Summary: Mrs X on behalf of a kinship carers group, complained about how the Council made changes to its Special Guardianship Policy in 2020. As a result, Mrs X said the changes affected how the Council calculated allowances for special guardians. There was no fault by the Council in how it made and implemented the changes to its special guardianship policy and in how the Council dealt with Mrs X’s complaint.

The complaint

1. Mrs X complained on behalf of a kinship carer group, Group A.
2. Mrs X complained about how the Council made changes to its Special Guardianship Policy in April 2020. In particular the way the policy relates to Regulations 11.51 and 11.52 of the Department for Education Special Guardianship Guidance.
3. Mrs X said the Council’s policy changes have affected how it calculates the allowances for special guardians, leaving some with lower allowances.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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)
6. 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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How I considered this complaint

7. I considered the information Mrs X and the Council provided about the complaint.
8. I have exercised discretion to investigate matters from 2019. This is because I needed to consider the whole period to carry out a meaningful investigation.
9. I have sent Mrs X and the Council a copy of my draft decision and considered comments received before issuing a final decision.

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What I found

Special Guardianship Orders and Allowances

10. 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.
11. 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.
12. Any financial support is means-tested, and the Guardian may end up receiving no allowance at all. If support is provided, the council must review the arrangements at least once a year.

Regulation 11: Assessment for special guardianship support services under the Department for Education Special Guardianship Guidance

13. Regulation 11.50 – provides the following people must receive an assessment at their request, in cases involving looked after children or children who were looked after immediately prior to making of a special guardianship order:

• the child
• the special guardian or prospective special guardian
• a parent.

14. Regulation 11.51 – It is important that children who are not (or were not) looked after are not unfairly disadvantaged by this approach. In many cases the only reason that the child is not looked after is that relatives stepped in quickly to take on the responsibility for the child when a parent could no longer do so.
15. Regulation 11.52 – Regulation 11 also provides that the following people may be offered an assessment of their need for special guardianship support services:

• the child (where not looked after)
• the special guardian or prospective special guardian (where the child is not looked after)
• a parent (where the child is not looked after)
• a child of a special guardian (whether the special guardianship child is looked after or not)
• any person whom the local authority considers to have a significant and ongoing relationship with a child (where the child is not looked after).

The Council’s Special Guardianship Allowance Policy 2021 - 2023

16. Section 23.4 - From April 2020 the local authority will use a standardised tool produced by the Department for Education to calculate Adoption and Special Guardianship Order allowances.
17. Section 25 of the Council’s policy states the exact provisions of Regulation 11 of the Department for Education Special Guardianship Guidance (as set out above).

The Council’s Complaint Procedure

18. A complaint about the Council policy or procedure (rather than how the Council has applied a policy or procedure) is called ‘a representation’. A representation can also be made about allocation of resources or the nature or availability of services.
19. A representation will be considered by the Director responsible for the relevant subject area. If the Director feels that the policy, legislation or funding decision should be changed, the Director can take it forward for further consideration and will advise the service user of the next steps. The Council’s elected members will then have the final decision on whether it is changed.
20. If the Director feels that the policy, legislation or funding decision is appropriate and should not be changed, the Council will inform the service user the reason for its decision and explain it is the Council’s final decision on the representation. But, if the Council receives a significant number of similar representations, and it is within its power and responsibilities, the Council will consider re-investigating the concerns raised again.

Background

21. Mrs X was a special guardian (SG), and she is a member of a kinship carer group, Group A.
22. In 2019, the Council issued a letter to notify SGs about its proposed changes to its SG policy in April 2020. The letter set out how the Council would manage the SG allowances from April 2020. It explained the rate at which it would be paying SG allowance would change in line with the Department for Education (DfE) Special Guardianship guidance, using the means‑tested tool recommended by DfE. The Council recognised this would mean some families would receive a reduced allowance.
23. The Council said it decided not to introduce the new DfE means-tested approach until April 2022 for all existing allowance arrangements. It said this was to allow families to make any necessary adjustments to their financial situations during the two-year transition period.

What happened

24. This chronology includes key events in this case and does not cover everything that happened.
25. In April 2020, the Council made the proposed changes to its SG policy.
26. Mrs X raised an enquiry with her MP, who wrote to the Council on her behalf. Mrs X complained about the Council’s changes to its SG policy and its possible misinterpretation of the DfE guidance. In particular its interpretation of the DfE Regulations 11:51 and 11:52 which were provided to ensure children who are/were not looked after are not unfairly disadvantaged by any support assessment. Mrs X said the Council’s means-tested approach was not in line with the DfE guidance. And as a result, it had affected how the Council calculated SG allowances.
27. The Council responded to Mrs X’s MP. It confirmed that SGs who were previous kinship carers continued to have ‘equal access’ to the same level of support from the Council. It also confirmed the Council’s policy was in line with the DfE guidance.
28. Mrs X then made a formal complaint to the Council. Mrs X said she was making a complaint on behalf of Group A about the changes the Council made to its SG policy which affected how it calculated the SG allowance. She said the Council’s policy obstructed the poorest families from applying for the means-tested funding and that it disadvantaged SGs which was contrary to the DfE guidance.
29. The Council dealt with Mrs X’s complaint about the Council’s changes to its SG policy as a representation in line with its complaint procedure. It issued its response to Mrs X’s complaint. The Council said the SGs were means-tested before it awarded the appropriate financial support to them. It also said it took into consideration any other grant, benefit or allowance available to a person as a result of them becoming a SG to the child to determine the SG allowances.
30. Mrs X remained dissatisfied with the Council’s response and how it dealt with her complaint. She made a complaint to the Ombudsman.
31. In response to my enquiries, the Council:

• was unable to provide copies of its SG policies prior to 2021
• provided its SG policy for 2021 to 2023
• confirmed its policy is in line with the DfE SG guidance and that its policy includes support for those where children who were not looked after. It said financial and other support is offered to families where the children were not looked after
• confirmed and provided evidence it uses the DfE tool to assess and determine the level of financial support it pays SGs
• said it was unaware of any other complaints from other service users about its SG policy.

Analysis

32. Under the government guidance on the Special Guardianship Regulations, it sets out the circumstances in which councils should provide financial support to SGs. This includes councils making whatever means-tested reductions and adjustments that are suitable when it assesses the SG allowances. If a council wants to depart from the general approach set out in the guidance it needs clear reasons for doing so.
33. In response to my enquiries, the Council provided its SG policy covering 2021 to 2023. The Council also confirmed it uses the DfE tool to assess and determine the level of financial support / allowance it pays SGs. I find the provisions of its current SG policy (also Regulation 11 which Mrs X complained about on behalf of Group A) and the use of the recommended DfE tool are in line with the DfE guidance. This is not fault.
34. However, the crux of Mrs X’s complaint is how the changes the Council made to its SG policy in April 2020 affected how it calculated SG allowances. While I note the Council was unable to provide copies of its SG policies prior to 2021, I find the letter it sent to SGs in 2019 set out its proposed changes and how it would manage SG allowances from April 2020. The Council explained how the proposed changes would affect the rate which it would pay SGs, using the means‑tested tool recommended by DfE and in line with the statutory guidance.
35. The Council considered and identified that the new approach would reduce the SG allowance for some families. So, to prevent this disproportionate impact, the Council decided not to introduce the new DfE means-tested approach until April 2022 for all existing allowance arrangements. This was to allow families to make any necessary adjustments to their financial situations during a two-year transition period. This was a decision the Council was entitled to make, and it was not fault.
36. Councils can write and make changes to its policies in line with statutory guidance and government legislation. The Ombudsman cannot challenge decisions where the decision-making process was not flawed. In this case, there was no evidence of fault in how the Council reached its decision to implement its new SG policy.
37. There was also no fault in how the Council dealt with Mrs X’s complaint about the SG policy changes. The Council considered and dealt with Mrs X’s complaint as a representation in line with its complaints policy.

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Final decision

38. I find no evidence of fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman