LGO Liverpool Report and ESA

[Chippy]

Hello there, I have a query which I cannot find having been asked or answered on this forum.

My partner and I are in receipt of an allowance from a local authority to assist in our care of a family member under a SGO. The allowance is the same amount as the LA's fostering allowance minus Child Benefit.

I receive Employment Support Allowance. Following the Local Government Ombudsman's report on Liverpool City Council's withholding of Child Benefit from those in receipt of Income Support, am I to assume that the reference to Income Support in the ruling would also apply to those in receipt of ESA?

I have a second question. The local authority concerned has published the amount of its Fostering Allowance for April 2014/2015 however we are still receiving an allowance based on the April 2013/2014 figures. Would it be considered reasonable for us to ask that we be awarded our allowance at the new rates?

[David Roth]

Hi Chippy, and welcome to the Family Rights Group discussion forum for family and friends carers.

With regard to your first query, I would suggest that you could make a case using the Ombudsman's IS ruling, based on the similarities of circumstances between ESA and IS claims. However, I can't say that you will definitely win, only that there is a case to be made. The local authority may claim that the Ombudsman's findings only set a precedent for IS claimants, and it is only IS that is mentioned in the government's guidelines for calculating SGO allowances. You could say in return that ESA was only introduced in October 2008, while the government's guidelines were issued in 2005. You could suggest that if ESA was in existence at the time, perhaps it would have been mentioned as well. But if the local authority rejects a complaint that is based on this point, it might need to go back to the Ombudsman again for clarification.

With regard to your second point, it certainly would be reasonable to ask to be paid the fostering allowance for the current financial year, particularly if other non-kinship foster carers are receiving the new amount. Local authorities are supposed to not discriminate against family and friends carers in the amount of fostering allowance they pay. You could also ask for the upgraded payments to be backdated to the date that all other foster carers got the increase.

[Chippy]

Thank you for your welcome and your reply David.

With regards to this part of your reply:

But if the local authority rejects a complaint that is based on this point, it might need to go back to the Ombudsman again for clarification.

Do you mean that the LA should seek clarification or that we should seek clarification from the LGO?

[Robin D]

I can't see any local authority self referring. They want to avoid spending money, not ask if they should be?

As David suggest, complain to the LA quoting the Liverpool case. You will have to go through all three stages of the LA complaints procedure before you can refer it to the LGO. It's a bit of a chore, but do not give up at any of the first three hurdles if you get rejected. The LGO will not generally hear a complaint until you have exhausted the LA's own procedures (or they have failed to respond in time).

From personal experience, one complaint we put in was not responded to in the time in their own procedures, so at that point I wrote asking for it to be dealt with at level 2 and copied the LGO to make them aware. They wrote back saying they would hold on file pending the LA response and copied the LA. It may be completely unrelated but we won that complaint at stage 2.

[Chippy]

Thank you Robin.

I think our first step will be to ring the LGO advice line tomorrow just to get clarification as to whether the LGO's reference to "Income Support" was her shorthand for "In receipt of benefit".

[Chippy]

I rang the LGO advice line this morning and their response was unhelpful. I asked them for a clarification and they were unable to give me one. Initially they directed me to the DWP as "We do not concern ourselves with benefit inquiries".

Their advice was that we should start the complaints procedure and that the LGO would then rule on the basis of this complaint. We have tried to keep channels open with the LA but they are, unfortunately, a shambolic department. We will now end up antagonising them, which we wanted to avoid and will only succeed in making our placement even more fraught with difficulty.

If the LGO, Jane Martin, had been better advised by their legal department as to her choice of wording in the Liverpool report then this complaint would have been unnecessary. We will now follow the complaints procedure, thereby wasting the time and money of both the Childrens' Services department and the LGO.

[David Roth]

I'm not sure how familiar you are with the complaints proceedures, but you may find it useful to refer to our advice sheet 25 as you go through the process.

Good luck!

[Chippy]

Thank you David. Our relationship with the LA has been fraught with difficulties and "misunderstandings" and we are endeavouring to tidy up all the loose ends of the case so as to be able to concentrate all our energy on providing a secure and loving home for the child placed in our care.

I'll let you know how we get on.