West Northamptonshire Council (22 001 038)

Category : Children's care services > Friends and family carers

Decision : Upheld

Decision date : 23 Aug 2022

The Ombudsman's final decision:

Summary: Mrs X complained the Council fixed the amount of Special Guardianship allowance she received for her two grandchildren, and did not include yearly or age related increases, which is against statutory guidance. The Council is currently remedying the matter with plans to implement a new policy. But there is wider injustice to others due to this fault, and the Council has agreed with our recommendations to provide Mrs X with an apology and to backdate payments to other Special Guardians similarly affected by this issue.

The complaint

  1. The complainant, whom I shall refer to as Mrs X, complains the Council does not award yearly or age-related increments to the Special Guardianship allowance that is awarded to her in respect of her two grandchildren, which breaches statutory guidance as it should be in line with what foster carers receive.
  2. While it does not cause her substantial hardship currently, once her grandchildren reach 11, she will lose out on a significant amount of money. She also does not understand why the Council has not reviewed its policy before now.

Back to top

The Ombudsman’s role and powers

  1. 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)
  2. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  3. If we are satisfied with an organisation’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)
  4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

  1. I discussed the complaint with Mrs X and considered her views.
  2. I made enquiries of the Council and considered its written responses and information it provided.
  3. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law and policy

Special Guardianship Orders and Allowances

  1. Special Guardianship is an order made by the Family Court that places a child or young person to live with someone other than their parent(s) on a long-term basis who will then become responsible for all day-to-day decisions about the child. The person with whom a child is placed will become the child’s Special Guardian.
  2. The Special Guardianship Regulations 2005 (amended in 2016) and the Special Guardianship Statutory Guidance set out the arrangements for financial and other support for Special Guardians. Councils are required to substantially follow this unless there are good reasons to do differently. The Guidance says that, in determining the amount of ongoing financial support, a council should have regard to the amount of fostering allowance that would have been payable if the child were fostered.
  3. Case law has further considered this matter. In 2010, the Court (R v Kirklees Council) found paying Special Guardianship allowance as a fixed percentage of fostering allowance without any justification did not comply with the Guidance and was unlawful and that councils should pay at an equivalent rate to foster carers. A second case in 2012, (R v London Borough of Merton) found that councils should use the National Fostering Network’s minimum allowances as a starting point for calculation. The Court held that Merton Council had not produced any reasons for not complying with Guidance and so the decision to adopt a level of Special Guardianship Allowance at two thirds of the Network’s minimum was unlawful.
  4. We have issued two focus reports about this area of council activity: “Family Values: Council services to family and friends who care for others’ children” (2013); and “Firm Foundations: complaints about council support and advice for special guardians” (2018). In these we draw on lessons from complaints, including those where councils did not set out clear guidance on how they calculate Special Guardianship Allowances and had faulty policies.

Background to the Council

  1. In 2018, Northamptonshire County Council (NCC) declared itself “effectively insolvent” and was abolished in April 2021. It was replaced by two unitary authorities, one of which was West Northamptonshire Council, and a separate, independent Children’s Trust.
  2. Northamptonshire Children’s Trust (NCT) delivers children’s social care on behalf of West Northamptonshire Council.

What happened

  1. In November 2021, the courts granted Mrs X and her husband a Special Guardianship (SG) Order for their two grandchildren.
  2. Mrs X stated she received the plan which said SG allowance was a non means-tested, weekly fixed amount until the children reached 18. She queried this and the Council said it was in line with its policy, with the amount being based on the fostering allowance set at the time the SG Order was made. It was its belief this was a generous allowance and there would be further administrative costs to monitor and raise this in increments.
  3. In December 2021, Mrs X complained to the Council that the allowance went against statutory guidance by not including annual or age increments, referring to previous Ombudsman decisions and reports on the issue. She went through two stages of the Council’s Corporate Complaints procedure and asked for confirmation her SG allowance would rise in line with fostering allowances as her grandchildren get older.
  4. In March 2022, the Council’s final response to Mrs X said it had correctly applied its Special Guardianship Allowance 2016 policy in her case, but acknowledged the policy required a review in consideration of statutory guidance as it did not include annual cost of living or age related uplifts, in line with fostering allowances.
  5. The Council understood Mrs X wanted to receive the increases so her grandchildren would receive their full entitlement now and for the future, but it could not commit to this. It said the review of policy was ongoing and it would update her as the work is completed. It referred to the complexities of the review and any changes would affect SGs granted in or after the financial 2022/23 year.
  6. It also offered £100 for her time and trouble to Mrs X, acknowledging delay in its complaint process; she escalated her Stage Two complaint in December 2021 and received a response in March 2022, which was outside of the 20 working day timescale in its Complaints policy.
  7. In April 2022, Mrs X complained to the Ombudsman as she remained dissatisfied. She recognised the Council had agreed to amend its policy; however she was concerned any update related to increases would not apply to her family and no further timescales for this review had been given since.
  8. I asked the Council to provide the reasoning for its policy. It said its current policy was written in 2016 by Northamptonshire County Council (NCC) and when NCT was established in November 2020, there had been a review of all NCC policies to identify where revision is necessary. It had now established the policy is not compliant and so is undertaking a review.
  9. The Council said the policy was reviewed in 2017 and 2019 within the NCC but not approved through the appropriate Cabinet process and therefore withdrawn, so it was unable to implement a new policy as intended due to financial restrictions at the time.
  10. In response to my enquiry about the review’s current progress, the Council said the amended policy is in draft form, to be signed off by August 2022 and would be backdated to April 2022.
  11. I reviewed the Council’s Finance Guidance for Foster Carers dated April 2022, and noted it increased the weekly allowance given to foster carers by around £75 once a child turned 11. In contrast to Mrs X under an SGO, there was no increase.

Analysis

  1. The Council’s policy applied to Mrs X’s SG allowance is against statutory guidance and the principles established in caselaw; the rate a Council sets for it should be in line with fostering allowances.
  2. While the Council’s fostering allowance rates increase annually, with further increases once a child turns 11, Mrs X’s SG allowance rate was to remain fixed. This would have created a widening gap between the two allowances over time and by freezing the amount for Mrs X, she would get significantly less financial support for her grandchildren compared to a foster carer. This is unfair and treats SGs less favourably than foster carers.
  3. Although the Council said the policy was reviewed in 2017 and 2019 but was not approved; it did not say what changes were proposed at the time. The policy remained and the Council did not provide an explanation to justify why it was not in line with statutory guidance in the first place. In general, financial restrictions should not be a barrier, however I accept in this case it had adopted the policy from NCC after its restructure, so it is reasonable why it was unable to specifically answer this.
  4. The current review of the Council’s policy was prompted by Mrs X’s complaint, but it should have been amended in 2013 after the Ombudsman’s first report on this issue. This highlighted the need for councils to examine its SG policies with proper and effective scrutiny, to ensure rates are being paid in accordance with statutory guidance and promoted good practice. A further report was issued in 2018. I acknowledge the Council has taken responsibility for the policies it has taken from NCC; but regardless, the current policy is outdated and has fallen below the expectations of our reports for many years, and therefore I find fault.
  5. However, to its credit, the Council has accepted it needs to bring its SG allowance policy in line with case law and guidance and is currently working towards achieving this.
  6. In assessing injustice, Mrs X was aware when she raised her complaint that she was minimally affected now with the current policy, but she would lose out significantly as the years went by without the increases. This will be remedied with the proposed policy change which will benefit her in the future. Additionally, the Council has already offered Mrs X £100 for her time and trouble in pursing her complaint, so I do not consider a further personal remedy is necessary.
  7. A key point I noted is this also raised wider concerns for all SGs affected by the Council’s flawed policy, with this fault causing injustice to others.
  8. The Council initially said it would backdate its new policy to SGOs granted from 1 April 2022, but in light of my recommendations, it has agreed to implement it for all SGs from 1 April 2021, which is the date the new Councils were established. Taking the history of the situation into consideration, it was proportionate and reasonable to ask the Council to remedy injustice to others arising from that time forward, not before.

Back to top

Agreed action

  1. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
  2. Within one month of the final decision:
    • Provide Mrs X with a further written apology for its error in Special Guardianship allowance practice and delay in implementing the new policy.
  3. Within three months of the final decision:
    • Implement a new policy for Special Guardianship Allowances in light of the statutory guidance, caselaw and our focus reports, with future changes to apply to Mrs X and send a copy to Mrs X;
    • Identifies all other Special Guardians affected by this fault since 1 April 2021; and
    • Apply the revised policy to all Special Guardians and backdate payments to them accordingly from 1 April 2021.

Back to top

Final decision

  1. I find the Council recognised its Special Guardianship Allowance policy was not compliant with statutory guidance and case law and has taken steps to change this, but this fault has caused wider injustice to other Special Guardians. The Council has agreed with our recommendations to remedy this and I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings