Summary: Mr X complained the Council has not met its legal duties to support his Special Guardianship Order. He says this has impacted the emotional wellbeing of his family. We find the Council at fault which caused injustice. The Council will apologise and make a payment to Mr X. The Council will also make a fresh decision.

The complaint

1. Mr X complains Bury Council, which I refer to as “the Council”:

1. handled his statutory complaint poorly; and
2. has not met its legal duties to support Special Guardianship Orders by not funding a loft conversion.

2. Mr X says the delay and poor handling of his complaint caused avoidable and unnecessary distress. He says the decision not to fund a loft extension means the children are overcrowded which has impacted their emotional wellbeing.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

8. I considered the information and documents provided by Mr X and the Council. Mr X and the Council had an opportunity to comment on a draft of this decision. I considered all comments received before making a final decision.
9. I also considered the relevant statutory guidance, and Council’s policy, as set out below.

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What I found

What should have happened

Statutory complaint process (part a of the complaint)

10. 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.
11. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
12. 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.
13. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
14. 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.
15. 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.
16. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
17. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.

Special Guardianship Order support (part b of the complaint)

18. Special Guardianship is an order made by the Family Court that places a child or young person to live with someone other than their parents on a long-term basis. The person with whom a child is placed will become the child’s Special Guardian.
19. 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.
20. If support is provided the council must review the arrangements at least once a year.
21. The Special Guardianship Regulations state when a child has been previously looked after, the assessment and provision of services for the child, and the special guardian, remain the responsibility of the local authority where the child was last looked after for three years from the date of the order.
22. The Regulations state that once the three year period from the making of the special guardianship order has expired, the local authority where the special guardian lives is responsible for assessing and providing support services.
23. The Regulations state special guardianship support services include financial support (regulation 3 (1)(a)).
24. The Regulations state that there is a distinction between ongoing financial support (financial support that is paid on a regular basis) which was agreed before the special guardianship order was made and other support services. It says the assessment and provision of such financial support will remain the responsibility of the local authority who originally agreed it for as long as the family in question qualify for payments (regulation 5 (35))
25. The Regulations sets out the circumstances in which financial support may be paid to a special guardian. This includes where the local authority consider it appropriate to make a contribution to the expenditure necessary for the purpose of accommodating and maintaining the child, including alterations and adaptions of the home (regulation 6 (38)(d))
26. The Ombudsman’s published report ‘Firm Foundations: complaints about council support and advice for special guardians’ says councils should ensure decisions about support to special guardians are being made based on the child’s needs as opposed to blanket financial constraints.
27. Section 17 of the Children Act 1989, says that it is not appropriate for Councils to take children into care in the absence of additional safeguarding issues. It says councils should ‘promote the upbringing of...children by their families’. This can include providing both accommodation and financial assistance. Councils making decisions under its Section 17 duty are discretionary, and act as children’s services authorities.
28. Section 17 of the Children Act 1989 requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.

What happened

29. Mr X lives in Bury.
30. M and N lived in Local Authority B.
31. Prior to 2020, M and N were taken into care. They were placed in the care of Mr X.
32. In 2020, Local Authority B pursued a Special Guardianship Order. Mr X became M and N’s Special Guardian.
33. In 2023, Mr X contacted the Council about the Special Guardianship Order. He raised concerns about M and N sharing a bedroom and requested financial support to fund a loft conversion. M and N were in receipt of Disability Living Allowance. The Council completed a needs assessment which detailed M’s behaviour during the night was impacting N’s sleep and their emotional wellbeing. It said a second bedroom would provide M and N with individual privacy and personal space which would possibly allow them to have better sleep and personal time. It said M and N would still require additional further support other than a separate bedroom because of their other needs. The Council told Mr X it declined his request to support a loft conversion because Local Authority B was responsible for all financial support.
34. In August, Mr X made a formal complaint.
35. In late August, Mr X contacted the Council about the delay in responding to his complaint. The Council told Mr X it would issue its stage one response by the end of September.
36. In early November, the Council issued its stage one response.
37. In mid-November, Mr X escalated his complaint to stage two.
38. In late November, the Council appointed an IO to complete the stage two investigation.
39. In early December, the Council appointed an IP.
40. In mid-December, the appointed IP withdrew from the process.
41. In late December, the Council appointed a new IP.
42. In July 2024, the Council sent Mr X its stage two investigation report by IO, the stage two investigation by the IP and its adjudication letter. The IP raised significant concerns with the investigation process, including that the IO did not refer properly to legislation, the IO had not shared information with the IP, and that the IO had repeatedly interviewed staff members without the IP present.
43. Mr X escalated his complaint to stage three.
44. In early August, the Council held the stage three panel meeting.
45. In early September, the Council sent Mr X the outcome of the stage three panel. The panel made the following recommendations for the Council:
• to provide Mr X with a copy of the most recent child and family assessment
• to provide Mr X with contact details for the appropriate social work team
• to review M & N’s child and family assessments
• to remind staff of resources that can be applied for under Section 17 powers
• to assess M & N to see if they require Education, Health and Care Plans
• to update its policy to ensure Special Guardians are informed of resources available via the Adoption Support Fund
• to ensure IO’s have appropriate skills, knowledge and training and to consider using external IO’s in future
• to liaise with Local Authority B to seek resolution and decide which, if either, Council was responsible for funding the loft conversion and seek legal advice to support its decision.
46. In November 2024, Local Authority B and the Council wrote jointly to Mr X. They said the Council was providing support under Section 17. They told him that Section 17 can include some financial elements of support, but the Council has no responsibility to fund an extension.

Analysis

Statutory complaint process (part a of the complaint)

47. The Council should have issued its stage one complaint response by early September. It issued its response in early November. This was two months longer than the statutory timeframe allows. This is fault. This fault caused Mr X unnecessary and avoidable uncertainty.
48. The Council should have completed its stage two investigation process by mid-February at the latest, if it had required an extension. It issued the stage two investigation reports and adjudication letter in July 2024. This is five months longer than the statutory timeframe allows. This is fault. This fault caused Mr X further unnecessary and avoidable uncertainty.
49. The stage two report by the IP highlighted flaws with the investigation. Despite the flaws in the investigation, the statutory complaints process came to the outcome sought by Mr X, which was for the Council to liaise with Local Authority B and address his home adaptions request. This said, I consider the flaws in the investigation to be fault. This fault caused Mr X further unnecessary and avoidable uncertainty and frustration.
50. The Council tells the Ombudsman this investigation was the IO’s first and only investigation. It tells the Ombudsman it now uses external IO’s. This is in line with the stage three panel’s recommendations. For this reason, I do not consider service improvements recommendations to be appropriate.
51. The Council met its duty to arrange a stage three panel within 30 working days of the date of Mr X’s request and issue its final response within 20 working days of the panel hearing. The panel made several recommendations to the Council. I am satisfied the Council properly followed the panel’s recommendations, with the exception of the recommendation regarding the loft conversion, which I have addressed in the section below.

Special Guardianship Order support (part a of the complaint)

52. The Council became responsible for assessing and providing support services to M and N in 2023. Once it became aware of the Order, it completed a needs assessment. The assessment detailed the negative impact on N caused by sharing a bedroom with M. It also detailed the Special Guardianship arrangement was at significant risk of breaking down.
53. Section 17 of the Childrens Act says it is not appropriate for councils to take children into care in the absence of additional safeguarding issues. The Council identified several times that the arrangement was at risk of breaking down. This was reflected by the stage three review panel. The panel told the Council maintaining the current Special Guardianship arrangements was the priority. The Council was providing support in line with its Section 17 duty. Payments made to families under a council’s Section 17 duty are discretionary. The Council identified M and N’s needs and acknowledged a separate bedroom would likely support both M and N.
54. The Council followed the stage three review panel’s recommendation to liaise with Local Authority B to decide which, if either, Council was responsible for funding the loft conversion and seek legal advice to support its decision. The joint letter provided to Mr X said the Council had no responsibility to fund an extension. It did not explain its rationale or provide its considerations. The Council placed significant weight on Local Authority B’s decision not to consider an extension in its decision-making. I am not satisfied the Council has properly considered all relevant factors and its duties under Section 17 in making its own decision. This is fault. This fault has caused Mr X avoidable and unnecessary uncertainty.
55. The Ombudsman’s published report says councils should ensure decisions about support to special guardians are made based on the child’s needs as opposed to blanket financial constraints. I consider that, on balance, the Council’s response shows it made its decision based on blanket financial constraints.
56. Furthermore, M and N are both in receipt of Disability Living Allowance. There is no evidence the Council considered its other powers to resolve this matter. These powers include home adaption grants including the Disabled Facilities Grant. I find fault with the Council not considering its full range of powers. This fault has caused Mr X further avoidable and unnecessary uncertainty.

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Action

57. Within four weeks of my final decision, the Council has agreed to:
1. provides a written apology to Mr X for the avoidable and unnecessary uncertainty and frustration caused by its seven-month delay in completing the statutory complaints process and the quality of its stage two investigation.
2. makes a payment of £500 to Mr X to remedy the avoidable and unnecessary uncertainty and frustration caused by the delay and quality of the statutory complaints process. In arriving at this figure, I have considered our published guidance on remedies. I consider this amount is appropriate and proportionate to the level of injustice caused.
58. Within twelve weeks of my final decision, the Council has agreed to make a fresh decision regarding Mr X’s request for a loft extension with consideration to all its powers and relevant factors and explains its decision-making rationale to Mr X in any decision it comes to.
59. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
60. The Council should provide us with evidence it has complied with the above actions.

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Decision

61. I find fault causing injustice. The Council will apologise and make a payment to Mr X and make a fresh decision.

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Investigator's decision on behalf of the Ombudsman