Summary: The Council accepted that it acted with fault when the complainant and his partner agreed to care for their two nieces under a Special Guardianship Order. However, the complainant considered the Council had not fully recognised the adverse impact on them and their nieces, and he wanted to ensure the Council had improved procedures for all special guardians for the future. We accept the Council’s findings and are satisfied that the Council has made a series of service improvements to prevent a recurrence of the faults in this case. We did, however, recommend some additional service improvements and a personal remedy for the complainant and his family, which the Council has accepted. We are therefore closing the complaint.

The complaint

1. The complainant, Mr X, complained that:
1. The family’s first allocated social worker communicated poorly, lacking an understanding of the situation, and the Children’s Services team failed to offer sufficient and timely support when Mr and Mrs X became special guardians;
2. the Council failed to give sufficient advice, training, information, or log on details for the special guardianship order (SGO) information sharing website for new SGs, or on an ongoing basis thereafter (including information on allowances, entitlements, continuing support and advice);
3. their Social Worker provided incorrect information about the SGO allowance entitlement agreed by the Council in the SGO support plan from December 2019. Mr X says this meant the Council failed to make the correct allowances between March 2021 and March 2022 to him and Mrs X;
4. the Council failed to provide financial support or information about the psychological support available for one of the children, Child B, which caused a delay of 18 months in Child B accessing these services; and,
5. the Multi Agency Safeguarding Hub (MASH) failed to inform Mr and Mrs X within 24 hours of the incident involving the children’s father and provide sufficient support after this.
2. Mr X says the situation caused him and his family significant stress and distress. He says they missed out on support and advice from the Council. He says Child B missed out on access to prompt psychological support. Mr X says he went to significant time and trouble chasing the Council for responses, including on significant financial matters putting the family under financial stress.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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 the final decision with Ofsted.

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What I have and have not investigated

7. The Council investigated Mr X’s complaints under the Children Act 1989 three stage process. There was a detailed Stage 2 investigation by an independent investigator who divided the complaint into four main subjects: Communication and Relationships; Provision of Training and Information; Allowances and Finance; Issue surrounding the Multi-Agency Safeguarding Hub (MASH). The first three complaints were upheld.
8. A Complaints Review Panel held in October 2022 accepted the Stage 2 findings of fault and considered Mr and Mrs X’s additional concern that the Council had not promoted the SGO support website on grounds of cost. The Panel concluded that this was only because of a lack of knowledge rather than financial consideration.
9. The Panel accepted the no fault finding concerning the actions of the MASH team. It was considered MASH’s failure to tell Mr and Mrs X about a serious incident involving the children’s father was due to the Police’s delay in informing the team.
10. In November 2022, the Deputy Director of Children Services wrote to Mr and Mrs X to apologise stating that the service fell below acceptable standards. The Council offered a payment of £500.
11. As there has been a detailed investigation, and acceptance of fault, I am not reinvestigating the complaints. Instead, I am considering the impact of the faults on the family and whether the personal remedy offered is sufficient. I am also considering whether the service improvements recommended have been implemented and if there are further service improvements we should recommend.

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How I considered this complaint

12. We made enquiries of the Council and Mr X has had sight of the Council’s response but not all the attachments. I have spoken to Mr X on the telephone and considered all the written information.
13. I issued a draft decision statement to Mr X and the Council and have taken account of their further comments before reaching my final decision.

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What I found

Legal and administrative arrangements:

14. Where councils consider that a child is suffering or is likely to suffer significant harm due to the care being provided to the child, they can start care proceedings and seek to obtain a Care Order. This will allow councils to share parental responsibility with parents and remove children from unsatisfactory and unsafe living arrangements. The child becomes known as a ‘looked after’ child and the council has specific duties to safeguard and promote the child’s welfare.
15. Councils have a duty to consider placing children with family members, wherever possible, when removed from their birth family. If they do, family members will be assessed and receive the full fostering allowance, similar to that paid to councils’ own foster carers, and this continues while the child remains a looked after child under a Care Order.

Special Guardianship Orders (SGOs)

16. The Adoption and Children Act 2002 came into force in December 2005. It provided a new legal status, SGOs, for non-parents who wished to care for children in a long term, secure placement.
17. A SGO, granted by a Court, gives the special guardian parental responsibility for a child who is not their own. It does not entirely remove the parental responsibility of the birth parent but limits it. Courts can make a Supervision Order, alongside a SGO, where it considers it is necessary to ensure appropriate support for the special guardian and child.

SGO allowances

18. The SGO Regulations and Guidance 2005 and 2016 sets out the possible support services, which can be provided, including counselling, advice, information and financial support. The then Department of Education and Skills (DfES) produced a suggested model means test for adoption and SGO financial support payments.
19. As well as regular financial support, financial assistance can be given for legal costs and to meet the child’s therapeutic needs. Councils can also give assistance for the purpose of ensuring the continuance of the relationship between the child and the special guardian including training, mediation and respite.
20. Regulation 6 covers financial support. The Council can pay this in circumstances including where:

• It is necessary to ensure the special guardian can look after the child;
• Where the child “needs special care which requires a greater expenditure of resources than would otherwise be the case because of illness, disability, emotional or behavioral difficulties or the consequences of past abuse or neglect”.

21. 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. Any means test should use this maximum payment as a basis for calculation.
22. Where special guardians were previously foster carers, councils can pay them the fostering amount for a two year transitional period to give them time to adjust. The Regulations say:

“The purpose of the two year transitional provision is to enable local authorities to maintain payments to foster carers who become special guardians, at the same rate as they received when they were fostering the child. This should give the family time to adjust to their new circumstances”.

23. For example, this gives time for special guardians to apply for benefits in this period, which they would not have been entitled to as foster carers.
24. We publish focus reports on key issues of local government practice, drawing on lessons from complaints. In November 2013 we published a report, Family Values: Council services to family and friends who care for others’ children. We sent the report to all councils. We expected councils to circulate reports to appropriate departments. We updated the report in 2018.

Adoption Support Fund

25. In 2015, the Government introduced the Adoption Support Fund to provide support and therapy to children who had been adopted. In 2016, the Fund was extended to support children who were previously looked after but who were being cared for by a special guardian. The Council has to carry out an assessment and apply to the Adoption Support Fund. Adoptive parents and special guardians cannot do this directly. In 2018, the Government limited the amount of financial support to £5,000 per child.
26. The purpose of the Fund was to recognise that children’s difficulties would not be resolved simply by the making of an Adoption Order or SGO, and they required continuing support.

Education, Health and Care (EHC) Plans

27. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections.

The Council’s SGO practice

28. In April 2019, the Council produced its guidance. It stated, among other things, that those involved in the SGO process should be informed of the range of support services available through universal, targeted or specialist services. I cannot see that there is reference in the guidance to special guardians, who were foster carers, being entitled to two years fostering allowance after the making of the SGO.

Key facts

29. This is a brief summary of Mr X’s complaint. But I have taken into account his detailed response of March 2022 to the Stage 1 response when considering the family’s injustice.
30. Child B and Child C were removed from their home because of serious concerns about the adults’ ability to care for them. The Council started legal (care) proceedings and the children were placed with Mr and Mrs X. They were considered as family foster carers while the court proceedings continued. The Council paid Mr and Mrs X a fostering allowance during this period. While they did not want to see Child B and Child C placed in Council care, they considered that they had little information about SGOs and support available which enabled them to make an informed decision about whether they could provide a long-term home.
31. Mr and Mrs X were assessed as special guardians for the children. They were not directly part of the legal proceedings. The Council supported the making of a SGO to them. Mr and Mrs X sent many emails during this period (2019/early 2020) asking for support and advice, which were unanswered, and they say the allocated social worker was disorganised and negative about them. The Council’s independent investigation stated that the social worker had not recorded all necessary information, but the investigation did not find the social worker was negative about them. However, overall, the complaint that Mr and Mrs X did not receive enough support and information, when they had to make important decisions, was upheld.
32. Mr X says that the social worker told them that they would be entitled to the fostering allowance for two years after the making of the SGO. But she did not put this in writing after the final court hearing. However, this information was in the SGO support plan which had been submitted to the court.
33. In March 2020, the court made a SGO and a one year Supervision Order to ensure Mr and Mrs X and the children received support. The one year fell into the Covid-19 lockdown period so visits were virtual. The SGO support plan, submitted to the court, stated that Mr and Mrs X had access to advice, support and a helpline from a SGO website, commissioned by the Council. But Mr and Mrs X were not provided with access details, and it transpired that many of the social workers were unaware of this website. It also seems the website was more relevant to foster carers than special guardians. So, the Council upheld this complaint.
34. The SGO support plan, stating that Mr and Mrs X would receive a fostering allowance for two years after the making of the SGO, meant this allowance would continue to March 2022. After the legal proceedings ended in March 2020, there was then confusion about Mr and Mrs X’s entitlement. Mr X says that the allowance was stopped soon after the making of the SGO and the social worker denied saying that they were entitled to two years fostering allowance. The allowance was reinstated after Mr X had to pursue the matter and once the Council realised it had made a mistake.
35. In February 2021, Mr X asked for the financial support to continue beyond March 2022. Between March and June 2021, he sent six emails chasing this up. These emails were not responded to. It seems the officer responsible for responding was on sick leave but there was no ‘out of office’ facility, explaining this, or a colleague picking up the outstanding work. In July 2021, Mr X’s request was denied. Mr X said that the letter was cold and unsympathetic to the fact that they had taken on the care of their two nieces in difficult circumstances.
36. Mr and Mrs X received the fostering allowance to May 2022. After this time, they have received the means tested SGO allowance.
37. Child B has an EHC Plan and is known to have complex needs. Mr and Mrs X asked for additional therapeutic support for her. It seems the Council was unaware that the Adoption Support Fund (ASF) was available to children, previously looked after, now living with alternative carers under a SGO. Mr X was initially told it was for Child B’s school to provide counselling. Eventually, as a result of the Council commissioning a new provider of support for special guardians, an application was made to the ASF for therapeutic support for Child B.
38. Weekly therapy is now being provided, which Mr X says has been very helpful. Had Child B had this sooner, he says that it could have made a substantial difference to her wellbeing.
39. The complaint about the MASH’s team failure to pass on key information about the nieces’ father was not upheld because the Police had delayed in telling the MASH team.

Changes to the Council’s procedures

40. The Stage 2 investigation made six recommendations:

• that the manager will ensure that the social worker is made aware of the need to take and record appropriate information and upload this onto the Council’s system, to use the Learning Zone for training, and to tell parents to ask schools about their budget for pupils. The Council says that this has been done. But the details are confidential, which I accept;
• that two specific social work offices are reminded of the need to use the ‘out of office’ facility and to ensure cover for those on sick leave. The Council has sent me a copy of the email it sent in August 2022 to relevant social workers and managers about the ‘out of office’ facility and that other contact details should be provided when social workers/managers are absent;
• that all social workers should know the difference between foster carers and special guardians and are aware of the support available to the latter. In October 2022, the Council provided training with a power point presentation detailing the legislation concerning special guardians. This training included information about the ASF as well. In January 2023, the Council commissioned a new team to provide post SGO support and advice and this new team has involved Mr X, and other special guardians, in devising this service. The Council says that the training slides need updating, and this is planned. At present the Council does not have leaflets to give to special guardians or social workers, which explains the SGO process, and support available. But it is working on this;
• that there should be a process in place so that social workers are aware of updates to the SGO process. The Council’s new post SGO team consists of one assistant manager, a social worker and two family workers. The Council says that this team was set up for one year because it was unclear what the demand would be. Mr X is very keen for this team to remain and has helped to support this team;
• that the Council should tell Mr and Mrs X about the updates to the SGO system and send the available leaflet for kinship carers. The Council has been developing a range of sessions on key subjects, like trauma impact, therapeutic parenting, life story work, attachment and adverse childhood experiences. The first session on trauma was held in April 2023. The Council intends to invite guest speakers in future. In April 2023, it also provided training to other relevant workers about the SGO process and importance of the support plan and the role of the post SGO team. It is developing a website which provides information for pre and post SGO special guardians. It has looked at the website of another local authority. The Council is in the process of developing leaflets, posters and newsletters to keep special guardians up to date and which can also be used for a wider audience;
• that the Council should make a payment to Mr and Mrs X for the avoidable distress and frustration caused by the Council’s faults. The Council has made a written apology and offered £500, which Mr X has declined to accept.

Findings

41. I fully accept the Council’s three findings of fault and the one complaint of no fault. Of particular concern is that the regulation to provide a transitional fostering allowance for two years, post the making of the SGO, where children were previously looked after, has been in existence for some time, and the ASF was available since 2016. My view is that it is fault that the Council has not ensured that children’s social workers and managers have been aware of both.
42. However, it is clear that, as a result of Mr X’s complaint, the Council has accepted that its support and available information for special guardians has been lacking, and relevant staff unaware or confused about the SGO process and entitlements. The Council therefore commissioned a new team to develop a post SGO support service for special guardians. The team sensibly asked Mr X, and other special guardians, what would be helpful to provide, and it has shaped its service around these suggestions.
43. The Council also accepted all the other Stage 2 recommendations and has now provided information to the Ombudsman on the actions the Council has taken to compile with these recommended service improvements. Some work is still being undertaken and it may well be that more has been done since the Council provided its comments to us in March 2023. But my view is that the Council is taking the learning from this complaint very seriously.
44. The Government has reviewed children services and how best to provide looked after children with a stable, long-term and loving home. The Government wants councils to make good use of family networks to achieve this. Therefore, improving services for special guardians is very relevant and aligns with the Government’s plans for improving children’s services.
45. Being asked to take on long-term a relative’s child/children is a very significant decision, and it is so important that relatives have all the necessary information to make an informed decision. Sometimes, I accept, these decisions might have to be made quite quickly, which makes it even more important for there to be reliable, up to date written information available (like leaflets) so prospective special guardians can make informed decisions, and professional can give reliable advice. It is also the case that often children, who have had adverse childhood experiences, can display challenging behaviours. So, it is also important for special guardians to know what support is available.
46. My view is that Mr X and his family experienced avoidable distress and frustration caused by the Council’s faults. Mr X also had to chase up information and answers, both prior to the making of the SGO, and afterwards, at a time when Mr and Mrs X were taking on the care of two vulnerable children. The Council’s faults would have undoubtedly compounded an already stressful situation.
47. I also consider that the Council should have made the application for ASF sooner and it was fault not to do so. Given the success and helpfulness of the current therapy, on the balance of probability, it is likely that Child B would have benefitted had this been provided sooner. Therefore, there has been a lost opportunity for her.
48. Under our 26(D) powers, we have also considered whether other special guardians, who were previously family foster carers, have also been denied the two year transitional fostering allowance. The Council says that it has checked its complaint data, and asked those involved with special guardians, whether there have been others affected in the same way. Besides one complaint about the failure to include birthday and Christmas payments, the Council says that there have been no other known complaints.

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Agreed actions

The Ombudsman’s guidance on remedies (2022)

49. When someone has suffered injustice, we try to put them back in the position they would have been but for the error. Our focus is on restoring services that have been denied. Where that is not possible, we will try to think of remedies that acknowledge the impact of the faults.
50. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
51. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
52. Within one month of the final statement, the Council will:
1. increase its payment to Mr X to £1,000 to recognize the avoidable distress and frustration over a prolonged period;
2. to recognize the delay in providing Child B with therapeutic support sooner, I recommend a payment of £500 to be paid to Mr X to be used for her benefit;
3. in consultation with Mr X, consider whether the Council should write an age appropriate letter to Child B to apologise for its delay in making the ASF application;
4. Mr X is keen for the post SGO team to continue. It is for the Council to determine how it uses its resources and provides services. But the Council agrees to consult Mr X about the value of this service before it makes its decision. It might also want to consider whether this team could also provide a service and advice prior to a SGO being made;
5. It is important that prospective special guardians and family foster carers are fully aware of the available support and financial entitlement before they agree to care for a relative’s child long-term. The Council will provide the Ombudsman with an update on its production of leaflets/website content which provides this information, and an update on how it can ensure special guardians make an informed decision before agreeing to the long-term placement of a child. It is also important that all children’s social workers and managers are aware of the SGO process and support entitlement so the Council will provide the Ombudsman with an update on how it is ensuring this is also the case; and
6. if a special guardian, who was once a family foster carer, complains to the Council as a result of sight of our final statement on our website on this case, the Council will consider such a complaint in line with our findings and recommended actions here, thereby possibly preventing a complaint to the Ombudsman. This approach also applies to any complaints about the avoidable delays in making an ASF application.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. There has been fault and injustice. The Council has accepted the ways to remedy this. Therefore, we have completed our investigation and are closing the complaint.

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Investigator's decision on behalf of the Ombudsman