Summary: Ms X complains the Council was at fault in how it dealt with her concerns about her nephew’s welfare, supported her to make a Special Guardianship application to care for him and decided her Special Guardianship Allowance application causing distress. We have found no evidence of fault in the way the Council dealt with these matters. So, we have completed our investigation.

The complaint

1. I have called the complainant Ms X. She complains there were failings in the way the Council dealt with her concerns about the welfare of her nephew, Y while he was in the care of his mother in 2015 and 2021. Ms X also complains there were delays in providing support and financial help when Y moved to live with her causing distress to Y and the family.
2. Ms X says there were failings in the way the Council supported and dealt with her application to become a Special Guardian for Y. Ms X says the Council reneged on its comments to the court about providing financial support to her causing distress and financial hardship.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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)
7. 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)

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What I have and have not investigated

8. I have investigated Ms X’s complaints about the Council’s response to concerns about Y’s welfare from 2021 and her concerns about the Council’s support of a Special Guardianship Order. I have not investigated any complaints Ms X may have about the Council’s response to concerns about Y in 2015. This is because Ms X’s complaints about this time are late. It was open to Ms X to have raised any complaints about the Council’s response and outcomes with us before now.
9. I have however referred to matters in 2015 to provide background to the issues raised in 2021.

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How I considered this complaint

10. I read the documents provided by Ms X and I discussed the complaint with her on the telephone. I read the documents the Council provided in response to my enquiries.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Private Family Arrangements and Special Guardianship Orders

12. A private family arrangement is where a child lives with a close family member such as a grandparent by arrangement between the parent and the family member. The parent is still responsible for the child financially and the new carer is not automatically entitled to support from the Council. The parent does not have to notify the Council about a private family arrangement.
13. In some circumstances a council, which is on the verge of having to provide accommodation for a child, may be able to 'side-step' that duty by helping to make a private family arrangement. Usually, a private family arrangement will come about as the result of clear discussions between the proposed carer and either the child's parent(s) or a person with parental responsibility. (London Borough of Southwark v D [2007] EWCA Civ 182)
14. The Southwark case held that if a council wishes to play some role in making a private arrangement, it must make the nature of the arrangement plain to those involved. If it is facilitating a private arrangement, it must make it clear to the proposed foster carer that they must look to those with parental responsibility for financial support. And must explain that any financial assistance from public funds will be a matter for the council’s discretion.
15. 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. The person with whom a child is placed will become the child’s Special Guardian.
16. Government guidance on the Special Guardianship Regulations sets out the circumstances in which councils should provide financial support to a Special Guardian. These include situations where there is a financial obstacle to a guardianship arrangement being made, and where the child requires special care. There is no overall obligation on councils to provide support in every case in which a Special Guardianship Order (SGO) is made.
17. Financial support is referred to as special guardianship allowance (SGA). Any support, including financial, should be reviewed at least annually.
18. Regulation 13 requires the Council consider:
• The special guardian’s financial resources including any tax credit or benefit available to them.
• The amount required by the special guardian in respect of reasonable outgoings, commitments, and daily living expenses (but not outgoings in respect of the child)
• The financial needs that relate to the child and resources of the child.
19. SGA is means tested and the guardian may end up receiving no payment.

What happened in this case

Background information

20. Y lived with his mother Ms Z and grandfather Mr Z. Y’s father lived in a different country and had limited contact with him. The Council received a referral about Y in 2015 from his school and contact from Ms X and Mr Z. They raised concerns about Y’s health alleging Ms Z neglected him due to her mental health. The Council agreed to carry out a single assessment on Y because it considered him at risk of significant harm. A council uses a single assessment to determine and agree what should happen to a child, their support needs and how a parent may respond to these.
21. The family were willing to engage with the Council’s Early Help services to ensure Y’s needs were met and drew up a family agreement in August 2015. This aimed to support Ms Z and the family agreed to adhere to it while Ms Z received help for her mental health. The agreement included Y being able to visit family members for overnights, weekends and holidays as agreed with Ms Z and family members. Ms X was part of the family agreement and signed the document.
22. The single assessment found the concerns raised did not meet the Council’s safeguarding threshold for intervention as the concerns were minimised with the family able to support Ms Z in Y’s care. So, it was recommended the family transfer to Early Help services for low-level support to manage Y’s transition back to Ms Z’s full-time care following her discharge from mental health treatment. The Council closed the referral as it considered Y was no longer at risk of significant harm.

Events in 2021

23. Ms X contacted the Council in August 2021 to raise concerns Y was neglected and malnourished. Ms X said Y lived with his mother and grandfather but came to stay with her at weekends and holidays under an agreement.
24. The Council carried out a single assessment, strategy discussion and agreed a child protection medical for Y. The assessment found Ms X had not seen Y for about a year and a half due to the Covid-19 pandemic. Ms X had seen Y in July 2021, he was currently staying at her property and refusing to return home. Y returned to visit his mother but due to an incident with Ms Z, Ms X took Y back home with her and contacted the Council’s Multi Agency Safeguarding Hub (MASH).
25. A social worker visited Ms X to carry out a preliminary assessment visit. Ms X explained her concerns about Y and wanted a shared care arrangement so she could ensure Y’s needs were being met. Ms Z was back in hospital due a decline in her mental health. Y’s grandfather lived with Ms Z and Y but had not intervened to safeguard Y from any neglect. Mr Z said Ms Z had not followed the family agreement for a year and a half and he could not care for Y due to old age and ill health.
26. The Council held a family network meeting with Ms X and Mr Z a few days later to discuss how to support Y. Ms X said MASH advised the Council could apply for a Special Guardianship Order for her. Ms X wanted this to share parental responsibility with Ms Z. The Council told Ms X she needed to seek a private SGO as it was a family matter and to gain legal advice. Ms X asked the Council to support her in applying for an SGO.
27. A social worker visited Y at home with Ms X and her family in September 2021. The notes record Ms X wanted a SGO, so Y was ‘safe’.
28. The Council asked for Y to be seen by a GP who considered Y underweight with delayed speech and other signs of neglect. The Council noted Ms X was:
• caring for Y under ‘what is assumed to be a private family arrangement’.
• there was no person to exercise parental responsibility, and
• Ms Z may ask for Y to be returned to her care once discharged from her treatment.
29. The Council completed an assessment in October 2021 to decide how to ‘best support the family to ensure Y’s safety’. The assessment noted Y lived with Ms Z and Mr Z until ‘recently when Ms X took him to live with her’. The assessment found Y suffered neglect from Ms Z while she was unwell, and she was not always able to identify when she was unwell and neglecting him.
30. Y remained with Ms X who was a safety factor for him, and she had agreed to care for him on a long-term basis. The assessment noted ‘this is a private family arrangement’. But due to the long-standing reoccurring nature of Ms Z’s health the family should be transferred to the fostering team. This would be to support Ms X in making a private application for an SGO to ensure Y’s safety and her to have parental responsibility for Y.
31. The fostering team closed the case in November 2021 as it noted it was not a private fostering arrangement but a private SGO.

Events in 2022

32. In February 2022 Ms X contacted the Council as she felt it was not supporting her with the SGO application. The Council noted Ms X wanted the Council to take the lead and go to court with the application. The Council said it would not do so as it was a private application. But it was paying the costs of the application and officers were supporting Ms X to make her application.
33. Ms X complained the Council in August 2022 Y had been living with her for a year and she had not received any financial support. This was despite the Council being aware of Y in 2015, the agreement it put in place that Y would stay with her for weekends and holidays, and decision Y should live with her from August 2021.
34. The Council responded to Ms X’s complaint in September 2022. It said the case notes from August 2021 showed Ms X raised concerns about Y and he was in Ms X’s care while the Council assessed the matter. Ms X was seen as a protective factor for Y and could meet his basic care needs. Ms X expressed interest in securing a SGO for Y because he was unsettled as he could be removed from her care due to living with her under a family agreement.
35. Managers considered Y’s case and noted he was already in the care of Ms X when the case came to the Council’s attention in 2021. The Council considered it was best for Y to remain Ms X’s care indefinitely and for it to support her with a private SGO application to provide the stability Y needed. The Council offered financial support towards the costs of the application.
36. The Council did not uphold the complaint as it said Y was in Ms X’s care in 2021 when Children’s Services became aware of concerns about Ms Z’s mental health. Officers had given Ms X suitable advice about seeking an SGO and offered her financial support for the application.

Court hearing

37. Ms X attended a court hearing in 2023 for the SGO. The Council prepared a Special Guardian report/assessment on Ms X and Y. This explained the reasons for Ms X applying for an SGO. The report stated Ms X was entitled to claim Child Benefit for Y once the SGO had been approved and she may be entitled to receive a means-tested SGA. But the Council was currently reviewing its Special Guardian allowances for private SGO’s. So, it had not completed an assessment to calculate whether Ms X was due any allowance.
38. The Council confirms this is the reference to a payment Ms X refers to as being ‘reneged on’. It says that it told the court the payment of SGA to private SGO’s was being considered. The Council says Ms X was aware of this and it might not make SGA for private SGO’s. Ms X said she wished to go ahead with the Order, nonetheless. The courts granted the SGO.

Special Guardianship Allowance

39. The Council considered Ms X’s request for post SGO financial support under the Special Guardianship guidance. It carried out a financial assessment on Mrs X on a means tested basis. Officers did not consider Y had any additional needs which needed the support ‘that goes beyond universal services’. They noted Y had two parents who still held parental responsibility and Ms X could now claim Child Benefit and Child Tax Credit (and could have done so since Y came into her care).
40. The Council’s documents note ‘this is a private SGO following a private family arrangement being implemented prior to the LA involvement’. And Y was in ‘the care of (Ms X) under a private family arrangement at the point of referral to children’s services 24.8.21’. The Council did not authorise any SGA to Ms X.

My assessment

41. The document I have seen show the Council responded to the concerns raised about Y in August 2021. The Council was aware Y was staying with Ms X. It carried out a preliminary assessment on Y to consider how best to provide support to the family and arranged for him to be seen by a GP. There is no evidence of fault in the Council’s response to the concerns raised as it took appropriate action.
42. The Southwark judgement looked at whether a council had been involved in a private fostering arrangement and how much that involvement had been. The courts accepted that a private fostering arrangement could come about as the result of discussions between the proposed foster parent and the child’s parents or those with parental responsibility. But there might be occasions when a private arrangement is made without such direct contact. And there might be cases in which a council plays a part in bringing about such arrangement.
43. The evidence in this case shows the Council was in contact with Ms Z in August 2021 to ensure she agreed to Y staying with Ms X. Ms Z had previously given her consent to this in the earlier family agreement in 2015.
44. In August 2021 Y was staying with Ms X under her care when she contacted the Council, and she wanted shared parental responsibility for him. I am satisfied, on balance, that Y was staying with Ms X in July 2021 under a private arrangement and the Council had not placed him there as its involvement in 2015 had ended. The documents show the Council was assisting the family and supporting Ms X to make a private SGO application.
45. I am satisfied the documents in this case show the Council gave advice to Ms X when discussing the SGO. The case notes show Ms X wanted to make the application. The Council supported her to do so and agreed to pay the application costs. The reports show Ms X was advised she could claim Child Tax Credit and Child Benefit for Y and that she may be entitled to a means tested SGA. But was told the Council was reviewing its SGA for private SGO’s. This was the issue referred to in the court hearing.
46. The Council assessed Ms X for SGA after the court hearing. But it decided she did not qualify based on her circumstances, income and that Y had no special needs that required financial assistance from the Council. I am aware Ms X does not agree with the Council’s decision on her SGA application. But I am satisfied the evidence shows it took all relevant information into account when it made its decision as the regulations require. The decision not to award Ms X SGA is one the Council is entitled to make. There is no evidence of fault in the way it was taken so there are no grounds for me to question the merits of the Council’s decision.

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Final decision

47. I am completing my investigation. I have found no evidence of fault in the way the Council responded to Ms X’s concerns about Y in 2021, supported her with a Special Guardianship Order and decided her Special Guardianship Allowance application.

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Investigator's decision on behalf of the Ombudsman