Council’s high court challenge rejected
ROCHDALE council has been ordered to pay two grandparents the full fostering allowance they are owed for the last six years.
The authority unsuccessfully challenged the Local Government and Social Care Ombudsman’s decision that they had been underpaying Special Guardianship Allowances to a family in the borough.
The High Court concluded the council’s policy was at odds with statutory guidance and the principles established in previous court cases, and that no rational explanation had been put forward to justify this.
In light of the decision, Rochdale council said they were “very sorry” and would rectify the “error”.
The council’s challenge was dismissed in its entirety by the High Court and it has since had to pay the Ombudsman’s costs.
Michael King, Local Government and Social Care Ombudsman, said: “The ability to scrutinise defective council policies goes to the heart of our work and it would have been a remarkable and regrettable erosion of our jurisdiction had this case been successful. The High Court has endorsed our decision and clearly rejected the council’s challenge.
“Special guardianship orders offer invaluable stability to children who, for whatever reason, cannot live with their birth parents. We issued focus reports in 2013 and again in 2018 offering advice and guidance to councils on how they should support Special Guardians, after finding a number of families had not been treated fairly.
“Given the background to this case, we sincerely hope elected members will now honourably accept our recommendations to correct the council’s error and protect other families in the future.”
The case involved grandparents Mr and Mrs B, who had been granted a Special Guardianship Order to look after their granddaughter in 2011, giving them responsibility for day-to-day decisions and around £120 a week in a fostering allowance.
They complained that the council was at fault for failing to increase the allowance they received, which meant they received less financial support than they should have.
Their allowance did not increase in line with the fostering allowance rates nor were they given the age band increase for the child, which they had been told they would receive.
The Ombudsman’s investigation found the council’s policy on paying the allowance, which had not been agreed by any formal committee, was not in line with statutory guidance, case law, or its own internal legal advice.
In response to enquiries, the report says the council has acknowledged that Mr and Mrs B “have not received a consistent approach, causing confusion and uncertainty” and they have offered to comply with the new rate of £132, minus a deduction for child tax credit which the complainants receive.
The report said: “By freezing the support, a considerable and unjustifiable differential emerges between the allowances, which effectively leaves families in the same place as in those councils we have already criticised for paying Special Guardianship Allowances as a fixed proportion of fostering rates.
“We are satisfied Mr and Mrs B have been left with less financial support for their grandchild than would have been the case if they had been treated fairly and without fault.”
They said a 2013 report on the issue had “fallen on deaf ears” and that there were “systemic problems which affect not just Mr and Mrs B, but potentially others in receipt of Special Guardianship Allowances from the council.”
To “remedy the injustice”, the Ombudsman has asked the council to calculate and backdate all payments for which the grandparents are eligible, to November 2013 (the publication date of the Ombudsman’s first focus report), within three months.
They have recommended that the council reconsider its policy for Special Guardianship Allowances and identify other Special Guardians similarly affected and make backdated payments to them too.
Gail Hopper, director of children’s services, said: “Our special guardians do such an important job looking after young people in difficult circumstances, keeping families together, and we appreciate all they do.
“We are very sorry for this payment error and the inconvenience this has caused.
“In line with the recommendations of the report, we will be reviewing the payments that any families who are in receipt of Special Guardianship payments receive and putting right any errors that have occurred by making appropriate compensatory payments.
“We will also be consulting in the New Year on a new policy around our SGO payments.”
‘We are satisfied that Mr and Mrs B have been left with less financial support’