The Ombudsman's final decision
Summary: Miss X complains the Council has unfairly developed its policy on Special Guardianship allowances, which has impacted the children in her care. The Ombudsman find no fault in how the Council decided to implement a new policy.
The complaint
Miss X complains the Council has unfairly applied a policy which changes how much she is entitled to under a special guardianship order.
Miss X complains this means she is struggling to care for the children under the order.
Miss X complains the Council has failed to understand the impact the change has had on them.
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 investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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) 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)
How I considered this complaint
I considered Miss X’s complaint and information she provided.
I also considered information from the Council.
I considered previous reports by the Ombudsman about special guardianship allowances.
I considered comments I received on a draft of my decision.
What I found
Legislation and guidance Special Guardianship Under a Special Guardianship Order the Courts appoint someone, often extended family members to be a child’s special guardian. They then become responsible for all day to day decisions about the child.
Councils play a central role in the process. The Special Guardianship Regulations 2005, as amended, say councils may provide finance to special guardians to support continuing the arrangement after a Special Guardianship Order is made. The support is known as a Special Guardianship Allowance.
Councils need to consider the Statutory Guidance for local authorities on the Special Guardianship Regulations 2005, as amended. This means councils must substantially follow the guidance unless there are good or cogent reasons to do differently. The Guidance says that in deciding the a Special Guardianship Allowance, a council should consider the fostering allowance that would have been paid if the child had been fostered. Paragraph 65 of the Guidance states that “in determining the amount of any ongoing financial support, the local authority should have regard to the amount of fostering allowance which would have been payable if the child were fostered. The local authority’s core allowance plus any enhancement that would be payable in respect of the particular child, will make up the maximum payment the local authority could consider paying the family. Any means test carried out as appropriate to the circumstances would use this maximum payment as a basis.”.
Case law has considered this matter. In 2010 (R v Kirklees Council) the Court found paying Special Guardianship Allowance as a fixed percentage of fostering allowance without any justification did not comply with the Guidance. It found that councils should pay Special Guardianship Allowance at an equivalent rate to foster carers. A second case in 2012 (R v London Borough of Merton) found that councils should use the National Fostering Network’s minimum allowance as a starting point for calculation.
One of our earlier reports against North Tyneside MBC confirmed councils should not calculate Special Guardianship Allowances as a percentage of fostering allowance.
We have issued two focus reports about this area of council activity: “Family Values: Council services to family and friends who care for others’ children” (2013); and “Firm Foundations: complaints about council support and advice for special guardians” (2018). In these we draw on lessons from complaints, including those where councils did not set out clear guidance on how they calculate Special Guardianship Allowances and had faulty policies.
What happened Miss X was granted a Special Guardianship order by the Court for Child Y and Child Z.
Previously, the Council was using the rates set by the Fostering Network to pay its foster carers and Special Guardians. It had paid the rate recommended by the Fostering Network to both foster carers and special guardians, with foster carers receiving extra fees for qualifications they may hold.
The Council wrote to all foster carers and special guardians in its area. It told the rate at which it would be paying special guardianship allowance would be changing in line with changes to the fostering allowance.
The Council held a six-week consultation where it invited foster carers, special guardians and those with Child Arrangement Orders (CAO) to comment on the proposed changes.
In the communication, the Council said that it would no longer be using the National Fostering amounts for allowances, as these had been removed. It would therefore be using the allowances set by the Department of Education and the means tested model recommended. The Council recognised that this would mean payments would reduce, and that older children would see a higher decrease than younger children. It proposed the rate changes for older children would not come into force until the child moved age bands.
The Council explained that by using the model provided by the department of education, the fostering allowances would change, therefore changing the special guardianship allowances.
The Council presented the proposal to the Child and Adults board. The board agreed the changes and the final proposal was signed off to be implemented.
Miss X complained to the Council about the change in payments for Special Guardians. She also complained the new payments unfairly penalised Child Y by paying less as they were older.
In response to Miss X’s complaint, the Council explained how it developed the new policy. It said that it recognised the changes would mean Child Y’s amount changed sooner than Child Z’s due to the change in age bands.
Miss X did not agree with the Council’s complaint response. She felt the new rates set by the council had been decided unfairly. Miss X also highlighted to the Council that she had a child of her own for whom she was claiming child benefit for, which reduced Child Y and Child Z’s claim to child benefit.
The Council recognised that it had not suitably considered the child benefit for Miss X’s own child in its calculations for Child Y and Child Z. It agreed to adjust the allowance and repay Miss X the difference in payments.
It did not uphold Miss X’s complaint the allowance amount had been decided unfairly, and that it disproportionately impacted Child Y.
Miss X remained unhappy with the Councils response and complained to the Ombudsman.
Analysis Under the statutory guidance the basic principle is that a council should start with the fostering allowance, then make whatever means-tested reductions and adjustments that are suitable. If a council wants to vary from the general approach set out in the guidance it needs clear reasons for doing so.
In response to my enquiries, the Council has explained that it uses the Department for Education’s model of paying foster carers and special guardians. It accepts the base rate proposed by the Department of Education to pay its foster carers, and special guardians are paid in line with the model.
The Council has been able to evidence the new policy was discussed and reviewed by the Children and Adults board, and that it carried out consultation before this with foster carers and special guardians.
The new policy recognises that it would be unlawful for the Council to pay a fixed percentage amount of the fostering allowance. This is why it adopted the means tested model from the Department of Education. This meant each special guardian would receive an assessment and result related to their income.
The Council has explained this in its policy when it says “Financial support should be paid to help secure a suitable arrangement where this is not possible because of a financial obstacle. Each case must be assessed on its own facts. It would not be lawful, for example, to pay a flat rate to all Special Guardians, or a fixed percentage of fostering allowance. The local authority must take account of any other grant, benefit, allowance or resource available to the person in respect of his needs as a result of becoming a Special Guardian of a child”.
In Miss X’s case, the Council has applied the allowance amounts from the Department of Education in its assessment of her. This resulted in the amount it would now be paying Miss X for both children.
To make sure the policy did not disproportionately impact children, the Council said that changes to income would only occur when children moved into the next age band. Child Y has moved into the new pay band which is why their rates changed. Child Z has not yet moved into the new age band which is why their rates have not yet been changed.
The Council has already accepted that it first had the wrong child benefit amount recorded for Miss X. This resulted in a lesser amount of Special Guardianship allowance being paid, however it apologised and back dated the payment for this.
Councils can write and review its own policies, in line with government guidance and legislation. In this case, the proposed changes were to also be reviewed by committee.
The Council has been able to evidence that it carried out consultation and discussed the proposed changes at the children and adults board. The new policy follows the model proposed by the Department of Education, and considers the minimum fostering allowances. Therefore, the Councils decision to implement the policy is one the Council is entitled to make.
The Ombudsman cannot challenge decisions where the decision-making process is not flawed. In this case, I cannot see any fault in how the Council reached its decision to implement the new policy, and therefore it is not a decision the Ombudsman can challenge.
I appreciate Miss X has said the Department of Education’s model is only a guide, and therefore Councils can pay more if there is good enough reason. However, this would be at the Council’s discretion. The Council has been able to evidence the model it previously used was no longer suitable and therefore it had to develop a new policy.
Final decision
I have now completed my investigation. I find no fault by the Council on how it reached its decision to change the policy for Special Guardianship allowances.
Investigator's decision on behalf of the Ombudsman