Decision : Upheld
Decision date : 21 Sep 2021
The Ombudsman's final decision:
Summary: Ms X complains the Council has failed to provide sufficient support and information, including financial support, in relation to her special guardianship. She seeks compensation and service improvements. The Council is at fault and has caused injustice. It has agreed a financial remedy, service improvement and a review of its payments to Ms X.
- The complainant, who I refer to here as Ms, X complains that the Council:
- Failed to provide sufficient information regarding a financial review of her special guardianship allowance;
- Failed to provide her with the correct allowance, both before and after the Special Guardianship Order (SGO); and
- Failed to communicate and handle her complaint adequately.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I spoke to Ms X and considered information provided by Ms X and the Council. I shared this draft decision with both parties and considered their comments before finalising my decision.
What I found
Child Arrangement Order
- A child Arrangement Order is an order that states where a child is to live and with whom the child will have contact.
Special Guardianship Order (SGO) and special guardianship allowance
- A Special Guardianship Order is a court order which places a child or young person with someone who is not their parent and gives this person parental responsibility for the child. The person(s) with whom the child is placed becomes their special guardian.
- The Government has issued guidance on allowances for special guardians. This states that when calculating financial support council should have regard to the allowance that would have been paid had the child been fostered. Court decisions have also made clear that:
- there should be a close relationship between fostering allowance rates and special guardianship allowance rates;
- councils are expected to use national minimum fostering rates as a starting point for special guardianship allowances;
- councils must not pay special guardians less than foster carers without clear justification; and
- councils should be transparent about how they calculate financial support.
Children’s social care statutory complaints procedure
- The Children Act 1989 and its associated regulations sets out a three-stage procedure that councils should follow when resolving complaints about children’s services. Statutory guidance states that children’s services must follow this process unless there is a good reason not to. Special guardians can make complaints under the statutory procedure.
- Following proceedings in late 2019 a court placed Ms X’s one-year-old niece in her care via a child arrangement order. In February 2020 a court granted an SGO, giving Ms X parent responsibility for her niece. In October 2020 Ms X asked the Council to review her SGO allowance following her move to more expensive accommodation. Ms X says that she struggled to establish the correct process for submitting the review request to the Council as its website and staff lacked information on special guardianship allowances. She did not receive a response to her request within ten days and submitted a complaint about this.
- She also complained that she had not been paid an allowance from the time the child first came to live with her and February 2020, and that the allowance from February 2020 was inadequate. She said the Council was not treating her as equal to a foster carer, and that the Council had used the incorrect starting point to calculate her allowance. She said the national fostering network’s minimum allowance should have been used as a starting point.
- Three weeks later the Council reassessed Ms X’s allowance and agreed to pay her an increased amount from September 2020. However, it did not state explicitly how it had reached this amount.
- The Council did not consider the complaint under the statutory complaints process for children’s services. It apologised for failing to respond to Ms X’s emails and agreed that the information its staff provided to SGOs was insufficient. It said it would take action to ensure its post-permanency team was able to respond to questions about special guardians.
- It said Ms X had not received an allowance until the SGO as she had been caring for her niece under a private arrangement before then. It also said foster carers received the same amount as special guardians once child benefit has been deducted from the latter.
- Ms X then complained to us. She said she had received an allowance prior to the SGO but that this was less than the fostering allowance available. She said the Council had not updated its website and it was still difficult to access support from the relevant team. It had not confirmed to her that her allowance had been revised in September because of a shortfall in her housing allowance. It had carried out a further financial review, had taken months to provide an outcome and had then reduced her allowance without explanation. She felt the Council was wrong to deduct child benefit from her allowance, given that she was on income support.
- I take each of her complaints in turn below:
- Provision of insufficient information about the financial review
- The Council is at fault in the following respects:
- It has failed to update its website in a timely manner following Ms X’s complaint of October 2020, which highlighted the lack of information available to special guardians on the website. This meant she continued to struggle to access advice for longer than she should have;
- It failed to be sufficiently transparent with Ms X about how her allowance was calculated;
- It did not explain the purpose of the second financial review and took several months to provide an incorrect outcome.
- I recommended a payment for time, trouble and distress arising from the Council’s faults, to which the Council agreed. This is detailed below at paragraph 33.
- Failure to pay an adequate allowance before and after the SGO
- The Council is at fault. It has a blanket policy of deducting child benefit from all special guardians, including those on income support, and has not taken account of government advice or the Ombudsman’s recommendations. It has not provided justification for doing this.
- The Council agreed to consider whether it had any justification for deducting child benefit from Ms X’s allowance from 2019 onwards and to refund all the child benefit deductions for which a justification cannot be found. It also agreed to review its policy and establish whether other recipients of special guardianship allowances have had child benefit deducted without justification.
c) Failure to handle complaints and communicate adequately
- The Council has accepted that it incorrectly logged Ms X’s complaint as a corporate complaint and that the statutory procedure should have been used. It said it became aware of this following Ms X’s request for escalation from the first stage. It said it considered Ombudsman guidance, which advised against switching procedures part-way through. It recommended that if a complaint is accepted under the statutory procedure Councils should complete under that procedure.
- Ms X has provided me with numerous examples of emails that were not answered by the Council. It has accepted its communication has been poor at times.
- Ms X was denied the full three stage process because of a Council error. Had the complaint been managed properly, it is likely to have concluded sooner. This is an injustice to Ms X.
- Notwithstanding the Ombudsman’s guidance, in my view the Council should have offered Ms X the choice of switching to the statutory procedure at the point the error came to light. This is because only the first stage had been completed, making the switching process relatively simple. It would also have entailed switching Ms X into the statutory procedure rather than out of it as in the Ombudsman’s example.
- The Council has agreed that to remedy this injustice, the injustice arising from the Council’s poor communication and to compensate Ms X for her time and trouble generally, and for any distress caused, it will pay £600 to Ms X.
- Within one month of my final decision the Council has agreed that it will:
- Review all payments made to Ms X in relation to her niece and consider whether these are in line with Government guidance, court decisions and Ombudsman advice, and reimburse any shortfall. This review will include consideration of whether the Council had justification for deducting child benefit from Ms X;
- Pay Ms X £600 for her time and trouble in bringing the complaint and any distress caused; and
- Review its policy on deduction of child benefit from special guardians on income support and establish whether other recipients of special guardianship allowance have had benefits deducted without justification.
- I have completed my investigation with a finding of fault by the Council, which caused injustice to Ms X. It has agreed a financial remedy, a review of its decisions on special guardianship allowances and a policy review.
Investigator's decision on behalf of the Ombudsman