Summary: Ms C complained about the Council’s failure to refund deductions of child benefit from her special guardian’s allowance back to May 2019, following the publication of our public interest report on a similar complaint. We consider the Council should deal with the complaint first through the statutory complaints procedure.

The complaint

1. Ms C complained that Devon County Council (the Council) failed to refund deductions of child benefit from her Special Guardian’s Allowance, following a public interest report we issued on the same subject. Ms C considers she should receive the same backdated money as the complainant did in that case. She has been caused frustration at being treated differently.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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How I considered this complaint

3. I have considered the complaint and the documents provided by the complainant. Ms C 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

Statutory children’s complaints procedure

4. 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. We also published practitioner guidance on the procedures, setting out our expectations.
5. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
6. 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 investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
7. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.
8. 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 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.

What happened

9. In January 2024 we issued a public interest report against the Council stating that blanket deductions of child benefit from the special guardian allowance, when the special guardian was in receipt of means-tested benefits, was wrong. As part of the resolution to the complaint, the Council had agreed to introduce a new means test from 1 January 2024 to ensure these deductions were not made. The Council also agreed to refund the deductions to the complainant in that case, to the date the special guardian’s allowance had been paid. In respect of other special guardians similarly affected, the Council agreed refund the deductions to 1 January 2024.
10. Following publication of the report, Ms C complained to the Council and to us that the Council should refund her deductions to May 2019. Initially I said the Council could refer complaints to us but after further discussion with my manager we decided that any other person similarly affected should complain first to the Council. We expected the Council to consider cases through the statutory complaints procedure to decide each case on its own merits.
11. The Council responded to Ms C on 26 March 2024 confirming that a new means-test was being introduced with effect from 1 January 2024 and the refund of any deductions would be made to that date. It directed her to stage two of the complaints process. The Council then agreed to carry out a stage two investigation.
12. Unfortunately, our Assessment Team then considered Ms C’s complaint to us and decided, given the ongoing report, to pass it through for Investigation. The Council contacted us for clarification given the contradictory information we had provided. This was a result of our Assessment Team not being aware of the communication we had already had with the Council on these type of complaints.
13. I am sorry for the confusing information we have given to the Council and Ms C. But I consider it is reasonable to stick to the agreed position that the Council should continue with the stage two investigation and then stage three if appropriate. At this stage Ms C can return to us if she remains dissatisfied.

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Final decision

14. I have discontinued our investigation to allow the Council to consider the complaint through the statutory complaints procedure.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman