The Investigation

The complaint

5. Miss B complained about how the Council dealt with a special guardianship order for C. Miss B complained the Council:

• failed to give her proper advice or support when she agreed to a special guardianship order;

• failed to provide her with support to move to suitable accommodation when C came to live with her, in breach of the special guardianship order care plan; and

• delayed responding to her complaint.

6. Miss B says failures by the Council means she has been left to care for C without adequate support, has been left living in unsuitable conditions with C sharing her bedroom and has been put under significant stress. Miss B says the strain has also ‘collapsed’ her relationship with her mother and stepfather.

Legal and adminstrative background

The Ombudsman’s role and powers

7. 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)

8. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

Special guardians

9. Under a special guardianship order the courts appoint someone, often extended family members, like grandparents, to be a child’s special guardian who will then become responsible for all day to day decisions about the child.

10. Under the Special Guardianship Regulations 2005 (amended in 2017) the special guardian can ask councils for support This may include a special guardianship allowance (SGA). Any support, including financial, should be reviewed at least annually and could be removed. The starting point for calculating SGA, if a person qualifies for it under the Regulations, is the Council’s fostering allowance rate minus child benefit and child tax credit. These are deducted because the guardian can claim these benefits when professional foster carers cannot. The SGA is also means tested and the guardian may end up receiving no allowance at all.

11. After deciding to provide support services, councils must give notice of the decision to the special guardian, including reasons for it. Where it is to provide financial support, the notice must contain information about:

• the method used to decide the amount of financial support;

• the method of payment, frequency, period it covers and when it will begin;

• whether it is subject to conditions;

• the arrangement and procedure for review, variation and termination; and
• the Council's and special guardian's respective responsibilities.

12. Government guidance says special guardianship arrangements should not fail just because of financial problems. Financial support should be paid to help secure a suitable arrangement where this is not possible because of a financial obstacle.

13. Councils must prepare a special guardian support plan, to be kept under review. The plan should set out the services to be provided, the objectives, the timescales for provision, procedures for review and who will monitor the provision of the services in the plan. The plan should be written in a way that everybody affected can understand. Councils must share a draft of the plan with the special guardian and must consider the special guardian's representations before they finalise the plan. They must also consult the special guardian about any revision of the plan.

14. In our 2018 focus report ‘Firm foundations: complaints about council support and advice for special guardians’ we noted evidence of councils not being clear in special guardian support plans about the support to be provided.

The Council’s complaints procedure

15. The Council’s complaints procedure says stage one, two and three complaints will receive a response within 21 days. For stage three the procedure says the Council will advise the person complaining if more time is needed.

How we considered this complaint

16. We produced this report after examining relevant documents, discussing the complaint with Miss B and making targeted enquiries of the Council.

17. We gave the complainant and Council a confidential draft of this report and invited their comments. We considered the comments before making our final decision.

18. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

What we found

What happened

Special guardianship order

19. In 2018 the court granted a special guardianship order for C with special guardianship shared between Miss B’s mother and stepfather and Miss B. As part of the court order the Council agreed to undertake an assessment of Miss B's support needs once the family identified that C required a separate room even if that was before he moved permanently into Miss B’s care. That was because Miss B lives in a two-bedroom house with her adult son.

20. From the outset of the special guardianship order Miss B’s mother and stepfather provided primary care for C, with Miss B helping out. Miss B’s mother and stepfather received a special guardianship allowance.

21. In November 2019 Miss B contacted the Council to ask for support with housing. Miss B also asked for the assessment referred to within the special guardianship order support plan. As she had not received any response Miss B chased the Council in December 2019.

22. In January 2020 Miss B discussed with the Council her mother and stepfather’s difficulty managing C and the likelihood he would be transferred to her care full time. The Council discussed various housing options with Miss B. That included the Council funding an extension, the Council supporting Miss B's move to a three-bedroom property, Miss B and her mother swapping homes, Miss B's son moving out of the property and being provided with accommodation by the Council and for Miss B to convert the living room into a bedroom. Miss B was to consider those options.

23. Miss B initially discussed with the Council the option of her son moving into a Council property. The Council’s support worker discussed that with the housing department and told Miss B although her son could apply for social housing the Council could not provide any guarantee on timescales for him being offered a property. The Council suggested YMCA housing, which Miss B declined.

24. In March 2020 Miss B began caring for C full time. Miss B again asked the Council about housing options. Miss B reported difficulties working from home during COVID 19 while caring for C full time. That resulted in the Council applying for funding for a nursery place for C. The Council told Miss B it could not provide accommodation for her son given the pressure on housing due to homeless applicants being housed during Covid 19.

25. Miss B chased the Council about her housing situation in July 2020. In August 2020 the Council discussed arranging for the case to go to the support services panel to consider financial support for housing. The Council began completing a needs assessment for that in November 2020.

26. The needs assessment in November 2020 identified three options and discussed the merits of those options as follows:

• For Miss B’s son to move to his own property: the social worker recorded her view that this was not an appropriate solution. The social worker explained this was because Miss B’s son was a key support figure for Miss B and C. The social worker noted C already had attachment difficulties and Miss B’s son leaving would likely impact on his emotional and behavioural well-being.

• An extension to the current property: the social worker noted Miss B lives in a ground floor corner flat and the current floor plan does not lend itself to extending the property without significant remodelling. The social worker noted this option would not be economically viable as costs were likely to exceed £70,000 and would require planning permission and access to the property to complete the work.

• For Miss B to rent her property out and then rent a larger property.

27. Miss B says the Council suggested she provide details of the amount it would cost her to purchase a larger property, over and above what she had paid for her current two-bedroom property as this was Miss B’s preferred option. Miss B suggested she would need £95,000, which included moving and legal costs, to move to a new property. Miss B told the Council she would be happy for the Council to place a charge on the property to enable it to recover the £95,000 once the property was sold.

28. The Council’s panel declined the option of providing Miss B with financial support in February 2021. The panel noted there was nothing in writing to say the Council would provide financial support should Miss B have to care for C.

29. The Council wrote to Miss B to tell her the outcome of the panel meeting. The Council said it could not agree to pay £95,000 which it considered unrealistic as Miss B’s current accommodation was not considered overcrowded. The Council asked her to consider one of the other options.

30. Miss B wrote to the Council in March 2021 to explain why she did not consider the three options the Council had identified suitable. In response the Council offered a payment of £200 per month for one year to enable Miss B’s son to move out. Miss B declined that offer as she did not consider it would provide her son with any security. Miss B said she needed a five year plan to help her son into long- term accommodation or, alternatively, a lump sum as a deposit on a long-term home or an offer of social housing with an assured tenancy for her son. To support her case Miss B provided the Council with details of her son’s income and a hypothetical budget should he move into his own property.

31. In July 2021 the Council increased its financial offer. The Council offered a payment of £250 per month for the next five years for Miss B’s son to secure his own property. The Council also offered a one-off payment to support him moving into a new home. The Council offered Miss B £300 to reflect her time and trouble in pursuing the complaint. Miss B rejected that offer.

32. Miss B contacted the Council again in August 2021. The Council says Miss B asked for mediation with her mother and stepfather as the relationship was at breaking point, although Miss B says she did not ask for mediation. The Council arranged mediation which took place in October 2021 between Miss B and her mother. The meeting agreed various measures to attempt to improve their relationship. The Council also made clear during the meeting that Miss B was not entitled to a special guardianship allowance due to means testing. The Council suggested the option of Miss B’s mother and stepfather releasing some of the equity in their property to help Miss B financially while she was caring for C. That suggestion was made to Miss B though and was not discussed with Miss B’s mother or stepfather.

33. In October 2021 the Council asked Miss B’s mother and stepfather to complete an updated financial assessment for C as they were providing some care, although C was still living with Miss B. This was intended to address the financial issues. That financial assessment had not been completed by January 2022. By that time we had begun an investigation. In response to our enquiries the Council reiterated the offer it had made to Miss B in July 2021 which it says was a £9,000 lump sum and monthly payments of £250 for 60 months to help Miss B’s son find accommodation locally.

34. During our investigation the Council increased its offer to £30,000 which it said Miss B could use either to fund a deposit for a house or to support her son to move to a larger property.

Complaint process

35. Miss B put in a complaint in November 2020. The Council asked Miss B for a meeting to discuss her needs further and sent her a holding letter in December 2020. The Council did not respond to the complaint at stage one and instead completed the needs assessment and referred the case to the panel.

36. Following the panel the Council wrote to Miss B to explain its decision in February 2021. Miss B asked the Council to move the complaint to stage two. The Council explained it could not do that because it had not yet responded at stage one. The Council also considered Miss B’s letter more an appeal rather than a complaint. The Council closed stage one in April 2021 while it discussed financial options with Miss B.

37. Miss B raised a stage two complaint in September 2021 as she was not happy with the financial offer the Council had made. The Council responded to that in October 2021.

Conclusions

38. We have not investigated Miss B’s concerns about how the Council dealt with the initial special guardianship order. That is because the special guardianship order was granted in 2018, which is more than 12 months before Miss B’s complaint. We see no reason to exercise discretion to investigate that part of the complaint given Miss B could have complained to us at the time if she had concerns about any lack of support from the Council during the special guardianship order process. In any event, Miss B’s main concern is with how the Council has interpreted its responsibility to provide her with support when C came to live with her.

39. Miss B says the Council failed to provide her with support to move to suitable accommodation when C came to live with her, in breach of the special guardianship order care plan. Having considered the special guardianship order and the care plan it is clear the Council did not make a commitment to provide financial support to enable Miss B to pursue alternative living arrangements. Instead, both the special guardianship order and the care plan said the Council would undertake an assessment of Miss B’s support needs once the family identified C required a separate room even if that was before C moved permanently into Miss B’s care. We appreciate Miss B has interpreted that as meaning the Council would provide her with financial support. However, that is not what the order or the care plan states.

40. Having said that, the report produced for court for the special guardianship order refers repeatedly to Miss B’s living circumstances. In some instances the report suggests the Council will support Miss B with a move to a new property and in other sections it implies Miss B will be responsible for that. It is clear Miss B believed the Council would provide her with financial support to enable her to accommodate C in a separate bedroom. Given the confusion in the report we consider the Council at fault for failing to manage Miss B’s expectations about the type of support, including financial support, it could potentially offer once C moved into Miss B’s care. The Council should have clarified that with Miss B at the time and failed to do so.

41. We are also concerned about the Council’s delay in completing the needs assessment. The court order was clear the needs assessment could take place before C moved into Miss B’s care full-time. Miss B first asked for a needs assessment in November 2019. However, the Council did not complete the needs assessment until November 2020. That delay is fault.

42. We also have concerns about how the Council considered Miss B’s initial request for financial support. As we said in the previous paragraph, the Council produced a detailed social work assessment in November 2020. That assessment was considered by panel in February 2021. We have seen no evidence to suggest the panel properly considered the report produced. We say that because there is no reference in the decision sheet from that meeting to the recommendations the social worker put forward. Instead, the panel relied only on the fact the original special guardianship order did not commit the Council to provide specific funding. Given the social worker had produced a detailed report we consider the panel should have taken into account the content of that report and addressed the issues raised in it. Failure to do that is fault. We are particularly concerned about that in this case because the social work report dealt specifically with the welfare of C and the impact on C if Miss B’s son moved out of the property. Given the way in which the Council recorded its decision from the panel meeting we are not satisfied the panel took into account the welfare of C when refusing to provide Miss B with financial support.

43. We are satisfied though that following the panel meeting the Council engaged in mediation with Miss B to discuss alternative options. As a result of that mediation, and now the complaint to us, the Council has made various financial offers to Miss B to support her son moving out of her property, which will enable C to move into the second bedroom. Initially we were concerned about the Council’s suggestion of financial support to enable Miss B’s son to move out given this was specifically ruled out as an option in the social work report for the panel. However, Miss B has since said she is willing to consider a financial package to enable her son to move out and live locally so he can still provide her with support. It is also clear the Council’s calculation of that support is based on evidence Miss B submitted about her son’s income and ability to support a rent or mortgage in a new property. In those circumstances we cannot criticise the Council for deciding to offer support for that option rather than the more expensive option of funding Miss B’s move to a larger property.

44. The amount the Council has offered is significant, although we appreciate it falls short of what Miss B considers appropriate. We are concerned though that while the Council has used Miss B’s figures to calculate an offer it has not been clear about why it has selected the amounts it has identified. In addition, the amount the Council has offered to Miss B has changed several times, including during our investigation. That does not create any confidence the Council has properly considered the amount necessary to support Miss B. That is also fault.

45. That said, the latest offer from the Council of £30,000 to either fund a deposit for a house for Miss B’s son or to support Miss B to move to a larger property is a significant amount. The documentary evidence we have seen satisfies us Miss B was seeking an amount from the Council which would cover five years support for her son in his own accommodation. We consider £30,000 sufficient both to enable Miss B’s son to secure a property and to provide him with financial support to help him cover a monthly rent or mortgage over a five year period. By that time Miss B’s son would be around 30 years of age and would therefore likely have moved out of Miss B’s property in any case. So, while we consider there is significant fault in this case we consider the financial offer the Council has now made is satisfactory remedy to enable Miss B to provide a bedroom for C.

46. The Council accepts there were delays responding to the complaint at both stage one and stage two, although the Council points out stage two was delayed due to mediation taking place. Failure to respond to the complaint within the timescales set out in the Council’s complaints procedure is fault.

Injustice

47. As a result of the Council’s actions Miss B has suffered considerable frustration and has had to share her bedroom with C for longer than she should have. Miss B has also had to go to significant time and trouble both to secure a financial offer from the Council and to pursue her complaint.

Recommendations

48. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

49. The Council has agreed to take the following action to remedy the injustice identified in this report:

• write to Miss B and apologise for the above fault;

• pay Miss B £30,000 to allow her to source and secure alternative accommodation for either her family or her son so she is able to provide a separate bedroom for C;

• pay Miss B £500 in recognition of her time and trouble;

• review how it agrees and arranges special guardianship order care plans to ensure the plan makes clear the support, including financial, the council will provide and to ensure officers are aware of the need to follow the provisions within the care plan; and

• carry out training for members of panels that consider requests for special guardianship order payments to ensure they are aware of the need to consider any social work report completed and record the reasons for its decisions where it decides not to follow the social work recommendation.

Decision

50. We have completed our investigation into this complaint. There was fault by the Council which caused Miss B an injustice. The Council will take the action identified in paragraph 48 to remedy that injustice.

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