Rochdale Council loses High Court challenge to ombudsman
Date published: 19 December 2019
Councillors in Rochdale have been told to give proper consideration to a critical report about the way the council pays Special Guardians, after the council unsuccessfully challenged the Local Government and Social Care Ombudsman’s decision and powers in the High Court.
In May 2019, the Ombudsman criticised Rochdale Metropolitan Borough Council for underpaying Special Guardianship Allowances to a family in the area.
The case involved grandparents who had been granted a Special Guardianship Order to look after their grandchild, giving them responsibility for day-to-day decisions.
The grandparents complained to the Ombudsman because 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, caselaw, or its own internal legal advice.
However, instead of complying with the decision, the council challenged its findings in the High Court.
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. The basic principle was that fostering allowances should be used as the starting point for these payments, with means-tested reductions and adjustments as appropriate. 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 Local Government and Social Care Ombudsman’s role is to remedy injustice and share learning from investigations to help improve public, and adult social care, services. The report asked the council to calculate and backdate all Special Guardianship Allowance payments, for which the grandparents are eligible, to November 2013 (the publication date of the Ombudsman’s first focus report).
The Ombudsman has the power to make recommendations to improve processes for the wider public. In this case, it has recommended that the council should reconsider its policy for Special Guardianship Allowances in light of the statutory guidance, caselaw and the Ombudsman’s focus reports.
Another recommendation is that the council should also identify other Special Guardians similarly affected and make backdated payments to them too.
Responding, Gail Hopper, director of children’s services at Rochdale Borough Council, 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 special guardianship orders payments.”
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