Summary: Mr X complains the Council failed to support him through the Special Guardianship process. We find fault with the Council for failing to follow the Statutory Complaints procedure. We have agreed service improvements with the Council and a symbolic payment to Mr X for his time and trouble.

The complaint

1. Mr X complains the Council failed to support him when he became a special guardian (SG), and failed to provide him with information sought. This caused Mr X to struggle financially.
2. Mr X would like to be refunded for the adaptations he made to his home, and for having to buy a larger car.
3. He would also like the Council to provide correct updated accessible information about the special guardianship process and what support is available.

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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 a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
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. The Council investigated Mr X’s complaints under the Childrens Act 1989 three stage process. There was a detailed Stage two investigation by an independent investigator, reviewed by the Acting Assistant Director for Children’s Social Care.
9. The complaint should have then gone to Panel for stage three but the Council directed Mr X to the Ombudsman.
10. Mr X’s complaint to us was about the remedies from the stage two investigation. He did not complain that the stage two did not investigate his complaint.
11. As there was a detailed investigation, I am not reinvestigating the complaints, most of which would be out of time (see paragraph six). 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 carried out and if there are further service improvements we should recommend.

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How I considered this complaint

12. I spoke with Mr X and considered the information he provided.
13. I made enquiries with the Council and considered the information it provided.
14. Mr 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

Legal and administrative background

Special Guardianship Order

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. There is no overall obligation on councils to provide support in every case in which a Special Guardianship Order (SGO) is made.
17. The Council must carry out an assessment to determine whether support is necessary. Any financial support is means-tested. This is reflected in the Council’s policy.

Statutory complaints process

18. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
19. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
20. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
21. Unless there is evidence of fault in the investigation process, the Ombudsman will not usually re-investigate a complaint which has been through the full procedure. This is because a properly conducted investigation is independent and robust.
22. The Ombudsman has published ‘Guide for practitioners’ (revised February 2022) about our approach to complaints about the statutory children’s complaints process.

What happened

23. I have summarised below an overview of key relevant events. This is not a detailed account of each communication between the parties or an exhaustive chronology of everything that happened.
24. In 2017, Mr X and his wife Mrs X became special guardians (SG) for Y and Z when they were one and two years old.
25. Mr X and Mrs X have three older children, who were 14, 16 and 18 when the special guardianship order (SGO) started.
26. The Court appointed an independent social worker (ISW) who described Mr X’s house as having one free bedroom large enough for Y and Z to share, and his social worker completed a support plan which Mr X went through with his solicitor and agreed.
27. Mr X traded his car for a new seven-seater car to fit everyone after getting the SGO.
28. The Council paid a weekly allowance to Mr X for Y and Z until they were of school age.
29. Mr X experienced harassment from the birth parents of Y and Z. The Council agreed to fund half the Court fees for the court case about this.
30. The Council’s notes show Mr X was considering adopting Y and Z, and moving out of the area to gain anonymity and avoid future harassment.
31. In September 2019 the Council stopped paying the weekly allowance for Y and Z in line with the support plan.
32. Mr X converted his garage into a bedroom for Y and Z. He said the bedroom they had could fit in two cots or a bunk bed. The children were too big for the cots, and too small to sleep in a bunk bed.
33. In Spring 2021 the family moved to the other side of England. Mr X asked the Council to continue the weekly allowance as Covid meant he was home schooling Y and Z and unable to work. He also asked for help towards the court fees and contact with the birth parents.
34. In October 2021 the Council told Mr X it would pay £4000 of the £5990 court fees.
35. In November Mr X told the Council he had withdrawn the adoption application and sought SGO support. In January 2022 Mr X chased the Council for a response about help with finances. The Deputy Director agreed to fund all the court costs, costs of milage for family time and overnight expenses for family time.
36. Mr X said he needed a continuing allowance and said the ISW told him the children needed separate rooms. He provided the Council of details of his commitments for the children which he said impeded his ability to work and meant his earning potential is reduced.
37. The Council refused his request for a continuing allowance because the children did not have any additional needs. It said it would consider the security costs Mr X had incurred, and would need more information about the car costs and the children’s activities out of school.
38. Mr X complained to the Council on 17 January 2022. The complaint was in two parts; the lack of policies and procedures, and how that affected Mr X. He complained:
• There was no policy on the web site or accessible to SG’s that sets out the criteria for how the Council decides to give financial support;
• The financial support is not known to SG’s, not publicised and not included in the support plans. If it is in the support plans it is not clear that it will end;
• It is unclear what can be claimed, when and for how long;
• The application process is slow with no set times for response by the Council which is stressful and unsettling for the SG’s;
• Payments are only made from the date of the decision and not from the date of request;
• There is no defined person at the Council to ask about applications, support, updates etc;
• There is no criteria for the financial application, no information on why an application has been refused, and no independent appeals process; and
• He applied twice for financial support and was refused both times, with the reasoning being he would work full time once the children were at nursery. The Council did not consider all the other factors Mr X presented to it.
39. The Council’s stage one response two days later attached a copy of the financial policy in place for SG’s. It said:
• The policy was being reviewed and once the review process is completed, the updated policy would be sent to Mr X;
• It gave details of a support manager who would support Mr X completing a financial assessment;
• It said this concludes stage one of the local complaints process. “If you do not feel we have fully responded to the points raised please let me know within 20 days”; and
• If all stages of the local complaint procedure was complete, it signposted Mr X to the Ombudsman.
40. On 29 January Mr X thanked the Council for its swift response, but most of the issues he raised were not resolved. On 2 February he asked if this could go to stage two of the complaints procedure.
41. The Council sent an email acknowledgement on the same day saying it would seek advice from the Customer Support Team and formally respond by 9 February.
42. On 9 February the Council agreed to review the complaint at stage two of the corporate complaints process:
• It thanked Mr X for the copies of policies from other local authorities. His comments will be considered as the Council is currently updating its own process, and will forward him a draft copy for comments and feedback once it is available;
• It accepts Mr X’s comment the policy needs to be clear on why requests for financial support may not be granted and this will be included;
• It is looking to develop a web page for SG’s to access for information about the process and support offered by the Council, including who to contact at the Council;
• It will consider the points Mr X raised about timescales when financial assessments are completed and will look to include this within the policy;
• It notes the inconsistency Mr X pointed out between the information in the form and the current policy and will update this in the new policy.
43. Mr X responded on 10 February, thanking the Council for the response, but he felt there were still matters outstanding about the criteria for a successful financial support application and other issues.
44. In Autumn 2022 Mr X asked for details of the Council’s policies as he said it was not clear what he could and could not claim for, and there were no clear policies on the Council’s web site.
45. Mr X said he had exhausted all his savings, and was in a large amount of debt.
46. On 4 November 2022 Mr X asked the Council for repayment for the cost of the car and for adapting his accommodation, totalling £20,000.
47. The Council responded on 10 November saying:
• It hoped to have a formal response to Mr X by the 18 November;
• It has been looking at the support for SG’s and this has led to a restructure of how the Council provide this;
• It hopes to have the web site up and running by early next year and have designed a leaflet outlining the support offered to carers;
• Apologised for the delay in sending a draft of the new financial support policy for SG’s. The Council have been looking at several financial support alternatives for SG’s as this must be agreed by those responsible for the Council budgets; and
• Considering all the concerns Mr X raised in his complaint, and because the Council would like to provide an allowance to all SG’s, it agreed the Council will pay an allowance for the children, details to follow in a separate letter.
48. The Council gave the November complaint a different refence number to the previous complaint.
49. On 1st December the Council wrote to Mr X (with the same reference number as the complaint made in January), saying it was dealing with the complaint under stage two of the statutory complaint procedure. It said it would “try and provide you with a written response within 25 working days, we may need more time (up to 65 working days)”.
50. The stage two adjudication response from the acting Assistant Director for Childrens Social Care is dated 7 March 2023. He refers to the investigation report dated 27 February by the Investigation Officer and decides whether he agrees with each point.
51. I did not look at the parts about the lack of SG information and the support plan agreed at Court in 2017 (see paragraph five).
52. Of the 15 points investigated, six were upheld, four were partially upheld, and five were not upheld. Recommendations were made to the Council to address the injustice from the upheld parts of the complaint.
53. The upheld and partially upheld findings were:
• More information about possible entitlements for SG’s should be available, including telling SG’s they can seek funding for alterations for the home and for transport;
• Lack of advice and support around benefits and support to which SG’s are entitled to;
• Failure to provide copies of up to date policies and procedures; and
• Mileage payment for fuel costs differs between SG’s and other carers.
54. Mr X’s desired outcomes were for:
• An apology for the Director of Childrens Services – this was agreed;
• To be put in the financial position he was in before he became a SG, considering the cost of the larger vehicle and adaptations to his home – this was not agreed, but the Council did offer to pay Mr X £6000 for the difference between and five and sever seater vehicle;
• A commitment to provide a reasonable response to future requests for assistance – this was agreed.
55. The other recommendations were for the Council to:
• Publish its policies, procedures and core offer for SG as soon as possible;
• Share a leaflet outlining all the different legal orders that may be made at the start of any SG assessments;
• Update the core offer leaflet with details of how needs are assessed;
• Make accessible information available to SG’s about benefits and agencies that can offer advice;
• Use a separate finance form to request one off payments under SG regulations; and
• Update the review form for regular SGO support payments to clarify what counts as income;
56. The Council signposted Mr X to the Ombudsman if he was still unhappy with the outcome of his complaint.
57. Mr X brought his complaint to the Ombudsman. He said he raised these complaints but has not had an acceptable remedy from the Council, and he wants to be refunded for the expenses he has incurred since becoming a SG.

Analysis

58. When the Council replied to Mr X in February 2022 it said his complaint would go to stage two of the corporate complaints process. This is fault as it should have been under the three stage statutory complaints process. Failure to do so meant that Mr X was not given the opportunity to request his complaint be considered by an independent stage three panel.
59. The complaint in November was given a separate reference number when it should have been linked to his previous complaint, and reviewed under the statutory complaints procedure. This was poor complaint handling by the Council, causing Mr X injustice.
60. The decision by the Council in December to review Mr X’s complaint under stage two of the statutory complaint procedure was late. This should have been completed 13 weeks after Mr X requested it in February (see paragraph 18). This is fault causing further injustice to Mr X.
61. It is not our role to reinvestigate matters which have already been subject to a properly conducted and independent investigation. To do so would not be a good use of public resources. Instead, our role is to consider the following:
• was the investigation properly conducted and are the conclusions evidence based. If not, would the Ombudsman reach a different view based on the information available to us?
• did the Council offer a proportionate remedy for the injustice caused by fault? If not, would the Ombudsman recommend any further remedial action?
• has the Council fully implemented any agreed remedy? If not, has the delay caused any further injustice to the complainant?
62. The Councils duties under the process are statutory. The Council has a duty to carry out a stage three where an agreement with the complainant could not be reached. There is some discretion to make an early referral to the Ombudsman at the end of stage two if the complaint has been fully upheld and the Council has agreed to the desired outcomes. This was not the case here and the Council signposted Mr X to the Ombudsman. This is fault.
63. The Council told Mr X after stage two that it upheld and partially upheld some parts of his complaint, but there were parts that were not upheld and a disagreement on the remedies. I do not consider that this was an agreement between Mr X and the Council to end the process and make an early referral to the Ombudsman. The Council had not been able to confirm it could meet Mr X’s desired outcomes. This was fault by the Council as it has a statutory duty to carry out a stage three.
64. In considering whether the Councils fault has caused Mr X injustice, I have considered whether the stage 2 investigation was properly conducted. The Council has been able to show how the independent officer reached their decisions, and what evidence was relied upon. It has also been able to demonstrate how it considered each part of Mr X’s complaints and his requests for remedies. Finally, the Council has been able to reasonably demonstrate how it considered the IO’s findings when looking to remedy Mr X’s complaints. It is unlikely the Ombudsman would reach a different view based on the evidence available. Further the Ombudsman would be unlikely to investigate the complaint from 2017 as it is out of time (see paragraph six).
65. With the above in mind, I have considered whether the Councils remedies are proportionate. To do this, I have considered how the Council decided the personal remedies and whether they are in line with our guidance. The Council has offered proportionate personal remedies to Mr X which are in line with our guidance.
66. However, the complaint process was flawed so I am recommending service improvements to the Council for the complaints procedure, with a symbolic payment to Mr X for the time and trouble for the delay in the complaint handling and failure to follow the statutory complaints process.
67. I welcome the Council’s remedies including the recognition the policies and procedures should be made accessible to potential and current SG’s. Mr X has received payment, and the Council is keeping him updated on changes to its website and information provided to potential SG’s. We note there is some delay due to Local Government Review and the Council becoming a unitary authority, but this does not cause further injustice to Mr X.

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Agreed action

68. Where remedies take 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.
69. Within one month of the final decision the Council will pay Mr X £250 for his time and trouble due to the flaws in the Council’s complaint handling.
70. Within three months of the final decision, the Council will;
• Review its procedures for handling statutory complaints about children’s services;
• Remind relevant staff by training or other means the importance of following the correct complaints procedure, and to adhere to the timescales of the statutory complaints process.
71. The Council will also inform all Special Guardians of the website it is currently setting up, by email and in the quarterly newsletter.
72. The Council should provide us with evidence it has complied with the above actions.

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Final decision

73. I find fault with the Council for not following the statutory complaints procedure, and have agreed service improvements and a symbolic payment for the time and trouble caused to Mr X.

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Investigator's decision on behalf of the Ombudsman