Summary: Mr and Mrs X complained about the Council’s decision to stop Special Guardianship (SG) Allowance payments in respect of their niece, F. The Council’s decision to stop the payment was in line with its policy. However, the appeal panel’s report is flawed and does not show how the panel considered relevant evidence Mr and Mrs X submitted. The Council agreed to hold a new appeal review with a fresh panel to remedy the uncertainty this has caused. It will also pay Mr and Mrs X £509.81 after it found it had underpaid their SG Allowance during 2019.

The complaint

1. Mr and Mrs X complains about the Council’s decision to stop Special Guardianship Allowance payments in respect of their niece, F, who they started looking after in November 2018 after the death of F’s mother. Mr and Mrs X say the Council stopped the payments after two years and has refused to reinstate them.
2. Mr and Mrs X say the matter has put them at a financial disadvantage which is causing distress and uncertainty.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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.

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How I considered this complaint

7. I spoke to Mrs X about her complaint and considered information she provided.
8. I considered the Council’s response to my enquiry letter.
9. Mr and Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Arrangements for the care of a child

10. Where those with parental responsibility are unable to care for a child, a child may be cared for by friends or family. These arrangements can be made in two ways:
• The child can be “looked after” by the council. Under the Children Act 1989, councils have a duty to accommodate children who appear to the council to require it as a result of: (a) there being no person with parental responsibility for the child; (b) their being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing them with suitable accommodation or care. A council can identify a family member or friend who agrees to foster the child. A council meets its duty to accommodate the child and the person is deemed to be a family and friends foster carer; or
• A private family arrangement. This happens when a close relative agrees with the parent to take on the care of the child. The Council does not have a duty to provide support in these cases but may choose to do so.
11. The courts have considered the question of whether arrangements for a child to live with a relative or friend are truly a private arrangement. In a key case, the Court said where a council has taken a major role in making arrangements for the child to be cared for by the friend or relative, it is likely to have been acting under its duties, under the Children Act, to provide the child with accommodation.

Special Guardianship orders and allowances

12. Special Guardianship is an order made by the Family Court that places a child or young person to live with someone other than their parent(s) on a long-term basis. The person with whom a child is placed will become the child’s Special Guardian.
13. 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.
14. If support is provided the council must review the arrangements at least once a year.

The Council’s Special Guardianship Allowance policy

15. The Council’s policy says all carers proposing to care for a child under a SGO can request financial support. It says the payment of financial support is at the discretion of the Council and cannot be relied upon as a regular source of income. The policy says any payment is paid for a maximum of two years unless there are exceptional circumstances warranting continuation of the payment.
16. The policy states financial support is payable for two years initially as transitional financial support. When the two years has nearly expired the Council will let carers know whether it intends to end the payments. Carers can appeal the decision, providing any relevant evidence in support of their case which a review panel will consider. This includes an overview of the carer’s financial circumstances. As part of the review the Council carries out a financial checklist of the carers income, reasonable expenditure and ensures eligible benefits are being accessed.
17. The policy states the main role of the review panel is in part to ensure a consistent approach to decision making is provided with a clear rationale of any decisions and recommendations.

What happened

18. In November 2018 F was of primary school age when her mother, Ms Z died. Mr B, F’s father and her mother’s ex-partner expressed that his wishes were for F to go and live with Mrs X who was F’s Aunt and his sister. In the immediate period after Ms Z’s death, F went to stay with her half-siblings however she moved in with Mrs X four days later.
19. Case records show Mrs X and her husband Mr X were happy to look after F as it was her father’s wish. The records note Mr and Mrs X were foster carers but understood caring for F was a family arrangement with no payment involved. They show Mr and Mrs X had decided to seek a SGO so F could remain living with them.
20. In early 2019 the Council agreed to provide financial support towards Mr and Mrs X’s solicitors fees in applying for an SGO. In April 2019 the Council carried out a financial checklist of Mr and Mrs X’s finances with a view to providing a discretionary transitional support payment if the application for the SGO was successful.
21. The Council completed a Special Guardianship (SG) support plan in November 2019 which said it would provide Mr and Mrs X with a SG allowance for up to two years.
22. The court granted Mr and Mrs X an SGO for F in December 2019. The Council wrote to Mr and Mrs X outlining the proposed SG allowance. The letter outlined the weekly payment Mr and Mrs X would receive which it said would be for a maximum period of two years. The Council said this letter was sent to a wrong address and was therefore returned to it as undelivered. The Council said it has no records of it resending the letter to Mr and Mrs X.
23. The Council said that as F was never a looked after child and the arrangement for her to live with Mr and Mrs X was a family arrangement then they were not entitled to an allowance for the period before the SGO was granted. However, following contact from Mr and Mrs X’s MP it agreed to backdate the payments to March 2019.
24. The Council carried out the annual review of the SG allowance in April 2021. Records show Mr and Mrs X declared no financial concerns and were aware the payments would end in December 2021 which was the end of the two year period.
25. In September 2021 the Council wrote to Mr and Mrs X advising the SG allowance would end in December 2021. Mr and Mrs X appealed the decision and provided evidence which they believed showed exceptional circumstances of why the payments should continue.
26. Records show the review panel considered Mr and Mrs X’s request. The minutes and deliberations show the panel considered Mr and Mrs X’s circumstances including a financial checklist which showed they had a monthly surplus. The panel concluded Mr and Mrs X had no financial strains or debt issues. It said there was no evidence of exceptional circumstances or additional needs that would warrant ongoing financial support.
27. Mr and Mrs X were unhappy with the panel’s decision. They pointed out that the Council had included their fostering allowance which they received as part of their role as foster carers in the financial checklist. They said that was not income and should not be means tested.
28. The Council accepted Mr and Mrs X’s appeal and completed a new financial checklist which showed they had a monthly deficit of over £450 and presented it for the review panel to reconsider. The review panel notes were updated to reflect the panel were aware of the updated financial checklist. However, the conclusion remained the same.
29. Mr and Mrs X complained to the Council about the decision to end the SG allowance. They complained the review panel reports conclusions and reasonings were the same despite the financial checklist being revised to show a deficit. Mr and Mrs X questioned why the review panel concluded they had no financial strains when the financial checklist showed a deficit. Mr and Mrs X said they have lost out on an allowance due to F living with them under an SGO.
30. The Council responded to Mr and Mrs X. It said the second review panel were fully aware of the revised financial checklist although it acknowledged the report remained largely unchanged. It also acknowledged there was nothing in the report to clearly show the amended financial checklist showed a deficit. The Council said F was not classed as a looked after child and the arrangement to look after F was a family one. Therefore, any payment was discretionary.
31. Mr and Mrs X remained unhappy and complained to us.

The Council’s response to us

32. The Council reiterated to us much of what it said to Mr and Mrs X in its complaint response to them. It did however state that on reviewing the case it had found an administrative error in the backdated payments made to Mr and Mrs X in 2019. The Council has said it will now pay Mr and Mrs the underpayment of £509.81.

My findings

33. The records show Mr and Mrs X understood the arrangement was a private one and that F was never classed as a looked after child. Therefore, there was no overall obligation for the Council to provide a payment or allowance to Mr and Mrs X.
34. The Council provided a discretionary SG allowance for a period of two years which was a discretionary payment following the SGO which it agreed to backdate. Upon agreeing the SG allowance the Council wrote to Mr and Mrs X explaining the payments and that the payment was up to a maximum of two years. The Council accepts that letter was returned as undelivered and that there are no records showing it resent the letter. It probably therefore did not resend the letter. That was fault. However, records show Mr and Mrs X were aware the payment was for two years and therefore I do not find this fault caused them an injustice.
35. The Council decided to end the SGO allowance after two years and in line with its policy it wrote to Mr and Mrs X informing them of its decision and their right of appeal which they exercised. The review panel based its initial decision on a financial checklist which showed Mr and Mrs X had a surplus of funds and therefore decided there were no exceptional circumstances to justify further payments. The review panel notes show the panel considered family circumstances, F’s progress and needs and the family’s finances. There was no fault in how the panel carried out the initial review.
36. However, Mr and Mrs X pointed out the Council had incorrectly calculated their income on the financial checklist. The Council appropriately reconsidered the checklist which then showed a deficit and presented this new evidence to a second review panel.
37. The Ombudsman is not an appeal body. We cannot substitute our view for that of the review panel. Our role is to consider whether there was fault in the way the panel reached its decision. The second review panel report findings are identical to that of the first report. Its summary still concludes Mr and Mrs X have a monthly surplus and no financial strains. This is at odds with the financial checklist which shows they have a monthly deficit. There is no evidence in the report showing how the panel considered the updated financial checklist and why it did not affect the decision. That is fault. Because of this fault I cannot say the panel has fully considered the updated financial checklist. Had it done so I would have expected the summary and conclusion to reflect this. This fault has caused Mr and Mrs X uncertainty around whether the outcome may have been different.
38. In its response to us the Council has accepted an administrative error in underpaying Mr and Mrs X when it backdated the SG allowance payments during 2019. The Council has agreed to pay Mr and Mrs X the underpayment of £509.81 which is suitable to remedy the injustice caused.

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Agreed action

39. Within one month of the final decision the Council agreed to:
• arrange and hold a new appeal review of Mr and Mrs X’s request for continued SG allowance payments with a fresh panel. Mr and Mrs X should have the opportunity to re-present their evidence in support of the request. The Council should ensure the review report accurately reflects and explains the panel’s decision making. The Council should backdate the payments if the review panel conclude the payments should continue.
• pay Mr and Mrs X the £590.81 underpayment from 2019.
• remind officers who sit on review panels to ensure their reports and conclusions accurately reflect the evidence submitted by appellants and explain their reasons.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice this caused.

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Investigator's decision on behalf of the Ombudsman