The Ombudsman's final decision
Summary: The complainant, a special guardian, complained that the Council misled her about the availability of a special guardianship allowance to care for her grandson. The Council accepts that the complainant had her hopes raised, but it is satisfied that she was not entitled to an allowance. We have found fault by the Council in raising the complainant’s expectations and, to remedy the injustice caused, the Council has agreed to apologise and make a small payment. The complainant also complained about earlier matters, dating back to 2013, having seen our public report about the Council’s approach to family foster carers. We decided that this complaint was too old to investigate. We have completed our investigation and are closing the complaint.
The complaint
The complainant, who I refer to as Mrs X, has been looking after her grandson (B) since 2013. In 2019, she obtained a Special Guardianship Order (SGO) which gave Mrs X parental responsibility for B. She complained that the Council told her in May 2019 that it would be paying her a SGO allowance, only to withdraw this offer in August 2019. And it failed to deal with her complaint about this properly or provide any support to her.
Mrs X complained to the Ombudsman in October 2021, having seen a public report we issued against the Council about payments to family carers.
What I have investigated I investigated the above complaint. Matters, which I have not investigated, are set out in the last paragraph of this statement.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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) Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
I have investigated the Council’s actions since 2019. I exercised discretion to look at this complaint even though Mrs X had not complained to us within the twelve months of when she realised something had gone wrong. But she had approached her Member of Parliament and complained to us promptly after she saw the public report of October 2021.
I made enquiries of the Council, considered Mrs X’s written information and I spoke to her on the telephone.
What I found
Legal and administrative arrangements Children are considered a ‘child in need’ if their development is likely to be impaired if services are not provided.
Private or informal family arrangements A private, or informal, family arrangement happens when a close relative has agreed with the parent to take on the care of the child. These are often referred to as private proceedings.
This informal arrangement can be confirmed in court in a private law order called a child arrangement order. This sets out with whom the child should live, spend time or other contact arrangements, and gives the holder of the order equal parental responsibility for the child with the parents. This order lasts until the child is sixteen.
Under this arrangement there is no right to any financial support from the council although councils have discretion to provide financial assistance if it is considered necessary.
Where a council takes legal action to remove a child from his/her parents, the child is often placed in the care of the council and becomes a looked after child. Councils will often then place the child with relatives, and they can be paid a fostering allowance.
These are referred to as public proceedings.
The Adoption and Children Act 2002 came into force in December 2005. It provided a new legal status, a special guardianship orders (SGO), for non-parents who wished to care for children in a long term, secure placement.
A SGO granted by a Court gives the special guardian parental responsibility for a child who is not their own. It does not entirely remove the parental responsibility of the birth parent but limits it. Special guardians may be entitled to a financial allowance from the council, subject to a means test and in accordance with the council’s policy, which should be based on the statutory guidance.
Statutory guidance The SGO Regulations and Guidance 2005 and 2016 set out the possible support services which can be provided, including counselling, advice, information and financial support. The then Department of Education and Skills (DfES) produced a suggested model means test for adoption and SGO financial support payments.
The statutory guidance says councils must have policies explaining how family and friends carers are made aware of the eligibility criteria for financial support and, when means testing applies, how to apply for any such financial help, and how and when decisions are made about eligibility.
As well as regular financial support, financial assistance can be given for legal costs and to meet the child’s therapeutic needs. Councils can also give assistance for the purpose of ensuring the continuance of the relationship between the child and the special guardian including training, mediation and respite.
Regulation 6 says a council can pay an allowance in circumstances including where: It is necessary to ensure the special guardian can look after the child; Where the child “needs special care which requires a greater expenditure of resources than would otherwise be the case because of illness, disability, emotional or behavioural difficulties or the consequences of past abuse or neglect”.
All special guardians (whether the SGO was obtained in private or public proceedings) are entitled to request an allowance and might also be able to ask for help with childcare, education related help and therapy, if required. The allowance is means tested and therefore there is no guarantee that an allowance will be paid.
The Council’s policy The Council says of its policy that: “It should be noted the provision of financial support is not to maintain the Special Guardian’s former standard of living. Caring for any child by its very nature will make demands on income and is part of the financial responsibility that an adult with parental responsibility assumes for a child. It is specified in the guidance that the central principle is that financial support should be payable in accordance with the Regulation 6 to help secure a suitable special guardianship arrangement where such an arrangement cannot be readily made because of a financial obstacle or where a child requires special care which requires a greater expenditure”.
The Council says that it follows the statutory guidance and awards allowances in line with Regulation 6, subject to a means test.
Key events Mrs X says that she was asked by the Council to look after B in 2013 because his parents were having difficulties in caring for him. Mrs X says that the Council asked her to apply for a SGO, but she was worried about the impact this would have on her daughter (B’s mother).
The Council was involved and regarded B as a child in need. In July 2015, at a child in need meeting, it was agreed that Mrs X would apply for a child arrangement order (which would determine B’s living arrangements with his mother still being involved). Mrs X says that she was unaware that she might have received financial support from the Council had the Council placed B into her care.
The Council says that, at this point (2015), it was hoped that B’s mother would be able to care for him in future. So, a child arrangement order was appropriate. After Mrs X obtained this order, the Council closed the case because it was satisfied B was in a safe and secure placement.
In July 2018, the Council received notification that Mrs X had applied for a SGO. Mrs X says that she had to do this because B’s parents were harassing her, and harassing B, and she needed more parental responsibility. It was a very difficult time for her.
The Council was requested to do a report by the Court. The Council referred this to Agency C, its provider of adoption and special guardianship services. Agency C completed a report and a draft support plan and said that a financial assessment was being carried out but was awaiting a decision from the Council.
The Council says that the support plan was not approved by the Council.
In April 2019, the Court made a SGO. Mrs X says that the social worker from Agency C, and the finance team, told her that she would be eligible for a special guardianship allowance. Mrs X says that she had completed the means test form and had been asked to provide her bank details. Mrs X assumed the allowance would then be paid directly into her account and this is what she was led to believe.
The Council says the Court report did not refer to any financial support being provided.
Mrs X says that she chased Agency C many times to enquire when she would receive the allowance. In August 2019, she was told by Agency C that she was not eligible because she had obtained the SGO in private proceedings.
Mrs X’s complaint Mrs X complained to Agency C that she had been told she would receive an allowance, that there was a delay in telling her that she would not, that she was not told of any right to appeal this decision and she was not receiving any support.
On 4 October 2019, the complaint response from the manager at Agency C clarified that the complaint about a lack of support had been resolved and that social workers would be visiting her.
The manager explained that the Council determined whether an allowance would be provided for those who obtained a SGO in private proceedings and that the Council: “has discretion to provide post order support, including financial support but is not required to do so. Decisions about whether to grant an allowance rests with the local authority (the Council)”.
The manager stated that, as a result of Mrs X’s complaint, Agency C had changed its procedures so that it was made clear that, where the SGO was obtained in private proceedings, it was for the Council to decide whether an allowance would be made. The manager apologised for raising Mrs X’s expectations and for the delay in telling her that she was not entitled.
The Council’s comments Initially, Mrs X was told that, because she obtained a SGO in private proceedings, (i.e. B was not a looked after child by the Council), she was not entitled to an allowance.
The Council considers that there has been some confusion created by using the terms private and public proceedings. It confirms all special guardians, however the SGO was obtained, are entitled to ask for an assessment for support and financial help. However, because of Mrs X’s complaint, special guardians are now not automatically sent forms to complete (as Mrs X was) but are told that they can apply for an assessment of their support needs.
In Mrs X’s case, the Council is satisfied that Agency C’s decision was correct even if initially wrongly explained. The placement of B with Mrs X has been a long standing and secure one, that B was never a looked after child and B has no special needs which required additional expenditure. So, Mrs X did not meet the criteria under Regulation 6.
The Council says that Mrs X has been offered support available to all special guardians.
Mrs X’s comments Mrs X says that, had she not agreed to look after B, he would have been in care. She considers that the Council never explained to her the implications of the various ways a child can be protected and placed away from parents with relatives.
Mrs X has provided the evidence that she was asked to complete necessary forms to receive the SGO allowance. She says that she struggles financially to look after B and was looking forward to receiving financial help. While she is fully committed to B, she feels she has had to make certain sacrifices to provide him with a stable home.
Contrary to what the Council says, Mrs X says that she has received no support.
Analysis The Council accepts Agency C, acting on its behalf, misled Mrs X. It raised Mrs X’s hopes of receiving an allowance whereby she would be able to provide financially better for B.
The Council is correct: there does seem to have been some confusion about the eligibility for support between special guardians, who obtain a SGO in public proceedings, with those who obtained one in private proceedings.
On the evidence available, my view is that Mrs X had her hopes raised that she would be receiving a SGO allowance and had even provided her bank details. It was a significant disappointment to her that she was subsequently told this was not to be. Mrs X was also wrongly told that, obtaining a SGO in private proceedings, excluded her from being eligible. So, not only was she misled, but she was given incorrect information. This is fault.
I recognise that the Council says that, because of this complaint, it is now made clear that all special guardians can apply for an assessment of their support needs, including financial support, and the Council is satisfied that its procedures are in keeping with statutory guidance.
The Council also considers that, despite Mrs X being misled, or given incorrect information, the decision not to allow an allowance was based on the requirements set out in Regulation 6.
Agreed actions
I am satisfied that Mrs X has suffered an injustice by being misled and wrongly informed. This has caused avoidable distress. There was also a delay in telling Mrs X the correct position and she will also be left wondering whether the decision not to award an allowance has been correctly made.
Where there has been avoidable distress, the Ombudsman normally recommends a symbolic payment between £300 to £1,000 depending on the severity and vulnerability of the complainant. I consider that raising Mrs X’s hopes of an allowance, only to dash them, will have had a significant impact given the difficulties she says she was experiencing in caring for B.
To remedy this, the Council has agreed that, within four weeks of the date of the final statement, it will: a) apologise and make a symbolic payment of £1,000 to remedy the injustice.
I had also recommended a fresh assessment of Mrs X’s support needs and whether she might now be eligible for an allowance. But Mrs X has said that she would be unwilling to engage with this. So, I have removed this recommendation.
I am satisfied that the Council has learnt from this complaint and no procedural recommendations are required.
Final decision
The Council has accepted fault. I have recommended a way to remedy the resulting injustice which the Council has accepted. I have therefore completed my investigation and am closing the complaint.
Parts of the complaint that I did not investigate Mrs X complained that the Council failed to support her in 2013 or provide sufficient information before she agreed to look after B. Had she had this information, it might have made a difference to her in respect of the support she could have received.
Mrs X complained to the Council about events of 2013 to 2015, having read about our report (19 014 589) concerning the Council’s failures to recognise family carers as entitled to financial support in certain circumstances. Mrs X says she only became aware of the fact that something had potentially gone wrong in 2013 when she saw publicity about the report.
The 2021 report asked the Council to consider complaints resulting from the publicity where the events occurred within the last five years. As Mrs X’s complaint involved events more than five years ago, the Council declined to consider it.
I decided that I should not investigate this complaint because the Ombudsman set out the time frame for the Council to investigate historical complaints. Mrs X’s complaint falls outside this timeframe and therefore I do not consider I can exercise the Ombudsman’s discretion to investigate it.
Investigator's decision on behalf of the Ombudsman