Summary: The Council was not at fault for how it calculated Mrs X’s special guardianship allowance. The deductions it made from the allowance were consistent with current government guidance.

The complaint

1. The complainant, whom I refer to as Mrs X, is a special guardian. She is in receipt of both universal credit and child benefit. She also gets a special guardianship allowance from the Council.
2. Mrs X complains that the Council has reduced her special guardianship allowance by the amount she receives in child benefit. She says this should not have happened, because she receives universal credit. She refers to recent Ombudsman decisions which, she says, support her complaint.
3. Mrs X also says that, irrespective of the method the Council uses to calculate her allowance, it has not taken proper account of her finances in doing so. She believes it is using a ‘blanket approach’ to calculating her allowance rather than considering her individual circumstances.
4. Mrs X says she wants an increased (and backdated) special guardianship allowance.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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. We provide a free service, but we must use public money carefully. We do not start or continue an investigation if we decide any fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
7. 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, section 26B, as amended)

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How I considered this complaint

8. I considered information from Mrs X, the Council and the Department for Education (DfE). I also considered relevant government guidance.
9. Mrs 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

The Council’s responsibilities

10. In 2017, the government issued statutory guidance to councils on how to support special guardians and the children they look after.
11. The guidance said that, when deciding the level of a special guardianship allowance, a council should have regard to the amount of fostering allowance it would have paid if the child were fostered instead.
12. The council must also take into account other benefits the special guardian receives. An allowance must not duplicate financial support available through the state benefits system.
13. In 2005, the government also issued a means test model to assist councils to work out adoption and special guardianship allowances. This model was non-statutory, but it made recommendations to achieve a fair and consistent approach by councils.
14. The model recommended that, when a special guardian or adopter was receiving income support (which has since been replaced by universal credit), councils should pay them the maximum allowance without assessing their income and without making any deduction for child benefit.
15. The Council does not use the approach recommended in the government’s means test model. Instead, it says it undertakes a comprehensive financial assessment of individual circumstances.

What happened

16. In 2013, the Ombudsman issued a public report into a complaint against Liverpool City Council (case reference 12 006 209). We found that the council had deducted child benefit from special guardians on income support. We said we expected councils to take account of the government’s recommended means test model when deciding whether to deduct child benefit from those on state benefits.
17. In mid-2022, Mrs X told the Council that she needed a higher allowance as her financial situation was “dire”.
18. In early 2024, we issued a further public report into a complaint against Devon County Council (case reference 23 000 973). We found that the council was at fault for operating a ‘blanket’ child benefit deduction policy. We made clear that councils should consider cases individually and give good reasons for departing from the government’s recommended means test model.
19. The Council has provided documents from its last two reviews of Mrs X’s allowance. No significant financial assessment took place on either occasion. But the Council says it paid her its maximum allowance (its full fostering allowance minus deductions for child-related benefits she receives), so no further assessment was necessary.
20. In mid-2024, Mrs X complained to us, referring to our public reports. She said she had exceptional (financial) circumstances which justified a higher allowance. She said she recently told one of the Council’s complaints advisors about this over the telephone (as well as by email in 2022).
21. Since then, we have made enquiries of the DfE about its means test model. It confirmed that the model is now out of date. It has not been updated since 2005 and is no longer supported or promoted by the government. However, it remains available for councils to use voluntarily if they wish.

My findings

22. Councils must have regard to relevant government guidance, and, if they depart from that guidance, they must give good reasons for doing so.
23. As the DfE model is out of date, I would not criticise a council for departing from it, as long as it can provide a reasonable explanation.
24. The Council says it conducts its own financial assessments and makes deductions for child-related benefits. There is no fault in this approach, which appears consistent with the statutory guidance.
25. Irrespective of the overall approach the Council takes to special guardianship allowances, it must ensure that it properly considers any particular individual circumstances which may justify a variation to that approach. For example, councils are able to make extra payments to special guardians if they believe such payments are necessary (including under section 17 of the Children Act 1989).
26. Mrs X did tell the Council about her financial hardship in 2022, but this happened too long ago to be included in my investigation. And I have seen no evidence that, in 2023 or 2024, Mrs X provided the Council with good reason to increase her allowance beyond its current rate (which is already the maximum the Council usually provides).
27. If Mrs X continues to believe that she has exceptional circumstances which justify a higher allowance, she should provide the details to the Council’s special guardianship service. It will then be able to assess whether any additional payments are needed.
28. If Mrs X remains dissatisfied with the Council’s decision, she can complain again via the Children Act statutory complaints procedure, and then, if she wishes, to the Ombudsman.

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Final decision

29. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman