Summary: The Council was at fault for paying Miss B a special guardianship allowance at the wrong rate between 2015 and 2021. This meant she missed out on a significant amount of allowance. The Council has agreed to backdate her missed payments.

The complaint

1. The complainant, whom I refer to as Miss B, complains about how the Council supported her as a special guardian for her great-niece (whom I refer to as C).
2. Miss B says:
• The Council accepts that, after the special guardianship order (SGO) was issued in 2015, she should have been paid an allowance at the London rate (which is higher than the national rate she received). But it has refused to properly backdate the allowance she missed out on.
• When the Council responded to her complaint, it agreed to conduct a full assessment of C’s needs and consider whether those needs justified a higher allowance. It also agreed to ‘advocate’ on her behalf to her local council about her housing needs. But it did not do these things.
3. Miss B says she has suffered a financial injustice, which contributed to her overall difficulties. She also says she is in unsuitable housing, and this is affecting her ability to look after C.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with a council’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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I considered:
• Information from Miss B and the Council.
• Relevant government guidance.
• The Ombudsman’s guidance on remedies.
8. Miss B 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

The Council’s responsibilities

Government special guardianship guidance (2005 and 2017)

9. When a child living under a special guardianship arrangement was previously in local authority care, the responsibility for assessing the child’s needs and providing support lies with the council where the child was in care for three years after the date of the SGO.
10. After this three-year period, responsibility transfers to the council where the special guardian lives.
11. However, the responsibility to provide any ongoing financial support agreed before the date of the SGO remains with the council who agreed it.
12. When deciding a special guardian’s financial support, a council should have regard to the fostering allowance which it would have paid if the child were fostered.
13. However, the council should also means test any support, and the allowance should not duplicate any benefits available to the special guardian (which would not be available to a foster carer).
14. The council can agree a higher allowance if the child needs special care which requires a greater expenditure of resources than would otherwise be the case. This is intended for when the child’s condition is “serious and long-term”.

National minimum fostering allowance

15. The government sets out recommended allowance rates for foster carers. These rates vary year-to-year and according to the age of the child. They also vary according to where the child lives.
16. For example, under these recommended rates, the foster carer of a child of C’s age in London would currently receive an allowance which is £30 a week higher than a carer of a similar child in the North of England.
17. Information provided by the Council suggests that it also has different rates for foster carers living in different parts of the country, and that its rates for foster carers in London are higher than for those outside London.

What happened

Before Miss B’s complaint

18. An SGO was issued for C to live in Miss B’s care in June 2015. The Council means tested Miss B and decided to pay her an allowance.
19. The allowance was paid at the national fostering rate, minus the child benefit she would receive (and minus another deduction based on the outcome of her means test).
20. In 2018, the Council stopped taking deductions based on Miss B’s means test. It paid her its full national fostering rate, minus child benefit.

The Council’s investigation into Miss B’s complaint

21. Miss B complained to the Council in 2021. Part of her complaint was about her housing situation. Another part was about her allowance not being paid at the correct rate (as she lives in London).
22. The Council responded under the three-stage Children Act complaints procedure. This involved an independent investigation (stage 2) and a review by an independent panel (stage 3).
23. In July 2023, having completed all three stages of the complaint procedure, the Council decided Miss B’s housing situation was for her local council – as the housing authority – to deal with.
24. However, it upheld Miss B’s complaint about her special guardianship allowance. It accepted that:
• As she lives in London, she should have been paid the ‘London rate’ of the allowance.
• Instead, she received the ‘national rate’, which was lower.
• This meant she had been underpaid since the date of the SGO in 2015.
25. Nonetheless, the Council sought legal advice (which it has provided to me) and decided it did not have a statutory duty to make backdated payments to Miss B.

The Council’s offers to Miss B

26. To recognise her injustice, the Council offered Miss B:
• An allowance at the London rate from the date of the Council’s stage 1 complaint response (November 2021) onwards.
• Backdated payments for a further three months (from August 2021), as a goodwill gesture.
• £500 to recognise that the underpayments put Miss B at a disadvantage.
• A consideration of whether Miss B’s allowance was sufficient to meet C’s needs.
• A referral to Miss B’s local council so it could consider C’s needs (including housing).

After Miss B’s complaint

27. A social worker from the Council visited Miss B in September 2023. She recorded Miss B’s description of her difficulties, including C’s behaviour and her overcrowded accommodation.
28. In October, the social worker then made a referral to Miss B’s local council. The referral document set out the difficulties Miss B had described during her home visit, and asked Miss B’s local council to assess C’s needs and support the family with housing.

My findings

29. Because of the amount of time which has passed since the SGO, the responsibility for assessing and supporting C lies with Miss B’s local council. And the same has always been true of the responsibility to address Miss B’s housing needs. The Council has no influence over Miss B’s housing priority.
30. However, the Council promised Miss B that it would pass on information about her housing needs to her local council, and it did. It was not at fault for this.
31. Although the Council is no longer responsible for meeting any additional needs which C has, it can adjust Miss B’s allowance if it thinks this is justified.
32. It visited Miss B and C, discussed C’s needs, and decided not to change the allowance. It did, though, ask Miss B’s local council to assess whether C needed extra support. This was all a matter of professional judgment which it is not my role to question.
33. However, when the Council decided, in 2015, to pay Miss B an allowance, it should have based this on its London fostering rates (as she lives in London). Instead, it based the allowance on its national rates, which were lower.
34. This was fault by the Council, which it has already accepted.
35. The Council has had legal advice which suggests it has no statutory duty to make backdated payments to Miss B. And I do not intend to challenge the Council’s position on this. I am satisfied that there does not appear to be any obvious legal requirement that the Council backdates the allowance Miss B missed out on.
36. However, this does not stop the Council taking proper action to remedy Miss B’s injustice. To do so is simply a matter of fairness, rather than statutory duty.
37. Our remedies guidance is underpinned by the principle that, when a council has made a mistake, we expect it to try and put the complainant back where they would have been without that mistake.
38. This is not always possible; however, in Miss B’s case, it is. The Council did not pay her money which it should have done, and this caused her a clear – and quantifiable – financial injustice.
39. The Council can easily remedy this injustice by backdating the extra allowance Miss B missed out on between 2015 and 2021. It should now do so.

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Agreed action

40. Within a month, the Council has agreed to make a payment to Miss B equal to the amount of special guardianship allowance she was underpaid between 2015 and 2021.
41. The Council will provide us with evidence it has made this payment.

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Final decision

42. The Council was at fault for paying Miss B special guardianship allowance at the wrong rate.

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Investigator's decision on behalf of the Ombudsman