Decision : Upheld
Decision date : 01 Dec 2021
The Ombudsman's final decision:
Summary: Mr X complained the Council wrongly reduced the amount of his Residence Order Allowance in 2016 and continued to pay the wrong amount until 2020. He complained the Council failed to carry out means testing during this period and declined to backdate his allowance. Mr X says the Council’s actions caused him a lot of avoidable distress and financial hardship. Following our enquiries, the Council agreed to make a backdated payment to Mr X. We found the Council to be at fault. It has agreed to apologise to Mr X and make a payment to recognise the injustice caused.
- Mr X complains about the financial support provided to him in relation to a Residence Order regarding his grandchild. Mr X says the Council agreed the amount of the Residence Order Allowance payments and complains the Council wrongly reduced his allowance in 2016.
- Mr X complains the Council did not carry out means testing from 2016 to 2020 and did not backdate payments for this period following a financial assessment in 2020. He says the Council’s actions caused him a lot of avoidable distress and financial hardship.
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)
- 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)
- We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
- we could not add to any previous investigation by the organisation, or
- further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
- 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)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
- I discussed the complaint with Mr X and considered the information he provided.
- I made enquiries to the Council and considered the information it provided.
- I also considered the statutory guidance for local authority children’s services on representations and complaints procedures, and our own published guidance for practitioners on the children’s statutory complaints process.
- Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
What I found
Looked after children
- Where a council has significant concerns about a child’s safety and wellbeing, it can apply to the Court for an Interim Care Order making the child ‘looked after’. That means the council shares parental responsibility with the child’s parents and can decide where the child should live.
- The council can accommodate the looked after child by:
- making an arrangement with any person with parental responsibility for the child; or
- if this is not possible, placing the child in a placement with a relative, friend or other person connected with the child, a local authority foster carer, or a children’s home.
Residence Order (now called a Child Arrangements Order)
- A Residence Order is made by the court and sets out who a child should live with. Council’s may provide financial support to a person with a Residence Order; this is called a Residence Order Allowance. The allowance is discretionary and usually means-tested. Councils have the power but are not under a duty to pay it. It is usually only paid where the child was previously fostered or on the verge of becoming a looked after child.
The statutory complaints procedure
- There is a formal procedure, set out in law, which councils must follow to investigate complaints made by looked-after children and children in need. This procedure applies to complaints made by parents or carers of these children. The procedure involves three stages:
- Stage one - local resolution by the Council. This stage takes between ten and twenty working days.
- Stage two - an investigation by an independent investigator who will prepare a detailed report and findings to which the council must respond. The independent investigator does not line manage anyone involved in the complaint. If a complainant is still dissatisfied after stage two, they have the right to ask for their complaint to be considered at stage three. A stage two investigation for a complex case should take no more than 65 working days.
- Stage three - consideration by an independent review panel which may make further recommendations. A review panel should begin within 30 working days of the request.
Guidance for practitioners
- We published guidance for practitioners on the children’s statutory complaints process in March 2021, “Children’s statutory complaints process – Guide for practitioners”. I acknowledge this guidance was not published at the time of the events relating to this complaint. However, the guidance has been published to provide clarity in circumstances such as these.
- Mr X’s daughter had a child, Child A. Mr X says his daughter was unable to look after Child A due to her personal circumstances. He says the Council told him it was possible Child A would be taken into care unless he and his wife, Mrs X, looked after them. Mr X says he and Mrs X agreed to look after Child A until his daughter was able to care for them.
- Mr X says he began looking after Child A in 2011. He says at about this time, the Council helped him to obtain a Residence Order and told him it would provide financial assistance at the minimum foster care allowance rate while Child A was living with him, or until they finished school.
- Mr X says that in 2016, the Council reduced the amount of financial assistance it provided to less than half the initial amount. He says the Council told him over the telephone the reduction was due to financial cutbacks. Mr X says he asked the Council to review the amount it paid him because it was lower than the minimum foster care allowance, and that he asked the Council to carry out a means-test for him. Mr X says the Council declined his request.
- Mr X’s daughter passed away in 2019. Mr and Mrs X continued to look after Child A.
- Mr X says he contacted the Council sporadically during the period 2016 to 2020 to ask for a means test, as he says he was struggling financially. He says he accrued large debts as a result and was unable to cope effectively with the situation due to his deteriorating mental health. Mr X says he was extremely worried about the debts he incurred and the possibility this may lead to him losing his house. Mr X says he agreed to an individual voluntary arrangement (IVA) to pay back his debts over a period of time. Mr X says he contacted the Council to ask for financial assistance, but the Council declined.
- Mr X says he complained to the Council periodically throughout 2016 to 2020 about its reduced financial assistance but did not make an official complaint. He says this was because he was worried the Council would stop paying the remaining allowance to him as it told him it did not have to pay him anything. Mr X says he was suffering from poor mental health at the time due to increasing debts and the worry that he may lose his house.
What happened next
- Mr X says the Council carried out a financial assessment in January 2020. Following this assessment, the Council issued its decision on 23 March 2020 and told Mr X it had increased its payments to about the same amount as previously paid.
- On 22 April 2020, Mr X made an official complaint. He said the Council had not previously carried out any means tests and had failed to provide appropriate financial support since 2016. He said this resulted in him incurring increasing debts which had led to him entering into an IVA. Mr X said that following the financial assessment in January 2020, a Council officer had told him he should have been receiving more funding.
- The Council responded to Mr X’s complaint on 7 May 2020. It said it was “not duty bound to financially support children who are subject to a Residence Order”, and said it had “extended exceptional support” to help Mr X with caring for Child A. The Council said the financial support it was providing was outside its legal obligations.
- The Council said it carried out a means test which resulted in the financial support provided during the period 2016 to 2020. It said it was unable to find evidence Mr X had requested a further means test during this period. The Council said it had recently contacted Mr X because it was reviewing its allowances, and that as a result, it had completed a financial assessment. It said this resulted in an increased weekly payment.
- Mr X replied to the Council on 23 May 2020. He said he had agreed to the revised amount of the allowance but had asked for this to be backdated to 2016. Mr X said he had not been able to manage on the reduced allowance paid from 2016 to 2020 and that the Council had refused his requests for further means testing during this period.
- On 17 June 2020, the Council provided its response. It confirmed the current amount of the allowance and said it had backdated the amount to the date of its financial assessment decision, 23 March 2020. The Council maintained it had “no legal duty to financially support Connected Persons who hold a Residence Order”. It said the Council had recently changed its policy regarding payments and had “invested in staffing to ensure that means testing is completed on an annual basis”. It said this was a recent change and “was not historically a requirement”.
- Mr X responded to the Council on 6 July 2020. He said in 2011, the Council agreed to provide him with financial support at the same rate as kinship care allowance, but then reduced this support in 2016. Mr X said he had asked the Council to put this right ever since and that the Council should have carried out means tests every 12 months.
- During August and September 2020, the Council asked Mr X to provide further information relating to his family’s income as part of its review of the payments made from 2016 to 2020.
- On 5 January 2021, the Council wrote to Mr X and said it would not backdate the revised allowance to 2016. Mr X replied on the same day and said he was extremely unhappy with the outcome and the length of time the Council had taken.
- The Council responded on 7 January 2021. It said it had made changes to the way it managed allowances, including Residence Order allowances in 2019, in line with government guidance. It said the premise for the change was that allowances would normally be paid for two years after the making of the Order, and that after this, it expected children to be financially supported in the same way as other children.
- The Council said it carried out a financial assessment at Mr X’s request, and this resulted in the increased payment. It said although Mr X had asked for this to be backdated, he had not provided “full documentation” to support his request for the period 2016 to 2020. The Council also said it was under no statutory duty to provide financial support for “Connected Persons who hold a Residence Order”.
- The Council said it found no evidence Mr X had contacted Children’s Services between 2016 and 2020 to request a means test but acknowledged it had not contacted Mr X during this period either. The Council apologised for not carrying out a means test for this period.
- Mr X replied on 25 January 2021. He said the Council was supposed to carry out means testing every 12 months and it was not his responsibility to ask for one. He asked the Council to review its decision not to backdate the revised allowance to 2016.
- The Council responded on 29 January 2021 and told Mr X it had escalated his complaint to stage three of its corporate complaints procedure.
- The Council provided its stage three response on 8 March 2021 and set out the timeline of events regarding Mr X’s complaint. It said that following a review of its policy in 2020, it was now the case that the Council should carry out means testing every 12 months. It said however, this was not a requirement between 2016 and 2020. It told Mr X “that despite any assurances made to you in 2011 as part of or following proceedings, [the Council’s] Childrens Services had been supporting you financially outside of its legal obligations. Your financial support package reduced in 2016 in line with the Policy at the time, and you were re-assessed in 2020 in line with new Policy guidance.”
- The Council apologised to Mr X for providing “confused communications over the topic of means testing, and the Local Authority’s requirement to have completed this during 2016-2020”. The Council offered Mr X a payment of £250 in recognition of the uncertainty and raised expectations caused through unclear communications, and a further £250 in recognition of the time and trouble taken in bringing the complaint.
- On 24 March 2021, Mr X told the Council he did not accept the stage three response or the offer of payment.
- Mr X remained dissatisfied with the Council’s response and brought the complaint to us.
The period under investigation
- I have exercised discretion in investigating Mr X’s complaint back to 2016 on the basis of Mr X’s poor mental health at the time. I acknowledge Mr X’s explanation that his mental health was such that he was not able to make a formal complaint earlier.
- Following our enquiries, the Council has reconsidered its position regarding the level of funding provided to Mr X for the period 2016 to 2020. It acknowledges that allowances payable to individuals who have residence orders are discretionary payments and confirms it has continued to pay Mr X “an allowance of a type” during the period in question.
- However, the Council says it considers it had a responsibility to undertake means testing and acknowledges it is unable to provide evidence it carried out means tests for Mr X from 2016 to 2020. It says it is also unable to provide a copy of its policy for this period, as referred to in its stage three complaint response.
- The Council says it is also unable to provide copies of correspondence to Mr X regarding the means testing process and cannot provide evidence of the changes or differences in the policies that were in place at the time. It says there is also limited evidence of Mr X’s contacts with the Council during this period.
- Having reviewed the complaint again, and with consideration to our enquiries, the Council says it considers that settling the complaint by way of a remedy is appropriate. Following our enquiries, the Council requested additional information from Mr X to carry out a further financial assessment. It has since provided us with evidence of its calculations. As a result of the most recent financial assessment, the Council has offered Mr X a payment to address the reduced allowance for the period 2016 to 2020.
- Mr X says he accepts the Council’s offer.
- The Council also offered to make a payment of £500 to Mr X in recognition of the time and trouble and distress caused to him.
- Given the outcome of the Council’s further investigation of the complaint, I have not investigated the actions of the Council during the period 2016 to 2020. This is because I consider it is unlikely we could add to the Council’s most recent findings.
- It is positive the Council has acknowledged its responsibilities to Mr X regarding the issue of means testing. It is also positive the Council has carried out a further financial assessment to determine the appropriate level of funding to Mr X for the period 2016 to 2020. We welcome the Council’s findings and Mr X’s acceptance of the Council’s offer.
- However, it is noted the Council’s decision has arisen as a result of our enquiries rather than as part of its own complaints investigation. The Council’s failure to identify these issues sooner is fault, particularly as the Council’s position remained unchanged throughout its own three-stage complaints investigation.
- In addition, the Council did not investigate Mr X’s complaint under the statutory complaints process. As per our published guidance, and the statutory guidance “Getting the best from complaints”, Mr X’s complaint about a function of the local authority under Part 3 of the Children Act 1989 required the Council to consider the complaint under the statutory process. Its failure to do this is fault.
- Having identified fault, I must consider if this caused a significant injustice to Mr X. The injustice to Mr X is a loss of opportunity to have his complaint investigated by an independent investigator and review panel, with the uncertainty of whether they may have reached a different conclusion. In addition, I acknowledge Mr X’s comments regarding the detrimental impact to his mental health, and the financial loss caused by the reduction in his allowance. However, as the Council has now revisited its investigation of the complaint, has identified errors within the process and has offered Mr X the remedy he was seeking, this offers some mitigation towards the injustice identified.
- To address the injustice caused to Mr X, the Council has agreed to take the following action within one month of the final decision:
- Provide an apology to Mr X;
- Make a payment of the amount calculated following the last financial assessment to Mr X to address the reduction in the allowance paid to him for the period 2016 to 2020;
- Make a further payment of £500 in recognition of the distress and time and trouble caused, and
- Remind its staff to consider complaints about children’s services via the statutory complaint process as required.
The Council is required to provide us with evidence it has complied with the above actions.
- I have found fault by the Council and the Council has agreed to take the above action to remedy the complaint. I have therefore concluded my investigation.
Investigator's decision on behalf of the Ombudsman