Local Government Ombudsman recommends individual and service level remedies following council failings towards two children and their special guardians
Background
Mr and Mrs X started caring for two children (referred to in the decision as ‘B’ and ‘C’) as family foster carers after the children were removed from their home because of serious concerns about their welfare. Throughout the period of care proceedings, Mr and Mrs X were paid a fostering allowance. They were then assessed as special guardians and the council supported the making of an application to the family court for a special guardianship order (SGO) to be made in respect of both children. Before the order was made, Mr and Mrs X repeatedly asked the council for support and advice to understand their rights and entitlements, but they did not get a response.
Mr X recalls being told by the social worker that, as special guardians, he and his wife would be entitled to receive the fostering allowance for two years after the making of the SGO. This information was recorded in the SGO support plan, but the allowance was stopped soon after the SGO was made. The payments were reinstated after Mr X pursued the issue. A year before the expiry of the two-year period, Mr X asked the council for financial support to continue for longer. His emails about this were initially not responded to and the request was eventually denied. Mr X said the response to his request was “cold and unsympathetic to the fact that [he and his wife] had taken on the care of their two nieces in difficult circumstances”. The family started receiving the means-tested SGO allowance after the expiry of the ‘extended fostering allowance’ period.
The SGO support plan also stated that both special guardians “had access to advice, support and a helpline from a SGO website, commissioned by the council”. Mr and Mrs X said they were not given the required access details and it became clear that “many of the social workers were unaware of this website”.
Mr and Mrs X also asked the council for additional therapeutic support for B, who has complex needs and an education health and care (EHC) plan. They were told B’s school was responsible for this, despite special guardians’ entitlement to additional financial support through the Adoption Support Fund (ASF). The Ombudsman notes in his decision that the council appeared not to be aware of this. Eventually, an application was made to the ASF, and B started receiving weekly therapy sessions which, according to Mr X, have been very helpful and “had B had this sooner…it could have made a substantial difference to her wellbeing”.
The complaint
Mr X first complained that:
- There was poor communication from the social worker and failure to offer sufficient and timely support when Mr and Mrs X became the children’s special guardians;
- The council failed to give sufficient advice, training and information, including on relevant allowances, entitlements, and continuing support and advice;
- The family was provided with incorrect information about the SGO allowance entitlement, meaning the family did not receive the correct allowances for 12 months;
- The council failed to provide financial support or information about the psychological help available for B, which caused a delay of 18 months in B accessing therapy;
- The Multi Agency Safeguarding Hub (MASH) failed to communicate with the family promptly following an incident involving the children’s father.
The complaint was investigated by the local authority across all three stages of the Children Act 1989 representations procedure. At stage 2 of the investigation, an independent investigator divided the complaint into four main subjects: Communication and relationships; Provision of training and information; Allowances and finance; Issue surrounding the Multi-Agency Safeguarding Hub (MASH). All complaints apart from the one relating to the MASH were upheld and a range of recommendations were made. They included: “that all social workers should know the difference between foster carers and special guardians and [be] aware of the support available to the latter” (which the council implemented by delivering training to staff, commissioning a new post-SGO support service and developing “leaflets, posters and newsletters to keep special guardians up to date”). The stage 2 report also recommended a payment to Mr and Mrs X for the avoidable distress and frustration.
A stage 3 review panel accepted the outcomes of stage 2 and, subsequently, the Deputy Director of children services apologised in writing to Mr and Mrs X, accepting that the service provided fell below acceptable standards. The council offered a payment of £500 but Mr X declined to accept this.
Mr X then complained to the Local Government and Social Care Ombudsman. Based on the detailed investigation of the complaint by the local authority and its acceptance of faults, the Ombudsman did not reinvestigate the complaints but instead focused on the impact of the faults on the family, and whether the remedies offered were sufficient.
The legal framework
Special guardianship orders A special guardianship order (SGO) is an order made by the family court. It authorises a child to live with someone other than their parent and appoints that person a special guardian. The special guardian (who must be aged 18 or over) acquires parental responsibility. Unless there’s another order in force, the special guardian is entitled in law to exercise parental responsibility to the exclusion of others with parental responsibility for the child (apart from another special guardian). There are some limitations on the sole exercise of parental responsibility by the special guardian and in those cases authorisation from the court, or the consent of all those with parental responsibility, could be required. If a child is in care prior to an SGO being made, they stop being looked after when an SGO is made (i.e., the care order is discharged). This is set out in sections 14A-14G of the Children Act 1989.
Special guardianship – financial assistance and allowances Regulation 3 of The Special Guardianship Regulations 2005 sets out the special guardianship support services which local authorities must provide in their area. These include: counselling, advice and information; financial support, which may be cash (insofar as it relates to special guardianship); services to enable children, parents, and current and prospective special guardians to discuss matters relating to special guardianship; assistance, including mediation, connected to children seeing and spending time with their parents, relatives and other people who are important to them; services connected to the therapeutic needs of the child; and assistance focused on the relationship between the child and their current or prospective special guardian (e.g., training, short breaks or mediation). Regulation 6 states: Financial support is payable … to a special guardian or prospective special guardian— (a) to facilitate arrangements for a person to become the special guardian of a child where the local authority consider such arrangements to be beneficial to the child’s welfare; or (b) to support the continuation of such arrangements after a special guardianship order is made. This support is available in specified circumstances, i.e.: - Where the local authority considers it necessary to ensure that the special guardian, current or prospective, can look after the child; - Where the child needs special care which requires greater expenditure than would otherwise be the case because of the child’s illness, disability, emotional or behavioural difficulties or the consequences of his past abuse or neglect; - Where the local authority considers that it is appropriate to contribute to any legal costs; - Where the local authority consider that it is appropriate to contribute to the expenditure necessary for the purposes of accommodating and maintaining the child, including e.g., furniture and domestic equipment, adaptations, transport, clothing and toys. Eligibility for financial assistance to special guardians is means-tested and assessment must take into account “any other grant, benefit, allowance or resource” available to the relevant person (regulation 13). However, local authorities must disregard the means-test in some cases and has the power to disregard it in others (see regulation 13(4)-(5)). Regulation 7 enables local authorities to continue to pay the fostering allowance (at the same rate) for up to two years in situations where special guardians were previously foster carers. The two-year period is considered “transitional”; it is designed to “give the family time to adjust to their new circumstances” (see paras 42-43 of statutory guidance, Special guardianship guidance (2017)).
Extension of the Adoption Support Fund to therapeutic support for children who were in care immediately before the making of an SGO In 2016, the Adoption Support Fund (ASF, launched in 2015 to provide support and therapy to children who had been adopted) was extended to cover therapeutic support for children living in England who were in care immediately before the making of an SGO. The ASF is currently expected to be available until March 2025 and is capped at £5,000 per child per year for therapy. However, “in exceptional cases, where there is an urgent need for higher cost support, local authorities … are asked to match-fund applications”. Applications for the ASF are made by local authorities based on a need assessment. (The online application form is here).
The Ombudsman’s analysis and findings
The Ombudsman agreed with the council’s findings of faults in relation to poor communication and inadequate training and information, including that relating to allowances and finance.
Commenting on the issue of entitlement to continued fostering allowance, the Ombudsman said:
“Of particular concern is that the [provision of] transitional fostering allowance for two years, post the making of the SGO, where children were previously looked after, has been in existence for some time, and the ASF was available since 2016. My view is that it is fault that the council has not ensured that children’s social workers and managers have been aware of both”. (Paragraph 41; emphasis added)
The Ombudsman also noted that the council’s own guidance document did not reference special guardians’ entitlement to two years’ fostering allowance after the making of the SGO in situations where they were foster carers immediately before the making of the SGO.
“Being asked to take on long-term a relative’s child/children is a very significant decision, and it is so important that relatives have all the necessary information to make an informed decision [however quickly that decision needs to be made].
My view is that Mr X and his family experienced avoidable distress and frustration caused by the council’s faults. Mr X also had to chase up information and answers, both prior to the making of the SGO, and afterwards, at a time when Mr and Mrs X were taking on the care of two vulnerable children. The council’s faults would have undoubtedly compounded an already stressful situation.
I also consider that the council should have made the application for [Adoption Support Fund] sooner and it was fault not to do so. Given the success and helpfulness of the current therapy, on the balance of probability, it is likely that Child B would have benefitted had this been provided sooner. Therefore, there has been a lost opportunity for her.” (Paragraphs 45-47; emphasis added)
The Ombudsman confirmed that the council was taking the learning from this complaint very seriously and recognised the council conceding that “support and available information for special guardians has been lacking, and relevant staff [were] unaware or confused about the SGO process and entitlements” and the effort made by the council to ensure improvements in the future, including through commissioning of a new post-SGO support service for new special guardians. This team sought input from Mr X and other special guardians and used it to shape the service.
Recommended remedies
The Ombudsman’s guidance on remedies states:
“When someone has suffered injustice, we try to put them back in the position they would have been but for the error. Our focus is on restoring services that have been denied. Where that is not possible, we will try to think of remedies that acknowledge the impact of the faults. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic, rather than purely financial”.
In this decision, the Ombudsman also remarked on the role of investigations and suggested remedies in supporting organisational learning and service improvements, as well as made clear an expectation that senior officers from councils “make effective, timely and specific apologies for the faults we have identified”.
Individual remedies
The Ombudsman recommended that, within one month of the final statement, the local authority:
- Increases its payment to Mr X to £1,000 in recognition of the avoidable distress and frustration over a prolonged period;
- Pays Mr X a further £500 in recognition of the delay in providing Child B with therapeutic support (with the payment being used for the child’s benefit);
- Considers, in consultation with Mr X, whether the council should “write an age appropriate letter to Child B to apologise for its delay in making the [Adoption Support Fund] application”.
Service improvements
The Ombudsman asked the local authority to:
- Provide the Ombudsman with an update on the production of information materials about support and financial entitlements available to the relevant children and young people and their special guardians, including prospective, and an update on how the council is ensuring knowledge and awareness among children’s social workers and managers of the special guardianship process and associated entitlements;
- Consider any complaints from special guardians who were once family foster carers and who become aware of this decision in line with the Ombudsman’s findings and recommendations; this applies to any complaints about avoidable delays in applying for the Adoption Support Fund in the context of special guardianship.
You can read the full decision (dated 3 October 2023) here: Hampshire County Council (22 012 027)
For a list of primary and secondary legislation, statutory and non-statutory best practice guidance relating to special guardianship orders, please read the ‘Children who live with a special guardian or for whom a special guardianship order has been applied for by a local authority’ here.
To learn more about special guardianship orders, including statutory requirements relating to children and young people’s wishes and feelings in that context, entitlement to and the scope of special guardianship support services, and leaving care rights and entitlements for children and young people who were looked after before becoming the subject of an SGO, read our law map on this topic.
