Summary: Ms X complains the Council breached an agreement to pay her rent shortfall as part of an agreement for her to care for two children as a special guardian. She also believes the Council was wrong to inform her she was only able to bid for a two bedroom property. She says the Council caused her an injustice by its lack of adherence to the terms of the agreement. She says she had to borrow money to meet the shortfall the Council failed to pay and has now been evicted. The Ombudsman does not find the Council at fault.

The complaint

1. Ms X complains that the Council has wrongly:
1. Repeatedly failed to pay her rent shortfall even though she says it agreed at court it would do so while she cared for two children, Child A and B, as a special guardian.
2. Failed to continue to pay her rent shortfall when she was no longer a special guardian. She says this is in contravention of the court agreement which she says was clear that any rent shortfall should be paid until she and her birth son, D, were rehoused.
3. Mis-managed her housing application file, claiming she refused an offer of a four bedroom house, when she did not.
4. Refused to include D in her housing application as he is over 21.
5. Failed to reply to a letter of complaint filed by Ms X’s solicitor.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. 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)

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How I considered this complaint

7. I have spoken to the complainant’s legal representative and viewed her complaint file.
8. I have researched the relevant policy and guidance and made enquiries with the Council.
9. I have not considered events that happened more than 12 months ago. I do not consider there is good reason why the complainant could not have approached either the court or the Ombudsman at an earlier date to address the issues she previously had with the Council’s actions.
10. Both the complainant and the Council have been given the opportunity to comment on my draft decision.

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What I found

Relevant law

Special Guardianship

11. Special guardians are people who look after children who are not their own, following a court order. The Special Guardianship Order (SGO) gives children more permanence than a regular fostering arrangement and gives their guardians more rights to make decisions on their behalf. In practice, they are often a less costly option for councils than residential or foster care.
12. Special Guardianship orders can be varied or discharged on the application of the special guardian or the local authority.
13. Local authorities are required to make arrangements for the provision of special guardianship services. These include counselling, advice, information and other services (including financial support) as set out in the Special Guardianship Regulations 2005, (SGR Regulations).
14. Regulation six of the SGR Regulations provides that financial support is payable to facilitate arrangements for a person to become the child’s special guardian, where this is considered to be beneficial to the child’s welfare, and to support the continuation of these arrangements after the order has been made. (para 37, Special guardianship guidance: Statutory guidance for local authorities on the Special Guardianship Regulations 2005 (as amended by the Special Guardianship (Amendment) Regulations 2016)
15. Regulation nine says that financial support ceases to be payable to a special guardian in a number of circumstances; one of which is where the child attains the age of 18 unless he continues in full-time education or training, when it may continue until the end of the course or training he is then undertaking. (para 45: Statutory guidance for local authorities on the Special Guardianship Regulations 2005 (as amended by the Special Guardianship (Amendment) Regulations 2016)

The Council’s Housing Allocations Scheme

16. At the time Ms X and the Council entered into the 2009 agreement, the Council had a different allocation policy to its current policy. Under Group F, social services could make a referral for housing. This was to, “prevent significant harm to a child” or “to facilitate discharge of children under 18 from care to their own or substitute families”. This represented a high level of priority.
17. If someone gave up their council accommodation to care for children, this was recognised by Group C. Under this group, that person could be returned to accommodation like that they left when they no longer needed larger accommodation.
18. In a witness statement presented to the court at or around the time of the hearing, an officer said that if Ms X’s placement ended before she was housed with a three bedroom home under Group F, she could return to a two bedroom home through the Group C provisions.
19. The Council’s allocations policy changed in 2013. This meant that household members over the age of 21 were no longer taken into account in determining the size of property someone can be offered. There are exceptions to this rule. One of the exceptions is for persons who are providing care to someone in the household who is disabled and requires care.
20. In exceptional circumstances the Strategic Director of Delivery may use his/her discretion to allocate an applicant a property which is either smaller or larger than their allowed property size. This may include where smaller or larger housing is required in order to make a final offer of accommodation.
21. Ms X has been placed in Band A. It is the highest priority band she could be placed in and is described in the Council’s policy as being reserved for emergencies and strategic priorities.

Background

22. As set out in para 9 above, I am not investigating the historic actions of the Council. However, in order to provide a context for Ms X’s complaint, it is necessary to set out the background to the issues she complains about.
23. In 2009 the Council and Ms X entered into an agreement at court. Ms X had legal representation. In summary, Ms X agreed to become a special guardian for two children, Child A and Child B. She already had a child of her own, D. As she needed more room to support the whole family, the Council agreed to help her with accommodation and support her financially. The complainant and the Council now disagree about the terms of the agreement.
24. The terms of the agreement relevant to this complaint were, in summary:

• The Council would pay Ms X’s rent arrears in the council property she was then living at.
• The Council would provide Ms X with the opportunity to privately rent a three-bedroom house or flat. (This increased to a four bedroom property when D turned 18 and was therefore entitled to room of his own under the rules that applied at the time.)
• The Council was:

“…committed to pay any shortfall in rent on the said private rental property whilst Ms X…for the duration in which Ms X and [Child B, who is the youngest child] reside in the property whilst awaiting transfer of Ms X to council accommodation under either Group C or Group F provisions.”

• The Council agreed to accept an application for a three bedroomed property with certain specifications and accepted that:

“…so long as [Child B] and [Child A] continue to reside with [Ms X] as their Special Guardian, this specification is reasonable.”

• The Council accepted that in agreeing to house Child A and B, Ms X was giving up her then current tenancy and said it would be reasonable for her to return to a similar property.

25. In preparation for the hearing, a housing officer wrote a witness statement to the court, outlining the thinking behind the Council’s decision to use its discretion and agree to the above arrangement. He said:
26. “The Allocation Scheme makes specific provision for those caring for children looked after by the council. This provision does not apply to special guardians…I understand that special guardianship is an alternative to the council assuming parental responsibility. However, we would not want to apply this unthinkingly, and if [children’s services] advised that this was necessary to prevent a child being taken into care then we would consider exercising discretion. Note that we would not, however, allow this provision to be used to enable [Ms X] to retain her priority for a transfer whilst living in private sector accommodation, but to enable her to return to a property similar to one she currently occupies after she has stopped being a special guardian.” (my emphasis)
27. Ms X says she found some private accommodation. She says the Council failed in its obligation to pay her shortfall and she had to find other private accommodation at House F. She signed a tenancy agreement in August 2009. I understand she is currently at the same property although is now facing imminent eviction.
28. The records show the Council paid the shortfall of rent at House F up until 30 June 2018. (There were some periods where payment stopped for a period of time for various reasons but as I have stated above, I am not investigating historic issues.)
29. At a January 2018 meeting to review payments, an officer recorded that she discussed financial housing support with Ms X. She said she told Ms X it was expected her housing support would end when Child B was 18. Ms X said the agreement at court meant that she could continue to receive financial support while Child B remained in education and until she was rehoused. The officer recorded that Ms X said she had not been offered any housing since making the agreement at court.
30. The Council says Ms X bid for four properties in 2011. It says she was offered one property but Ms X did not accept it. It says she has not bid for any properties since 2011.
31. The records I have seen do not support the Council’s claim that Ms X was offered a property and refused. However, the Council’s solicitors refer to Ms X having viewed a property and rejected it.
32. In an email in January 2018, following the above meeting, the Council confirmed with Ms X that Child B was the only child still living with her at House F. Mrs X denies she told the Council this.
33. On 23 January 2018 the Council considered Ms X’s request that Child B’s SGO allowance should be extended past his 18th birthday. It confirmed it would continue to provide his allowance for over four months, until the completion of a college course he had started before his 18th birthday.
34. This letter was followed up with another letter in February 2018 saying that as Child B would be 18 soon, which was the age at which the SGO ended, payments towards the shortfall in Ms X’s rent would also be ending. The letter said the Council had considered that Child B was on a course and as such had agreed, as above, to continue to make SGO payments until 30 June 2018. It would also pay any shortfall in Ms X’s rent until that day as well. The Council referred to Regulation nine of the SGO Regulations, as cited above at my paragraph 14.
35. Ms X’s solicitors wrote to the Council in May 2018, complaining about this decision and another issue regarding the level of allowance Ms X had been receiving since 2013/4.
36. The Council responded in June 2018, saying:

• Ms X had actually been overpaid during the period, and
• The shortfall was part of an SGO support plan, which had now expired. It said the agreement was an interim measure until Ms X bid for and secured a Council property large enough for her and her children. The Council claimed that even though Ms X had high priority, other than some bids in 2011, Ms X had not bid for any properties.

37. In September 2018, Ms X used a different firm of solicitors, who represent her now. In their letter of complaint to the Council, they stress that the 2009 court agreement says the Council will pay any shortfall, “…for the duration in which [Ms X] and [Child B] reside in the property whilst awaiting transfer of [Ms X] to Council accommodation…”.
38. They also say that the order specifically said that the Council should pay the shortfall while the children were in her care and until such time as the local authority rehoused her and her birth son.
39. The order does not refer to Ms X’s birth son. It only refers to Child A and Child B.
40. The Council responded in December 2018. It argued that the agreement was, “part and parcel of the support plan for the Special Guardianship order (SGO).” It says that, “…the agreement does not bind [the Council] to paying [Ms X’s] shortfall indefinitely and unconditionally.”
41. The Council also says that the agreement was conditional upon Ms X bidding for a suitable property in Group F (if the children stayed with her and were minors) or in Group C (if the children left and Ms X was seeking to go back to public housing.)
42. It argues that Ms X failed to bid for any properties except for in 2011.
43. It said that Ms X was given notice of the cessation of the Special Guardianship support in February 2018 but went on to sign a tenancy agreement in July 2018. It says she is liable for any shortfall that arose from 30 June 2018, the date the Council’s support ended.
44. Ms X says she was advised by her previous solicitors to enter into a renewed tenancy agreement.
45. The Council says Ms X can still bid for a two-bedroom property because this is what she surrendered initially. It says she will be given top priority to do so, but that she must bid.
46. In July 2019 Ms X provided evidence to the Council that she is registered disabled. She said that D was her carer. The Council completed a medical assessment but did not conclude that Ms X was so severely disabled that she requires a carer to live with her. Therefore, it remained of the view that Ms X was only eligible for a two bedroom bid for a property, for her and Child B.

Analysis

47. Ms X’s solicitors say that the Council should have continued to pay Ms X’s shortfall in rent until she and D were rehoused. The agreement does not say this. It does not refer to D.
48. The argument made by Ms X or her solicitors is also that while Ms X is awaiting transfer to a council property with Child B, the Council should have been paying her rent shortfall.
49. It denies that she ever turned down the offer of a property. The Council says that she only made four bids for a property and these were in 2011.
50. I do not think it is relevant to my decision whether Ms X bid or did not bid during the period of the special guardianship. That was her choice. The Council would never have been able to force her to accept a property she did not like and could not force her to bid.
51. The agreement is clear that any support provided to Ms X was part and parcel of the special guardianship arrangement, which ended in June 2018.
52. The supporting witness statements to court, one of which I have referred to in my para 18 and 19, support the Council’s contention that both parties would have been aware of the intention behind this agreement. Ms X’s solicitors focus on the paragraph that refers to her and Child B being supported until they were re-housed. But I consider that a reasonable reading of the whole agreement notes that it related specifically to the period of time when Ms X was special guardian for Child A and B. It envisaged this period ending and what Ms X would do then. It said that as she would have given up her tenancy to take on the role of special guardian, it would be reasonable that she should have top priority to go back to a property like that which she had left. It specifically stated that a three bedroom house would be a reasonable specification while Ms X was a special guardian and that when she was no longer acting as a special guardian, she should return to a two bedroom specification.
53. If we were to understand the agreement in the terms Ms X’s solicitor has interpreted it, it would mean that so long as Ms X and Child B decided to live in House F, they could do so, supported by the Council. They would not have to bid on any properties and would not have to accept any other properties. I do not consider that to be a reasonable interpretation.
54. This interpretation also does not align with the SGO Regulations. As above, Regulation nine sets out that support ceases to be payable to a special guardian when a child attains the age of 18 unless he continues in full-time education. The Council continued to provide support until Child B finished his course. It also continued to pay the rent shortfall until that date to support the SGO in line with Regulation six. It is not at fault for considering that it was no longer required to provide that support.
55. Ms X chose to enter into a renewed tenancy agreement with her landlord even though she had been informed by the Council that it would not be paying her rent shortfall. She says she chose to take the advice of her then solicitors in that regard, but that is not the fault of the Council.
56. The Council delayed in answering the complaint she registered with her second and current set of solicitors. However, as it had already addressed the issues in its response to her initial complaint, I do not consider this delay caused a significant injustice.
57. The Council has not acted in any way at fault. It has considered the terms of the 2009 agreement in a reasoned and logical way.

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Final decision

58. I have not found the Council at fault. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman