Summary: Miss X complains the Council has failed to provide the support agreed during the Special Guardianship Order process and has unreasonably rejected her application to the housing register. The Ombudsman finds fault with the Council for how it managed the Special Guardianship process, for failing to provide support, and for how it considered Miss X’s application to the housing register. The Council has agreed to pay Miss X a financial remedy, implement support and carry out service improvements.

The complaint

1. Miss X complains:

• The Council misled her about the support she would receive as a special guardian for her grandchildren.
• The Council agreed to support her and rehouse her family and the children as part of the SGO and supervision order but has failed to do so.
• Children’s Social Care is aware the housing remains unsuitable, and refuses to recognise its duty to her grandchildren, as per the agreed SGO support.
• The Council has failed to provide the agreed support and access to the housing register.
• The Council has not exercised discretion to consider her circumstances, which the Council itself created.
• The Council has left her and all the children in her care in unsuitable accommodation.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
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. 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

6. I considered Miss X’s complaint to the Council and information she provided. I also considered information from the Council.
7. I considered comments from Miss X and the Council on a draft of my decision.

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What I found

Guidance and legislation

Special Guardianship orders/allowances

8. 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.
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.
10. If support is provided the council must review the arrangements at least once a year.

Housing

Homelessness

11. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them and anyone who lives with them to continue to live there. (Housing Act 1996, Section 175)
12. Councils can suggest alternative solutions in cases of potential homelessness where these would be suitable and acceptable to the applicant. However councils must not do this to avoid their legal duties, especially the duty to make inquiries into the applicant’s homelessness. The Ombudsman has criticised councils for ‘gatekeeping’ practices, for example, failing to take a homelessness application at the earliest opportunity. (Homelessness Code of Guidance for Local Authorities, paragraphs 2.3 and 6.4)

Housing Allocations

13. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
14. Reasonable preference
15. An allocations scheme must give reasonable preference to applicants in the following categories:

• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds;
• people who need to move to avoid hardship to themselves or others;
  (Housing Act 1996, section 166A(3))

16. Decisions and review rights
17. Councils must notify applicants in writing of the following decisions and give reasons:

• that the applicant is not eligible for an allocation;
• that the applicant is not a qualifying person;
• a decision not to award the applicant reasonable preference because of their unacceptable behaviour.

18. The Council must also notify the applicant of the right to request a review of these decisions. (Housing Act 1996, section 166A(9))
19. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

The Council’s allocations policy

Qualification for the Register

20. The Council’s policy for its housing register says applicants do not qualify to join the Housing Register if they have not lived in the Borough for a continuous period of 3 years before their application.

Local connection to the Council

21. The Council will accept applicants as having a local connection is that they have been placed in specialised housing by the Council and are continuing to receive services from the Council.

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What happened

22. Miss X has grandchildren that were previously subject to a child protection plan. The Council approached Miss X and asked her to care for her grandchildren. Miss X lived in a neighboring borough with her own family.
23. Miss X agreed to care for the children and the Council later asked her to become a Special Guardian for the children. Miss X agreed and the Council applied to the court for a Special Guardianship Order (SGO) for Miss X to care for the children long term.
24. As part of the SGO procedure, the Council had to carry out a detailed assessment of Miss X, the extended family, and the long-term potential of her caring for her grandchildren. This included whether Miss X could provide suitable caring environments to meet the children’s needs.
25. The reports by the Council during the SGO process said “the assessor had concerns about the suitability of the accommodation long term and the accommodation is not suitable”.
26. Miss X was granted an SGO for her grandchildren and approached the Council’s housing department to start the process of moving. She says that she was led to believe that because the Council had said the accommodation was unsuitable for the children long term, that she would be eligible to join the Council’s housing register.
27. Miss X provided several letters from the Council’s own Social Services department to the Housing department. These letters were written to support Miss X to get local housing in order for her to continue to be the children’s carer and meet their needs.
28. The Council declined Miss X’s application to the housing register. It said this was because she had no local connection to the area.
29. Miss X also tried to make a homelessness application, but it was closed as the Council said it did not receive further communication from Miss X.
30. Following the granting of the SGO, the Council kept the grandchildren on a supervision order for one year. This allowed the Council to monitor the wellbeing of the children with regular meetings and visits. When the supervision order finished, the department closed the case for the grandchildren, as Miss X was meeting all the children’s needs and there were no longer concerns for their wellbeing. The Council continued to pay Miss X an SGO allowance for the children.
31. Miss X complained to the Council. She said:

• She had been led to believe throughout the SGO process that she would be rehoused as social services had said the property was unsuitable for the children long term.
• Social care had written to housing to ask for her to be rehoused but this was refused.
• Housing did not properly considering the social care issues of the children, as well as their long term needs.
• Housing had wrongly rejected her application to the housing register has she had not lived in the area for the last three years.
• The Council were refusing to recognise that Miss X was not being provided with the correct support.

32. The Council’s final response said:

• It had carried out a review of the decision to decline the application to the register.
• Miss X did not meet the criteria for the application as she had no local connection.
• It had considered her homelessness application but she had not responded to communication.

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Analysis

33. Although Miss X has only submitted one complaint to the Council, I have exercised discretion to open a second complaint for Miss X. This is because the Council’s response did not recognise or address the alleged failings of its social care department and lack of support for Miss X and her grandchildren. To make the investigation as efficient as possible, I have combined my views of both complaints into one decision.

Social Care

34. The Council was clear in its reports for the SGO that it felt the children were best cared for by Miss X, but the living environment was not suitable long term and it recognised her concerns about this. It felt that if she was to care for them long term under the SGO, alternatives would need to be found.
35. After the SGO was granted by the Court, officers and senior managers from Social Care wrote letters for Miss X to the Housing department expressing the need for Miss X to move with the children into the Council’s own area in order for Miss X to best be able to meet the children’s needs under the SGO. In effect, Social Care were communicating that it had put Miss X, her family and the children in the circumstances they were in, and that it recognised she needed to be supported.
36. Miss X says that she was led to believe that she would be supported to get alternative housing, as the social workers had said her current accommodation was unsuitable for the children. Having reviewed the reports and letters written by the Council, I agree that the Council’s communication about the matter suggested that Miss X would be eligible to be rehoused.
37. When it became obvious that Miss X was not going to be rehoused, the Council’s Social Care department should have reevaluated whether it could provide further support to Miss X and the children. Given the Council had already included in its reports and letters that the accommodation was not suitable long term for the children, it should not have closed the case without reviewing this support need. This was fault by the Council. While I cannot say that if the case had remained open Miss X and the children would have been rehoused, she has been caused uncertainty and there has been missed opportunities to help support her.
38. In response to my investigation, the Council has recognised its Social Care department should not have closed the case, but instead it should have transferred it to its long-term kinship team for support. Whilst this wouldn’t have provided an allocated social worker, it would have provided the gateway to services and support for Miss X and her grandchildren. Failure to do this was further fault by the Council, resulting in two years of lost opportunity of support and services for Miss X and her grandchildren.
39. The Council has said that as it was providing a financial package to Miss X, it was also reviewing what support it provided on a yearly basis when reviewing the financial package, and that Miss X could have raised concerns in a yearly review. However, the communication from various departments of the Council was that Miss X was not going to the get the support with her housing needs, and each department was closing her case. It would therefore not be reasonable to expect Miss X to know she could continue raising issues during the financial review when multiple departments had already refused her.

Housing

40. When Miss X approached the Council’s Housing department it told her she was not eligible to make an application to the housing register as she had no local connection. In response to my enquiries, the Council has said it did consider whether to exercise discretion, but it cannot evidence doing this.
41. The Council’s policy allows for it to exercise discretion for exceptional circumstances. As the Council has not been able to show whether it considered exercising discretion on a situation of its own creation, I consider the Council has fettered its discretion in failing to consider the circumstances of this particular case.
42. Additionally, the Council’s housing register policy says that people who have not lived in the area for three years prior to the application do not qualify. Whilst Miss X may not have been in the area for three years, the children (placed by the Council) had lived there for 3 years prior and formed part of Miss X’s household. The Council should therefore have considered whether this meant the application could be accepted.
43. I cannot say that if the Council had accepted the application to the register, that Miss X would have been successful in bidding on an alternative property by now. However, I am satisfied that this has caused significant uncertainty. I recommended the Council pay Miss X a financial remedy for this uncertainty which it has now agreed to. In response to my draft decision, the Council has also agreed to reconsider her application to the housing register, with specific consideration of these exceptional circumstances and the previous residency of the children.
44. The Council asked Miss X to put herself in the position of being overcrowded to meet the needs of the children, with a view to supporting her with this. The letters and communications between Social Care and Housing recognise that Miss X is now in overcrowded, unsuitable accommodation because of the Council’s actions. The Council said it closed Miss X’s homelessness application because she did not respond to its communication. On balance, I am satisfied there was conflicting information coming from the Council’s different departments about the support Miss X was entitled to, and it is likely she was finding it difficult to understand. Considering this, if the Council cannot accept Miss X’s application to the housing register, it should invite her to remake a homelessness application.

Inter-departmental communication

45. Throughout this investigation it is clear there has been poor communication and a failure to understand processes between departments. It is obvious the different departments of the Council are acting without knowledge and understanding of each other, and this is leading to harmful impact on service users.
46. This is further fault by the Council which has failed to be addressed during the complaints process. The Council is aware that it made intentions of support and raised expectations which could then not be met. The Council should have taken responsibility for this during its complaints process and looked to make improvements in its service. I therefore recommended the Council take immediate action to identify how both departments can learn from this investigation. This should be to clarify what is achievable in future and ensure there no further promises of support that cannot be delivered or further fettered discretion occurs.

Complaint handling

47. The Council’s complaint handling failed to address any of the concerns by Miss X that she had not received the support needed by Social Care. Miss X’s complaint about housing clearly stems from the promises she feels were made to her as part of the SGO process. Therefore, the Council should have addressed this as part of the complaint response, or in a separate complaint response.
48. If the Council had addressed these concerns during the complaints process, the Council would have identified that it had wrongly closed her case sooner and reopened the case earlier. The failings by the Council’s complaints department further impacted Miss X and caused a greater delay in accessing the support she was entitled to.

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Agreed action

49. Within 4 weeks the Council has agreed to

• Apologise to Miss X for the above fault identified.
• Pay Miss X £2500 in recognition of the distress caused. This is above what the Ombudsman usually recommends, however, I have given careful consideration to the exceptional circumstances and distress caused to all of Miss X’s family members.
• Pay Miss X £1000 in recognition of the uncertainty caused. The Ombudsman does not usually make separate payments for distress and uncertainty. However, in this case, I consider the uncertainty caused by Miss X to be significant and separate from the distress caused, as most of the fault also resulted in uncertainty and loss of services.
• Pay Miss X £300 in recognition of the time and trouble in failing to properly consider and address her complaint.
• Reconsider her application to the housing register with specific reference to the circumstances and evidence how the Council has decided whether to exercise discretion. If the Council decides to accept Miss X onto its housing register, it should backdate her application to the date of her first application.
• If not recently carried out, the Council should carry out an immediate review of the SGO support and arrangements. When the review is carried out, if the Council has identifies further support for the children, it should provide a proposed remedy to the Ombudsman to be provided to the children for the impact of this support being lost in the time the case was wrongly closed.

50. Within 12 weeks the Council has agreed to

• Review how it ensures that cases are transferred to the long term kinship team.
• Arrange for an interdepartmental meeting to review current internal expectations and agreements. This should be with a view to ensuring that departments have accurate expectations of each other and do not give false expectations to service users about what each department can provide.
• Review how it can ensure that it communicates with Social Care service users about expectations of support, and how it can avoid making agreements of support before identifying whether the support is achievable. This should have particular focus on how officers and managers clarify whether support is achievable.
• Review how the Council will ensure the Housing department are evidencing how and when it is considering exercising discretion on applications to the housing register.
• Share a copy of the final decision with the relevant social care and housing mangers.

51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have completed my investigation. I find fault with the Council for how it managed SGO support to Miss X, and for how it considered her application to the housing register.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman