In March 2020, this policy was reviewed and updated as required. Section 7, Planning Meeting was updated to emphasise the importance of rigorously checking the background of the prospective special guardian. In Section 10, Report to the Court - Regulation 21 additional detail has been added setting out in detail the areas which the report to court is required to cover. A new Appendix 2: Rapid Evidence Review on Special Guardianship (CoramBAAF) which links to a Rapid Evidence Review on Special Guardianship completed by CoramBAAF was also added.
Derby City Council uses a Strengths Based Approach for all work with children and families.
- Legislative Context
- Introduction and Background
- Who may Apply?
- Parental Responsibility
- The Circumstances in which a Special Guardianship Order may be made
- Planning Meeting
- Approval of Special Guardianship for Children in Care
- Referral from Local Authority Foster Carer - Applying without the Support of Local Authority
- Report to the Court - Regulation 21
- Discharge of Special Guardianship Order
- Entitlement to Leaving Care Services
- Special Guardianship Support
- Financial Support
- Where the Special Guardian was Previously the Child's Foster Carer
- Urgent Cases
- Appendix 1: Scheme for Special Guardians
- Appendix 2: Rapid Evidence Review on Special Guardianship (CoramBAAF)
1. Legislative Context
- Adoption and Children Act 2002 &Amendment to Children Act 1989;
- The Special Guardianship Regulations, England 2005;
- The Special Guardianship (Amendment) Regulations 2016;
- Family Procedure Rules 2010;
- The Children Leaving Care Act 2000;
- Children and Families Act 2014;
- Special Guardianship Guidance - Statutory Guidance for Local Authorities on the Special Guardianship Regulations 2005 (as amended by the Special Guardianship (Amendment) regulations 2016.
2. Introduction and Background
Special Guardianship provides an 'alternative legal status for children that offers greater security than long term fostering but without the absolute legal severance from the birth family that stems from an adoption order'. (Special Guardianship Guidance DFES 2005).
It addresses the needs of a significant group of children, who need a sense of stability and security but who do not wish to make the absolute legal break with their birth family that is associated with adoption.
It will also provide an alternative for achieving permanence in families where adoption, for cultural or religious reasons, is not an option.
A Special Guardianship Order can offer greater stability and legal security to a placement than a Child Arrangements Order.
Special Guardians share Parental Responsibility for the child with the parents but are entitled to exercise such responsibility to the exclusion of any other person with parental responsibility (apart from other special guardians). They also have the primary responsibility for day to day decision-making in relation to the child.
3. Who may Apply?
Applications for Special Guardianship may be individual or joint. Joint applicants do not need to be married. Special Guardians must be 18 or over and cannot be the parent of the child in question.
Subject to the above provisos the following persons may apply:
- Any guardian of the child;
- Where the child is in the care of the Local Authority, any person who has the consent of the Local Authority;
- A Local Authority foster carer who is a relative of the child or with whom the child has lived for 1 year immediately preceding the application (even if the Local Authority does not consent);
- Anyone who holds a Child Arrangements Order with respect to the child or who has the consent of all those in whose favour a Child Arrangements Order is in force;
- A Local Authority foster carer with whom the child has lived with for 1 year immediately preceding the application (even if the Local Authority does not consent);
- A relative of a child with whom the child has lived for 1 year immediately preceding the application (even if the Local Authority does not consent);
- Anyone with whom the child has lived for 3 years;
- Anyone who has the consent of all those with Parental Responsibility for the child;
- Anyone, including the child, who has the leave of the court to apply.
Any action/counselling undertaken must be recorded on the child's file.
Ideally, counselling should commence prior to any application being lodged with the court and the applicant should be advised to seek legal advice where appropriate. The purpose of the counselling is to ensure that the nature and implications of Special Guardianship are fully understood by the child, the Special Guardian and the birth parents and that their wishes and feeling are considered and recorded.
The prospective Special Guardians should be made aware of the need to obtain the personal details of their family for inclusion in the regulation 21 report for court (Special Guardianship Regulations 2005). The prospective Special Guardians should be seen at home, jointly and separately. The child should be seen in the company of the applicants so that a view can be obtained regarding the family relationships. Any other residents of the home should be interviewed and appropriate counselling provided.
The child needs to have an understanding of their birth origins as well as to be aware of the implications of special guardianship. They should be seen alone if the child is old enough and views must be recorded. Where a child has strong bonds with their birth parents it is crucial that this matter is given careful consideration and contact issues addressed.
The birth parents or anyone with parental responsibility also needs to be provided with counselling and advised regarding any available support arrangements. Any birth parent not agreeing to the application should be advised to engage a solicitor.
5. Parental Responsibility
A Special Guardian shares Parental Responsibility for the child with the parents but, subject to certain limited exceptions, is entitled to exercise such responsibility to the exclusion of any other person with parental responsibility (apart from another Special Guardian) and also has the primary responsibility for day to day decision-making in relation to the child.
The child's parents will continue to hold Parental Responsibility but their exercise of it is limited by virtue of the Special Guardian's right to exercise parental responsibility to the exclusion of any other holder of parental responsibility.
However, there are certain steps in a child's life which require the written consent of every-one with Parental Responsibility, for example:
- Changing the child's family name;
- The removal of the child from the United Kingdom for longer than 3 months.
A Special Guardianship Order made in relation to a Child in Care will replace the Care Order and the Local Authority will no longer share Parental Responsibility.
A Care Order, however, will not automatically revoke a Special Guardianship Order although the Special Guardian's exercise of Parental Responsibility will be restricted as the Local Authority will have ultimate responsibility for decision-making under the Care Order.
6. The Circumstances in which a Special Guardianship Order may be made
The Court may make a Special Guardianship Order in any family proceedings concerning the welfare of the child. This applies even where no application has been made and includes adoption proceedings.
Any person making an application for a Special Guardianship Order must give 3 months written notice to their Local Authority of their intention to apply. In relation to a Child in Care, the notice will go to the Local Authority looking after the child. In all other cases, the notice will be sent to the Local Authority for the area where the applicant resides. The Local Authority receiving the notice will then have a duty to provide a report to the Court.
The only exception to the requirement for 3 months notice is where the Court has granted leave to make an application and waives the notice period.
Where the Local Authority has received notice from an applicant or a request for a report from the Court, it should send written information about the steps it proposes to take in preparing the report to the prospective Special Guardian and the parents of the child in question. This should include information about Special Guardianship support services and how in the future to request an assessment of needs for support.
7. Planning Meeting
Once notice has been received that an application for Special Guardianship is to be made or where a court waives the need to give such notice, the notice or order should be passed to the allocated social worker or, if the child is not previously known, arrangements must be made for the case to be allocated to a social worker.
The social worker preparing the Court report should be suitably qualified and experienced. There are no specific requirements as to the level of qualification or experience required and it will be for the manager of the relevant social work team to ensure that the allocated worker is competent to write the report. It should be noted though that in conducting the investigation, the person preparing the report should analyse and consider the information they ascertain from and about the prospective special guardian. The approach should be objective and inquiring. Information should be evaluated, and its accuracy and consistency checked. The safety of the child is of paramount concern and it is vital that the background of the prospective special guardian is checked rigorously. The special guardian (with an appropriate support package) should be considered able to meet the child's needs at the time of the making of the order and in the future.
In all cases, there will need to be an assessment of the needs of the child, the suitability of the applicant(s), the proposed contact arrangements and the support needs of the child, parents and the prospective special guardian. CoramBAAF form C (Connected Persons (Family and Friends)) sections A - C should be used as a template.
The assessment of the applicants should include their medical history, the references received and the Disclosure and Barring Service checks (DBS)and other statutory checks undertaken for the assessment.
8. Approval of Special Guardianship for Children in Care
A formal referral to support the making of a Special Guardianship Order for a Child in Care can only be made following a statutory review at which Special Guardianship is recommended or at the request of the court during proceedings.
Adoption Agency Regulations 2005 state that a plan for permanence must always be considered at the second review (4 months following admission to Care). The review must consider any action necessary to provide permanence for the child and address the question of on-going contact with people who have parental responsibility for the child and significant others.
The prospective Special Guardian should write to the Social Worker to notify them of their intent to apply for an SGO. They must give written permission for statutory checks to be undertaken and sign and date the letter.
Special Guardianship as an outcome for a Child in Care must also be approved by the Permanency Panel or by a Head of Service outside of panel. The support plan must be specifically signed off by the Head of Service. For more information please see the Derby City Council Permanency Policy.
9. Referral from Local Authority Foster Carer - Applying without the support of Local Authority
This type of non-agency application should be a rare occurrence, as efforts should be made to encourage foster carers to work in partnership with the Department in order to meet the needs of the child. Financial support in such circumstances will be subject to assessment and means testing.
In this situation, foster carers who have had the care of a child for a year can apply for a Special Guardianship Order, once they have given 3 months notice of their intention to do so.
10. Report to the Court - Regulation 21
After 3 months have elapsed from the notice of intention to apply for an SGO, the application can be made. Where an application is lodged during proceedings, the time limit for the completion of the report will be set by court. The time limit for completion of the reports in all other cases will be set at the first hearing of the application. The information required for a Local Authority report is the same for all SGO applications (whether the application is made as a result of a recommendation at a Looked After Review or whether the court has asked the Local Authority to prepare a report during proceedings). Where comprehensive assessments have already been completed during proceedings, legal advice may be sought as to what use can be made of them as a substitute for the regulation 21 report.
The regulation 21 report is lengthy and the details required are prescriptive. The 2016 regulations extended the prescribed matters that must be addressed in the report. These matters now also include the following:
- An assessment of the nature of the prospective special guardian's current and past relationship with the child;
- An assessment of the prospective special guardian's parenting capacity including:
- Their understanding of, and ability to meet the child's current and likely future needs particularly any needs the child may have arising from harm that the child has suffered;
- Their understanding of, and ability to protect the child from any current or future risk of harm posed by the child's parents, relatives or any other person the local authority consider relevant, particularly in relation to contact between any such person and the child;
- Their ability and suitability to bring up the child until the child reaches the age of 18;
- Summary prepared by a medical professional.
- Implications of the making of a special guardianship order for those involved;
- Relative merits of special guardianship and other orders;
- A recommendation regarding special guardianship;
- A recommendation regarding contact.
In all cases it is important to accurately ascertain and report on the child's wishes and feelings. The report must be completed in conjunction with a Supervising Fostering social worker when the applicant is a foster carer. The child's social worker will complete the sections on the child and birth family and the Supervising social worker on the carer.
Written information should be sent to the prospective Special Guardian and to the parents of the child outlining the steps the Local Authority proposes to take in preparing a report. It should include information about support services and an assessment of support needs once completed, the Court Report should be submitted by the author(s) to their line manager(s) for approval. Four copies are required for court.
11. Discharge of Special Guardianship Order
A Special Guardianship Order can be varied or discharged on the application of:
- The Special Guardian (or any of them if there is more than one);
- Any parent or Guardian of the child concerned;
- The child;
- The Local Authority designated in a Care Order;
- Anyone in whose favour a Child Arrangements Order is in force with respect of the child;
- Anyone who immediately before the making of a Special Guardianship Order had parental responsibility for the child.
The following require leave of the court:
- The Child;
- The child's parents or guardians;
- Any step parent who has acquired but not lost Parental Responsibility;
- Anyone who had Parental Responsibility immediately before the Special Guardianship Order was made but now no longer does so.
Where the applicant for leave is a child, the court may only grant the child leave to apply if it is satisfied the child is of sufficient age and understanding. Where the applicant for leave is not a child, the court may only grant leave if there has been a significant change in circumstances since the Special Guardianship Order was made.
The court may in any family proceedings in which a question arises about the welfare of a child who is subject to a Special Guardianship Order, vary or discharge the Order and even in the absence of an application.
12. Entitlement to Leaving Care Services
Section 24(2) of the Children Act 1989 defines the persons qualifying for advice and assistance and includes a person who has reached the age of 16 but is not yet 21 and with respect of whom there is in force a Special Guardianship order (or there was at the point the child turned 18) and who was looked after immediately before the making of a Special Guardianship order. If those criteria are met, the child is a "Qualifying Child" within the meaning of the Act.
A 'Qualifying Child' does not however have access as of right to the same support as 'Relevant', 'Former Relevant' or 'Eligible' children.
The Local Authority who looked after the child prior to the granting of the SGO is responsible for aftercare support, however it may be more appropriate for the young person to seek support where they now live.
Since April 2016, children cared for by Special Guardians, who were looked after by the local authority immediately before the Special Guardianship order was made, may also be eligible for support via the Adoption Support Fund. This fund can be used to support essential therapeutic services for eligible families.
The Department for Education has recently changed the eligibility for the Adoption Support Fund. They have added in a new criteria of:
'left care under a Child Arrangement Order (CAO) to enable the assessment of a potential special guardian, while the CAO is in force. They remain eligible if a Special Guardianship Order is subsequently made'.
The full criteria can be found here: Adoption Support Fund (DfE)
13. Special Guardianship Support
13.1 Legal Context for Payments and Support
Each Local Authority must make arrangements for the provision within its area for a range of Special Guardianship support services. However, as with all children deemed 'in need' under section 17, Children Act 1989, support services should not be seen in isolation from mainstream services and it is important to ensure that families are assisted in accessing mainstream services and are aware of their entitlements to tax credits and social security benefits in addition to what services might otherwise be offered. Additionally, targeted services (e.g. within education or youth provision) should also be considered where appropriate.
13.2 Purpose and Vision of Derby's Scheme
Derby City Council aims to promote the welfare and improve the outcomes for children and young people who, because they are unable to live with their parents, are being brought up by members of their extended families, friends or other people who are connected with them.
Derby City Council is committed to supporting family/friend carers in a variety of ways.
The majority of children and young people can and will have their needs met using universal and targeted services. The Special Guardianship Order Allowance scheme recognises that some children and their prospective or actual carers may have additional needs arising from their individual circumstances. Therefore the scheme exists to provide essential support to underpin arrangements for children and young people who are placed with Special Guardians. Special Guardianship support could for example include:
- Financial support (see section 14);
- Services to enable children, Special Guardians and parents to discuss matters relating to the arrangements for the child;
- Assistance including mediation in relation to contact between the child and their parents, relatives or significant others;
- Therapeutic services for the child;
- Assistance to ensure continuance of the relationship between the child and the Special Guardian, including training to meet any special needs of the child, short break care, and mediation;
- Counselling, advice and information;
- If short break care is provided as part of a support package, the child would need to become 'Looked After' for the duration of the placement.
Special Guardianship Support plans will be subject to the agreement of the Deputy Head of Service responsible for that child if the child was previously looked after. Any proposed support plan which includes financial allowances will also need to be agreed by the Head of Service for Integrated Safeguarding.
13.3 Who is Responsible for Providing Support?
Where the child was previously Looked After, the Local Authority that looked after the child has responsibility for assessing and providing support for the first 3 years after the making of a Special Guardianship Order. Thereafter, the Local Authority where the Special Guardian lives will be responsible for the assessment and provision of any support required and should be notified in writing of the move if known.
If a child was not Looked After, the Local Authority where the Special Guardian lives has the responsibility for assessing and providing support.
However, on-going financial support which has been agreed before the Special Guardianship Order is made is the responsibility of the Local Authority that agreed it.
Derby is establishing a small 'Friends and Family' Team to provide support to children subject to Special Guardianship Orders.
13.4 Eligibility to Assessment for Special Guardianship Support
Where the child is Looked After or was Looked After immediately prior to the making of the Special Guardianship Order, the following people MUST receive an assessment at their request:
- The child;
- The Special Guardian or prospective Special Guardian;
- A parent (but only in relation to their need for support with contact and/or discussion groups).
Where the child is not Looked After or was not Looked After immediately prior to the making of the Special Guardianship Order, anyone MAY be offered an assessment of their need for Special Guardianship support services but the following are particularly relevant:
- A child with respect of who a special guardianship order is in force;
- The Special Guardian or prospective Special Guardian;
- A parent;
- A child of a special guardian;
- Any person who the Local Authority considers to have a significant on- going relationship with the child.
If a Local Authority receives a request from a person whom it has a discretion to assess but decides not to carry out an assessment, it must notify the person requesting the assessment that an assessment will not be undertaken and why it will not be undertaken so that the person requesting the assessment can decide whether to make additional representations, any such representations must be made within 28 days.
13.5 Assessment for Support
The level and extent of support should usually be established by undertaking a formal assessment at the point of completion of the court report (or post order if a special guardian has requested an assessment). The report will need to consider the child's needs and the needs of the prospective Special Guardian, including financial needs.
The assessment should be based on the Assessment Framework model and include the following:
- The developmental needs of the child;
- The parenting capacity of the Special Guardian or prospective Special Guardian;
- Family and environmental factors for the child;
- Comment on how life with the Special Guardian might be for the child;
- Any previous assessment of the child or Special Guardian that is relevant;
- The needs of the Special Guardian or prospective Special Guardian and their family;
- The impact of the Special Guardianship Order on the relationship between the child, parent and Special Guardian.
The social worker should also consult with relevant health and education services if, during the course of the assessment, it becomes apparent that identified needs relate to services provided by those other bodies.
At the end of the assessment and once the necessary approval has been obtained, the social worker must inform the person requesting provision of its outcome, including:
- Information about the outcome of the assessment and the reasons for it;
- Where it relates to financial support, the basis on which this is determined;
- The services (if any) that the Local Authority proposes to provide;
- If financial support is to be paid, the amount and conditions attached.
13.6 The Special Guardianship Support Plan
Where an assessment identifies the need for on-going support services, a draft Special Guardianship Support Plan must be completed. If a need for on-going support is not identified, this should be recorded on the child's electronic record and the family should be informed in writing.
Other agencies, such as education and health, may need to be consulted about the contents of the Plan.
The Plan should set out:
- The services to be provided;
- The objectives and criteria for success;
- Procedures for review;
- A named person to monitor the provision of services in accordance with the Plan.
Once the necessary approval for the draft/ proposed plan has been obtained, the social worker must send the proposed plan to the person requesting support. A period of 28 days should be allowed for that person to make representations about the proposed plan. The social worker should also give information to the person concerned about who to contact to obtain independent advice and/or advocacy.
Where representations are received, they should be referred to the relevant Deputy Head of Service to decide whether the draft support plan should be amended or confirmed. If these relate to financial support, they should be referred to the Head of Service. The allocated social worker must then write to the person concerned setting out the final Plan.
13.7 Review of Special Guardianship Support Plan
Special Guardianship Support Plans may be reviewed taking into account any change of circumstances affecting the support.
Reviews must take place at least annually with regards to any financial payments made. Carers will be contacted by telephone about the progress of the child and whether the support plan continues to be appropriate. Key professionals will also be contacted to confirm that the child's needs are being met within the placement. If there is no change in the child's situation and the carer does not require or need any support, no further action will be taken.
The reviews may be a paper exercise where there is no change or a minor change in circumstances. However, if there is a substantial change of circumstances (e.g. a serious change in the behaviour of the child) it would normally be necessary to conduct a new assessment of needs.
Any change to the Special Guardianship Support Plan will be subject to the approval of the relevant Manager. The Head of Service will be required to approve changes to financial support.
If the Local Authority decides to vary or terminate the provision of support after the review, notice in writing must be given and the person concerned should be given 28 days to make representations.
14. Financial Support
The general principle should be that where a person is seeking to make a permanent and substantial commitment towards a child by means of a Special Guardianship Order, this commitment by the individual should generally include a willingness to meet costs associated with such a commitment. It is recognised however that in some circumstances and for children with whom the Local Authority has been actively involved, financial support may be required to enable permanence plans outside of Local Authority care to be made. A decision to provide a Special Guardianship allowance can only be made by a Head Service or Service Director.
In formulating this policy due consideration has also been given to the responsibilities, roles and duties underpinning the respective orders and arrangements.
A Special Guardianship Order allowance is set at the equivalent of Derby's basic fostering rate for a child of that age. The amount of the Special Guardianship Order allowance (See Regulations 6 &7, The Special Guardianship Regulations 2005 as amended) does not include any payment of reward except where the special guardian was previously the child's foster carer (see Section 15, Where the Special Guardian was Previously the Child's Foster Carer). Claimants will be means tested unless they provide evidence to the local authority that they are in receipt of Income Support/Universal Credit or they were previously the child's foster carers. Derby City Council uses the Department for Education recommended standardised means test model. When considering providing financial support, Derby City Council will consider: the financial resources of the Special Guardians (including any financial benefit arising from the placement of the child e.g. child benefit, tax credit, Universal Credit, maintenance payments and any benefit which has been or can be claimed for that child); the amount required by the special guardian in respect of their reasonable outgoings and commitments and the financial needs that relate to the child, excluding mobility/attendance allowance/benefits related to disability. The assessment will be reviewed annually to determine that the allowance is still appropriate and consistent with legislation and departmental policy. See Appendix 1: Scheme for Special Guardians.
The payment of a Special Guardianship allowance may affect receipt of benefits and advice should be sought of the appropriate Benefit Agency.
However, it is not the function of Derby City Council to accept responsibility for income maintenance.
Help in determining eligibility to benefits can be provided by: Derby's Advice Service which can be contacted on 01332 643396 or 01332 643395.
The Local Authority must also take account of any other grant, benefit, allowance or resource available to the carer/special guardian in respect of his needs as a result of becoming a Special Guardian of a child. Financial support cannot duplicate or be a substitute for any other payment which the Special Guardian would be entitled to under the tax and benefit system. The worker will endeavour to ensure that the special guardian is aware of and takes advantage of all benefits and tax credits that are available to them.
The Special Guardian will be asked to complete a Financial Assessment Form, which when completed should be passed to the Finance Team which is responsible for carrying out means assessments.
Means may be disregarded in relation to:
- Initial costs of accommodating the child if they were a Child in Care;
- Recurring travel costs in contact arrangements;
- Any special case requiring greater expenditure due to illness, disability, emotional or behavioural difficulties or the consequences of the past abuse or neglect of a child previously looked after.
The only circumstance when the Local Authority MUST disregard means is when providing financial support in respect of legal costs (including fees payable to a court in respect of a child who is Looked After where the Local Authority support the making of the Special Guardianship Order).
14.1 Eligibility to Assessment for a Special Guardianship Order Allowance
Ordinarily, one of the following criteria must usually be met before Derby City Council will consider undertaking an assessment for a Special Guardianship Order allowance:
- That immediately prior to the Special Guardianship Order being made, the child/children were looked after by the Local Authority for a period of at least 3 months and the Special Guardianship order application is part of their Care Plan and has been confirmed with the Independent Reviewing Officer through the review process;
- The child/children are subject to a Special Guardianship Order as part of a disposal of Care Proceedings or as a direct alternative to care proceedings, whether or not the child/children were looked after by the Local Authority for a period of at least 3 months;
- Where following an assessment of the circumstances of the child and carer, the Head of Service agrees that the case is exceptional and the Local Authority supports the placement of the child with the person(s) taking the Special Guardianship Order.
The applicant must however live within the United Kingdom.
Anyone currently receiving a Special Guardianship allowance from Derby City Council who would not fit the above criteria will not lose their allowance with the introduction of this revised policy. However, it will continue to be reviewed annually to determine eligibility for an allowance.
Please note: If Derby City Council opposes the Special Guardianship order application but the applicant is successful in their application, the Local Authority will assess the applicant for eligibility of the allowance as if they had been in support of the order.
14.2 Discretionary Payments
The Local Authority will consider a settling in payment and /or 'one off' payments under section 17, for carers with a Special Guardianship Order who are experiencing financial problems. These discretionary payments can be considered whether the applicant would or would not be eligible for Special Guardianship Order Allowances. Eligibility for these Section 17 payments will be decided by the relevant manager applying the relevant statutory criteria under the Act.
14.3 Payment and Review Process
Once the means assessment has been carried out, the Finance Team should send written notification of the outcome to the relevant social worker, who, with the agreement of their Deputy Head of Service, must present this to the Head of Service for approval.
For new cases, payment commences as from the date of the Special Guardianship Order. In other circumstances, it is from the date payments are approved. The Finance Team should then write to the Special Guardian setting out the amount of financial support agreed by the Head of Service and information in relation to the following:
- Whether financial support is be paid in regular instalments and if so, the frequency of payment;
- The amount of financial support;
- The period for which the financial support is to be paid;
- When payment will commence;
- Conditions for continuing payment and date by which conditions are to be met, i.e. returning Review Forms;
- Arrangements and procedure for review and termination.
A copy of this letter should be sent to the Finance Team.
Where Special Guardians are in receipt of financial support, the Finance Team will write annually to them with a Financial Assessment Review Form to be completed, together with a request for information about any change in circumstances for the Special Guardian or the child. The case will remain open to the Council to deliver financial support. The plan would be a Child in Need plan with the only need identified being the Financial Need and the service provided to meet this need would be "Special Guardianship Order - financial support". The Plan is recorded by the Social Worker before their involvement is completed. The social worker is responsible for supporting the Finance team with information for the annual reviews where necessary. For the first annual review this will usually be the previous social worker. For any future reviews, the Connected Persons Team will assist. The reviews may be as simple as contacting professionals involved with the child to establish that the placement is still meeting their needs. However, if there is a substantial change of circumstances, e.g. a serious change in the behaviour of the child, it would normally be necessary to conduct a new assessment of needs.
The allowance is reviewed annually and this is to:
- Establish that the child or young person continues to meet the requirements for an allowance and determine if the child or young person's needs have changed;
- Complete a financial review;
- Determine that the allowance is still appropriate and consistent with legislation and departmental policy.
When a review is due, a Financial Assessment Review form will be generated by the Finance Team for completion by the carer. The team will review cases on an annual basis and will record any changes and outcomes onto the electronic record as a financial review. The carers will be required to complete an allowance review questionnaire. This will include providing evidence of their continued entitlements to child benefit, universal and/or other tax credits
In order for allowances to continue up to 18 years of age, Derby City Council will need to confirm that the young person:
- Continues to reside full time in the care of the Special Guardian and that the placement continues to meet the child's needs;
- Is not in receipt of any benefits other than specific grants to support training/education in their own right but in this respect, an exception can be considered if the young person's circumstances are exceptional;
- And in addition that the financial circumstances of the carers in receipt of the allowance remain unchanged.
If an overpayment has been made (for example because it is found that the child is no longer resident or for any other reason), the Local Authority will recover the overpayment.
The Special Guardianship Order Allowance will change as the child or young person moves in to the next age band as set out in fostering allowances or the child or young person's needs change.
Payment of the Special Guardianship Order Allowance will automatically end when:
- The child ceases to live with the Special Guardian (if he does so prior to attaining the age of 18);
- The child reaches 18 years of age (If a child remains in full time education post 18 the Local Authority will consider continuing allowances but any on- going allowance payments would continue to be means tested).
If any change in financial support is considered appropriate, the recommended change should be forwarded to the Head of Service for a decision. Where a change is approved, the Special Guardian should be notified in writing of the proposed change, together with the reasons for the change and the Special Guardian must be given the opportunity to make representations.
Where Special Guardians do not return the Assessment Review Forms within the required time scale, a reminder letter should be sent, giving 28 days notice of the suspension of payments if the information requested is not received.
The Special Guardianship Order allowance is only payable in respect of the child who is subject to a Special Guardianship Order and who is resident with the person named in the order.
Those in receipt of allowances are to agree that they will inform Derby City Council immediately of any of the significant changes set out below.
Where information has been given orally, the carers must confirm the information in writing within 7 days.
The special guardian must immediately notify Derby City Council of the following:
- The child ceases to have a home with the person who holds the Order;
- The child ceases full time education or training and commences employment;
- The child qualifies for welfare benefits in their own right;
- Change of address;
- The child dies;
- There is a change in financial circumstances or the financial needs or resources of the child and/or the carer which may affect the amount of financial support payable to the carer.
The Social Worker must notify the Finance Team if they are informed of a change of address for the family to ensure that payment is sent to the correct address. They must also notify the Finance Team if they are made aware that the arrangement has ended and the child is no longer living with the Guardian, so that payments can be stopped.
The Finance Team must inform the social worker or the Connected Persons Team if they receive information from the Guardian that raises concern about the child's welfare or if the Guardian fails to return the annual financial review form after the second reminder has been sent. Many of the children subject to a SGO are unable to live with their parents due to child protection concerns, it is therefore important that the appropriate service be informed if the child is no longer living with their Guardian.
15. Where the Special Guardian was Previously the Child's Foster Carer
Financial support does not ordinarily include the payment of remuneration to the Special Guardian for the care of the child. However, regulation 7 of the Special Guardianship Regulations 2005 as amended provides 'that where the Special Guardian previously fostered the child and they received an element of remuneration in the financial support paid to them, that the Local Authority may continue to pay that element of remuneration for 2 years from the date of the Special Guardianship Order or longer if the Local Authority considers it appropriate'.
If financial support is requested by a former foster carer, Derby City Council will determine the level of payment required (after deduction of income from universal or specific benefits) to initially maintain the fostering allowance at the rate received previously or otherwise agreed. This additional element of support is not means tested and will rise in line with the annual increase in fostering allowances.
At the end of the 2 year period and following review by the reception service, a decision will be made whether to continue enhanced payments reduce them or cease payments. Payment of any on-going additional allowance beyond 2 years would need to be justifiable and reviewed annually to ensure that it remains appropriate. Professional advice may be sought to ascertain whether or not the exceptional circumstances continue to exist and whether the specific needs require additional financial support.
If the applicant is a foster carer from an independent fostering agency, the above would still apply unless a separate agreement is reached via a formal contracting process.
Before any changes are made, the former foster carer must be given the opportunity to make representations.
16. Urgent Cases
Where a person has an urgent need of a service, the assessment process should not delay provision and arrangements can be made for support to be provided as a matter of urgency in appropriate cases. The local authority will need to review the provision as soon as possible after the support has been provided in accordance with the procedures set out above.
Appendix 1: Scheme for Special Guardians
|Scheme for Special Guardians|
Eligibility Criteria for Assessment
In considering whether to make SGO allowances the Local Authority will take into account the following criteria
Applicants must be resident in UK.
DfES means test is applied unless carer is in receipt of Income Support. This establishes whether carer is entitled to receive an allowance.
Proof of income and expenditure is required
Takes into account the financial resources of the carer(s) including any financial benefits arising from the placement of the child, his/ her reasonable outgoings and the needs of the child.
Parents of the child who are in paid employment will be expected to contribute to the care of the child and if they refuse, the carer would be expected to pursue payments through the CSA.
The allowance paid will not exceed the age related basic fostering allowance that would have been paid at the date of the placement of the child.
Child Tax Credit (or any equivalent benefit) and Child Benefit received from the DWP will be deducted from the basic allowance. Any maintenance payments for the child will be deducted from the basic fostering rate.For carers in receipt of IS or universal, CB will not be deducted.
Additional Payments e.g.
Consideration may be given to one off payments for equipment, furnishings, set up costs etc under S17 of the CA on the basis that approval will be required prior to any item being purchased.
Anything beyond that falling within the remit of the wording above, would need to be considered as a one-off discretionary payment, decided on a case by case basis and in any event only if it was considered as essential to enable the child to remain living with the carers and prevent that child from needing to be accommodated by the local authority.
Support for legal costs
The LA will consider making a contribution towards the legal costs of the carer when applying for a SGO if the child is a LAC or is subject to pending care proceedings, or the application for the order is a direct alternative to such an application and in each case, that the LA supports the application. DCC will expect the claimant to make an initial application to the Legal Aid Agency (LAA) for public funding and it is only if this is refused that DCC will consider providing financial support. Any funding would initially be limited to a maximum of 2 hours advice with such advice being charged at current approved LAA rates. Any request for a contribution towards the costs of legal representation within court proceedings, except in exceptional circumstances, will only be considered if the proceedings are contested by any respondents to the application.
Not means tested.
LA basic foster care rate.
Minus CB, CTC and any maintenance payments received for the child (except for IS / universal credit claimants where CB is not deducted.
Duration of Allowances
Payments of allowances will continue until the child ceases to have a home with the Special Guardian, the child starts full time employment, the child qualifies for Universal Credit in their own right, or the child attains the age of 18.If a child remains in full time education post 18 the LA will consider continuing allowances but any on- going allowance payments would continue to be means tested.
The carers will be expected to cooperate with the annual review by completing and supplying to the LA an annual statement of their current financial circumstances, proof of all income and expenditure, the financial needs and resources of the child and details of their address and confirmation that the child still lives at that address. Failure by the carer to provide the requisite information may lead to the financial support being suspended or terminated.
Claimants of IS/universal credit only need to provide proof that they are in receipt of these benefits and proof of the amount they receive in the form of CTC or its equivalent.
Backdated Claims for Allowances
Usually, requests for back dating of allowances will only be made to the date of the application for assessment for financial support. Requests to back date allowances prior to applications will only be considered in exceptional circumstances e.g.
if the carer can demonstrate that they have suffered significant financial hardship.
Carers will always be expected to provide proof of their historical income and out goings.
Appendix 2: Rapid Evidence Review on Special Guardianship (CoramBAAF)
The Nuffield Family Justice Observatory has just released the Rapid Evidence Review on Special Guardianship completed by John Simmonds and Judith Harwin. The following link will take you to the Report.