdated fostering allowance and £5,000 from her sister. She thinks the Council should contribute.
32. The Special Guardianship Order Support Plan says that Mrs G had already built the pods when the Council assessed the children’s support needs. The Plan does not promise any support to secure suitable accommodation. I do not uphold Mrs G’s complaint.

Complaint 3: pathway plans

33. Mrs G complains the Council has not completed pathway plans for the oldest children.
34. All eligible, relevant and former relevant children are entitled to advice and support from the Council once they reach 18. A Pathway Plan sets out the support to be provided in areas including health, education, employment, family relationships, independence, accommodation and financial needs. The support must be based on a needs assessment.
35. Eligible children are children who are looked after by the Council. Relevant or former relevant children are young people aged between 18 and 21 (or 25 if still in full-time education) who were looked after for a period of 13 weeks which began after their 14th birthday and ended after their 16th birthday. (Children Act 1989, s23A to 24D)
36. In addition, a young person aged between 16 and 21, who is (or was until 18) the subject of a Special Guardianship Order, and who was looked after by a council immediately before the Order was made, is eligible for advice and assistance. In exceptional circumstances, this may include financial assistance. (Children Act 1989, s24 and s24A)
37. The Council says it offered to complete a pathway plan for the eldest child, but Mrs G declined. A social worker provided support with housing, employment, finances and education instead. The Council says this is the same support that would be provided through a pathway plan, and has offered to complete a pathway plan if required.
38. The Council says Mrs G asked for financial support for the second eldest child to go to university. The Council said he was not eligible for financial support, but the Council offered advice and guidance. The Council says Mrs G declined. The Council has offered to complete a pathway plan if required.
39. Although the Council has not completed pathway plans for the eldest children, I am satisfied it has offered advice and support. Further, the Council has offered to complete the plans if either of the children (now adults) wants. I do not uphold Mrs G’s complaint.

Agreed action

40. We have published guidance on remedies for people who have suffered injustice as a result of fault by a council. The primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. A Council may also make a symbolic payment to acknowledge what could have been avoidable time, trouble and inconvenience.
41. The Council has reviewed the payments it made to Mrs G and calculated that it owes her approximately £15,000 for age-related increases it should have made to her special guardianship order allowance. The Council has agreed to subtract this from the overpayment it made for the eldest child.
42. Mrs G has already repaid approximately £7,500 of the overpayment. This means the balance she owes is approximately £1,500. The Council has offered to write off this amount in recognition of her time, trouble and inconvenience. This means Mrs G now owes nothing.
43. The Council has also said it will review the payments of another 250 children to make sure they have not been affected by the same issues.
44. I welcome the Council’s proposals.

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Final decision

45. I have completed my investigation. The Council was entitled to reclaim the special guardianship allowance overpayment for Mrs G’s eldest child. However, the Council should have made age-related increases to the special guardianship allowance it paid. The Council has re-calculated the payments and reduced the amount Mrs G owes. The Council has offered to write off the remaining balance, so Mrs G now owes nothing. The Council will also review the payments of other families to check they have received the correct allowance.

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Investigator's decision on behalf of the Ombudsman