Summary: Ms X complained the Council did not consider her complaint about Special Guardianship and foster payments for a child she cares for through the children’s statutory complaint procedure. The Council was at fault for failing to consider Ms X’s complaint through the children’s statutory complaint procedure. The Council will apologise and pay Ms X a symbolic amount to recognise the frustration caused to her, and consider her complaint through the correct procedure.

The complaint

1. Ms X complained the Council did not properly consider her complaint that it unfairly deducted child benefit from the Special Guardianship Order (SGO) it pays her for a child she cares for and did not pay her appropriately when she was the child’s foster carer. Ms X said this caused her frustration and the deductions caused her family financial hardship. Ms X wanted the Council to properly consider her complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

5. I read the documents Ms X provided and discussed the complaint with her on the phone.
6. I considered the documents the Council provided in response to our contact.
7. Ms 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

Relevant legislation and guidance

Special Guardianship Order

8. A Special Guardianship Order 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.
9. 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. If support is provided the council must review the arrangements at least once a year.

Statutory children’s complaint procedure

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 guidance sets out who can complain and what can be complained about. A complaint by a relevant person about an unwelcome of disputed decision or the impact on a child or young person of the application of a council policy should be considered under the children’s statutory complaint process. A ‘relevant person’ includes any council foster carer and Special Guardians.
12. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
13. 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.
14. 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.
15. 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.
16. 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.
17. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure.
18. The statutory guidance sets out at paragraph 2.4.1 that Special Guardianship Regulations came into force in 2005 and under those regulations some functions may be subject of a complaint under the children’s statutory procedure. The guidance specifically references complaints about financial support for Special Guardians.

What happened

19. Ms X cares for a child, Y. Ms X initially cared for Y as a foster carer. In 2023 a Special Guardianship Order (SGO) was made for Ms X to care for Y.
20. The Council made payments to Ms X under a fostering allowance initially and then an SGO allowance.
21. Ms X complained to the Council in April 2024. She complained about the way the Council calculated the SGO allowance it paid her and that it was deducting child benefit from the payments. Ms X also complained she had previously not been paid the appropriate level of fostering payments based on her skills level and did not receive the complex care needs payment that were appropriate for Y’s needs. Ms X asked the Council to consider her complaint under the children’s statutory complaint procedure and provide a back payment of the missed amounts.
22. The Council acknowledged Ms X’s complaint and told her it would consider the matter under the corporate complaints procedure. It did not explain to Ms X why it was not using the statutory complaint procedure. The Council’s records show that it used the corporate complaint process as it considered the complaint was ‘in relation to how the council has applied its policy and procedure historically when calculating the special guardianship allowance’. It decided there was no complaints about how it provided support or intervention with the child in the preceding year.
23. The Council responded to Ms X’s complaint at the end of May and said:
• it had applied its policy in relation to the payments. It was reviewing the policy and procedures currently;
• it acknowledged that Ms X stated Y had a lot of needs and financial support was important;
• it had not paid the skill level payment for fostering as Ms X had not provided evidence she had completed the mandatory training to be eligible for the payment; and
• Ms X was not eligible to apply for the complex needs payment for Y.
24. The Council wrote to Ms X again the following month and explained how it developed its policy around SGO payments in 2019. It said it “considers cases on their individual circumstances if money is an issue is creating hardship or obstacles to children remaining in their family under permanency arrangements”. It said under its policy any families who were really affected by the deduction of child benefit from SGO payments could access support which may be additional one-off payments, or contributions to nursery costs. It said there was no fault in it deducting child benefit from Ms X’s payments and did not uphold her complaint.
25. Ms X asked the Council to consider her complaint at stage two in June. She said she did not agree with the Council’s decision. She said her income had significantly decreased as a result of caring for Y and she had not received any additional financial support since the SGO had been granted.
26. The Council responded to Ms X. It said it had previously investigated and explained the legal background for its decision and did not uphold her complaint.

My findings

27. The Council responded to Ms X’s complaint through the corporate procedure. It did not explain to Ms X why it was using the corporate procedure, instead of the children’s statutory procedure as she requested. However, records show it was because the Council felt the complaint was about its application of a policy about historic issues, not recent ones.
28. The Council was required by law to have considered Ms X’s complaint through the children’s statutory complaint procedure, as she requested in her first complaint. Ms X is a relevant person and complained about the impact on a child of the application of a Council policy. The statutory guidance explicitly references complaints about financial support for Special Guardians as a matter that should be considered through the procedure. The failure to properly consider the complaint was fault and caused Ms X frustration and time and trouble.
29. 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, we expect people to complete the complaints procedure before we will consider whether there were any flaws in how the Council investigated their concerns. The Council has not yet considered Ms X’s complaint through the children’s statutory complaint procedure and I have therefore not investigated Ms X’s substantive complaint about the SGO and fostering payments for Y.

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Agreed action

30. Within one months of this decision the Council will take the following actions:
• Write to Ms X and apologise for the frustration and time and trouble caused to her by the Council’s failure to consider her complaint through the children’s statutory complaint procedure and pay her a symbolic amount of £250 to recognise the same. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
• Begin a stage two consideration of Ms X’s complaint under the children’s statutory complaint procedure.
• Review how it screens complaints about SGO and foster care payments and ensure the screening process is in line with the statutory guidance as to whether a complaint should be considered through the corporate complaint procedure or the children's statutory complaint procedure.
31. The Council will provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and avoid the fault reoccurring.

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Investigator's decision on behalf of the Ombudsman