Summary: Mrs X complained about how the Council stopped her special guardianship allowance in respect of her grandchild, Y, and the Council’s lack of communication with her. There were some faults by the Council which caused injustice to Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained in her capacity as a special guardian to her grandchild, Y.
2. Mrs X complained about how the Council stopped her special guardianship allowance in October 2020. She also complained about the Council’s lack of communication with her and its failure to explain why it stopped her special guardianship allowance.
3. Mrs X said the Council’s failings caused her financial hardship and loss, frustration and the time and trouble chasing the Council for an explanation.

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The Ombudsman’s role and powers

4. 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),
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 all comments received before reaching 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 9: Cessation of financial support under the Department for Education Special Guardianship Guidance

13. Financial support ceases to be payable to a special guardian or prospective special guardian if:
1. the child ceases to have a home with him
2. the child ceases full-time education or training and commences employment
3. the child qualifies for Income Support or Jobseekers’ Allowance in his own right, or
4. the child attains the age of 18 unless he continues in full-time education or training, when it may continue until the end of the course or training he is then undertaking.

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

14. 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.

15. 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.
16. Regulation 11.52 – 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).

17. Regulation 11:53 – if the local authority decides not to carry out an assessment where it has discretion… it must give the person notice of the proposed decision in writing including reasons for the decision. The person who requested the assessment must be allowed at least 28 days to make representations in relation to the decision.

The Council’s Special Guardianship Allowance Policy 2021 - 2023

18. Section 22.1 of the Council’s policy states the provisions as set out in Regulation 9 of the Department for Education Special Guardianship Guidance.
19. 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.
20. Section 25 states the provisions as set out in Regulation 11 of the Department for Education Special Guardianship Guidance.

The Council’s Complaint Procedure

21. No matter the method used to submit your complaint, we will acknowledge receipt of your complaint and endeavour to provide a response within 10 working days of receipt at Stage 1.
22. At stages 2 and 3, the Council will investigate and aim to respond within 10 working days.

Background

23. Mrs X was a special guardian (SG) to her grandchild, Y. Mrs X received SG allowance from the Council.
24. Prior to 2020, Mrs X had previously requested extended financial support for Y until she turned 21 years old. This was because Y had enrolled for a three‑year university degree course which she was scheduled to complete at the end of the 2022 academic year and when she would have turned 21 years.
25. At the time, the Council had informed Mrs X that her SG allowance would stop in July 2019 when Y had turned 18 years and at the end of her A levels. The Council asked Mrs X to send it any supporting evidence of Y’s continuous full-time education or training.
26. Mrs X sent the Council a copy of Y’s certificate of registration to the university for the 2019/20 session.
27. The Council considered Mrs X’s request via its finance and resource panel on several occasions. This was because it was waiting to get the legal advice it sought about the matter. The Council continued to pay Mrs X’s SG allowance pending the panel’s decision.
28. In late 2019, the Council informed Mrs X about its proposed changes to its SG policy and how it 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.
29. 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 make any necessary adjustments to their financial situations during the two-year transition period.

What happened

30. This chronology includes key events in this case and does not cover everything that happened.
31. In April 2020, the Council made the proposed changes to its SG policy.
32. Mrs X continued to receive her SG allowance until October 2020 and in November 2020, the Council stopped Mrs X’s allowance.
33. In late November 2020, Mrs X submitted an enquiry to the Council, she asked why it had stopped her SG allowance without any explanation. The Council said from its records it could not see anything that suggested Mrs X’s request was agreed. The Council asked Mrs X to send it any evidence to show the Council agreed to continue an extended financial support for Y.
34. In May 2021, Mrs X raised an enquiry with her MP about her SG allowance cessation and the impact of the Council’s changes to its SG policy in 2020. Mrs X’s MP wrote to the Council on her behalf. In particular, Mrs X raised concerns about the Council’s interpretation of the DfE guidance. She said the Council had placed greater weight on cessation of financial support (DfE guidance, Regulation 9). And as a result, negated the principle of ‘equal access’ for SGs under Regulation 11 of DfE guidance. She explained Regulation 11 allowed her to continue receiving her SG allowance when Y was over 18 years old, while she remained living with her and continued full-time education. But she said despite Y meeting all these requirements, the Council stopped her SG allowance in October 2020. Mrs X said she believed the Council’s changes to its SG policy led to the unexpected cessation of her SG allowance.
35. During the Council’s investigation into Mrs X’s concerns, it discovered Mrs X’s SG allowance stopped in October 2020 instead of July 2019. The Council said it appeared there had been an overpayment to Mrs X which was an error. The Council said it had failed to pick on the overpayment earlier and that it had not notified Mrs X of the identified error.
36. In May and July 2021, the Council responded to Mrs X’s MP. The Council 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 it had not changed its SG policy in relation to its continued support beyond the age of 18 years where the young person continued to be in full-time education or training. The Council confirmed its policy was in line with the DfE guidance which included Regulations 9 and 11.
37. In late June 2022, Mrs X made a formal complaint to the Council. Mrs X said she was making a complaint on behalf of her local kinship carer group about the changes the Council made to its SG policy which affected how it calculated the SG allowance. Mrs X also complained about how the Council stopped her SG allowance without giving her an explanation and how it had ignored her November 2020 enquiry about the matter.
38. About a month later, the Council issued its response to Mrs X’s complaint. The Council dealt with the complaint Mrs X made on behalf of the kinship carer group about the Council’s changes to its SG policy. The Council did not address Mrs X’s complaint about the cessation of her SG allowance.
39. Mrs X remained dissatisfied with the Council’s response and how it dealt with her complaint. She made a complaint to the Ombudsman.

Analysis

40. There were faults by the Council in how it dealt with Mrs X’s complaint.
41. According to the DfE SG guidance, Regulation 9 provides that financial support ceases to be payable to SGs when the child attains the age of 18 unless s/he continues in full-time education or training, when it may continue until the end of the course or training, s/he is then undertaking.
42. In Mrs X’s case, she requested extended (post-18) financial support for Y when she enrolled for a university degree course in 2019 in line with the above DfE provision, Regulation 9. While I acknowledge there is no overall obligation on councils to provide support to SGs, it must show how it considered and used its discretion to come to a decision whether to provide support or not. In this case, there was no evidence to show the Council properly considered Mrs X’s request for extended financial support for Y. The Council sought legal advice and presented Mrs X’s case to the panel on several occasions. But I find the panel’s notes were not robust and therefore do not satisfy me that the panel gave sufficient consideration to Mrs X’s request. Furthermore, there was no evidence to show what legal advice the Council received and how it reached its decision not to grant Mrs X’s extended financial support request, if at all that decision was made. This was fault. It caused distress and uncertainty to Mrs X.
43. I note the Council in its response to my enquiries said it had notified Mrs X prior to 2020 that her SG allowance would stop in July 2019 at the end of that academic year and when Y turned 18 years. However, the Council failed to notify or issue Mrs X a written letter of its decision about her request for extended financial support. This was fault and not in line with the statutory guidance. The guidance states councils should allow a period of 28 days for SGs to make any representations from the time the councils send its notice of outcome to the SG. The Council’s failure to issue Mrs X its decision letter caused Mrs X uncertainty, distress, confusion and denied her the right to make any representations if she had wished to do so.
44. I find the Council allowed the matter to drift and Mrs X continued to receive her SG allowance after July 2019 until October 2020. This was fault. It raised Mrs X’s expectation that the Council had agreed to carry on providing financial support when Y started her university degree.
45. As regards the Council’s complaints handling, there were missed opportunities by the Council to properly deal with Mrs X’s complaint about the cessation of her SG allowance in October 2020. First, when Mrs X originally submitted her enquiry to the Council in November 2020, the Council was unable to provide evidence and failed to issue its outcome letter to Mrs X to show it did not agree to grant her extended financial request. Similarly, in 2021 when Mrs X made her enquiries through her MP, the Council discovered it had made an error which resulted in an overpayment of Mrs X’s SG allowance (July 2019 – October 2020). I find the Council at that point should have notified Mrs X of the error and the overpayment, but it failed to do so. Again, in 2022 when Mrs X made a formal complaint to the Council, it failed to address her complaint about the cessation of her SG allowance in October 2020. These were faults. The Council, over a significant period missed out on several opportunities to have properly dealt with Mrs X’s complaint. This caused Mrs X distress, frustration and the time and trouble chasing and complaining to her MP, the Council and to the Ombudsman.

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Agreed action

46. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing and pay Mrs X £300 to acknowledge the distress, frustration, confusion, uncertainty and avoidable time and trouble caused by the Council’s failings as identified above. The apology should be in accordance with our new guidance, Making an effective apology
• by training or other means remind staff of the importance of adhering to statutory Special Guardianship legislation and guidance. Ensure the Council issues notices of its decisions to special guardians in a timely manner and allow them the opportunity to make representations, if they wish to do so
• ensure the Council keeps robust records and evidence of how it considers and makes decisions about special guardians’ requests
• by training or other means remind staff of the importance of following the Council’s complaints procedure, identifying and understanding issues raised in service users’ complaints. This is to ensure the issues raised are investigated appropriately in line with its complaints procedure and in a timely manner regardless of the channel the complaints are made. For example, complaints made via MP enquiries.

47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I find evidence of fault by the Council leading to injustice. The Council has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman