SGO Urgent Advice needed Final Hearing Tomorrow

[upset uncle]

Hi All, my first post but lots of research over the last year and help from this site and forum.

My wife and I have been caring for our great niece for just over a year with an interim care order in place. We have been assessed and are registered foster carers with full fostering allowance being paid. My wife took unpaid leave of absence whilst looking after our niece and is likely to have to give up her job to continue. We started this process with the full intention of pushing rehab / reintegration for our niece back to her parents but this is now very unlikley.

The LA (at the judges request) gave ourselves a measly £200 towards initial legal advice for an SGO but won't pay for any more legal support for ourselves.

The LA want us to take an SGO and both the Guardian and LA are recommending this. I have pushed for a financial assessment which has been completed albeit last minute rushed for court papers timescales and the equivalent of the full fostering allowance has been awarded but to be reviewed annually.

I have a relatively well paid job and will not get child tax credits and may in the future lose child benefit too.

In order for our niece to stay with us we are having to build an extension to our property (3 bed, 3 children of school leaving age / university already) and we are willing to remortgage to do so but are concerned of potential future financial problems. Obviously taking on mortgage for another 20 years or so is worrying in itself. I will be in my sixties when it would be finished.

I am aware that the SGO allowance should be based on the forstering allowance however I am concerned that after the first year the LA may reduce or remove the allowance altogether.

I am going to try to push for the LA to agree to pay the allowance until my niece is 18 however I even if they do agree to this I am concerned they could still remove or reduce it later and what options would I then have.

On a another point the LA have previously said they would pay for childcare for 3 days per week up unitl nusery age to allow my wife to go back to work part time. They have not put this in writing and when we recently questioned it they have gone away to check but still haven't replied.

This is not about the money as everyone says but we want to provide the right support for our own children and our niece (we do love our niece and class her the same as our own children ow) as well as our niece but feel the LA could let us down badly in the future which could compromise our whole family. Our own children may be older but we as all parents ant and will need to support them in further life both financially and otherwise. Even the government state we have to support them financially towards university costs yet the means test from the LA only covers children upto the age of 18. My eldest is 25 and althought at university will be moving home this summer.

Your help and advice would be much appreciated and apologies ofr the short notice.

[upset uncle]

Thanks Irene,

One of the queries I have but haven't been able to find an aswer for is whether an SGO allowance once removed as in your case could be argued in court as per other legal precedents that the SGO allowance should be based on the fostering allowance. If an LA complete a financial review and remove the allowance totally as opposed to giving a lower amount then can it be argued that it is not needed at all and therefore the fostering allowance guide is removed. My thought is that it is the same principle irrespective but my thoughts mean nothing.

If all of my children were up and away and we didn't have to build the enxtension I wouldn't be as concerned as I am (I still would be but not as much) but with this added burden I don't know what the future holds and all of our finances have previously been based on keeping our outgoings as low as possible to help support our childrens future. This will obviously change that massively and remove that possibility.

Darren

[David Roth]

Hi upset uncle, and welcome to the discussion forum.

There are two separate pieces of law relating to the level of special guardianship allowance payable. One is in the Special Guardianship regulations 2005, and the other is in case law.

Regulation 7 of the SGO regs deals with remuneration for former foster carers. It states that when the special guardian used to be a foster carer, and their fostering allowance included an element of remuneration, then the local authority has the power to continue to pay that remuneration for up to two years after the order is made, although in exceptional circumstances it can continue beyond two years. This has to be decided before the SGO is made. I would take remuneration to refer to, for example, an enhanced allowance to cover the extra costs if the child is disabled or has to follow a special diet. Under reg 16, local authorities are also supposed to put in place arrangements to review their SGO payments.

The case law, which you may have heard referred to as the Lewisham judgment, was a judicial review decision which specifies that the starting point for calculating the amount of any SGO allowance should be the amount the special guardian would receive if they were fostering the child for the local authority. Lewisham had taken their adoption allowance, which was a smaller figure, as their starting point. The judgment relies on para 65 of the SGO guidance, which states: "In determining the amount of any ongoing financial support, the local authority should have regard to the amount of fostering allowance which would have been payable if the child were fostered. The local authority’s core allowance plus any enhancement that would be payable in respect of the particular child, will make up the maximum payment the local authority could consider paying the family. Any means test carried out as appropriate to the circumstances would use this maximum payment as a basis."

You should note that this para states that the fostering allowance amount would be the maximum amount to be paid, and it would be subject to a means test.

With regard to the payment for childcare that you mention, if you cannot get this in writing before the court hearing, I would suggest trying to get the judge to confirm it in his judgment, so that a commitment to provide it is on record. In fact, all the support that the local authority is going to provide should be agreed before the order is made, as the local authority is highly unlikely to agree to provide additional assistance after the order is made.

The one upside to the regular reviews of the allowance is that, if your family does lose some of its income, then the SGO allowance may go up to compensate: probably not as much as any lost earnings, but it would be something.

Finally, I would just like to say congratulations on taking this on. It has clearly involved considerable financial as well as personal commitment from all of you, but it is obviously of immense benefit to your niece.

If you are interested in reading the legal references I have made, you can follow these links:
SGO guidance and regulations: http://media.education.gov.uk/assets/fi ... idance.pdf
The Lewisham judgment: http://www.familylawweek.co.uk/site.aspx?i=ed1173

Good luck tomorrow!

[upset uncle]

Thanks David, I have already some of the information and you were right it was the Lewisham case which I had referred to although until last night I hadn't read the whole judgement and it was interesting to do so. I have also previously printed off the guidance doc and read through it too but again thanks for that and your help.

To clarify, our niece came to us last June whereby we looked after her whilst being assessed as relative foster carers. Delays with Panel meant we weren't approved until Nov but had argued and been getting support prior and it was back dated to the start in June (your help and others in this forum was crucial although I bypassed the SW and the fostering and adoption service intervened and argued my points too. However we have never been given any remuneration or additional payments which would come under section 7 (I think I'm reading that correctly) and therefore the 2 years isn't an issue.

Am I correct in my thoughts that the SGO Allowance (albeit means tested) should be paid until 18 unless the means test shows no need or requirement for the needs of the child. If it is paid then the starting point should be the same as the fostering allowance.

I am concerned that many people appear to have only been given the allowance until age 2 or school age. I have also heard that our LA (South Tyneside) only pay the allowance until these ages as well albeit unconfirmed and hence my worry.

I note under section 7 it makes reference to the 2 years as a timescale to allow families to adjust to the different level finances. This I believe wont have any bearing whatsoever and I understand that although the overall circumstances have a huge impact on all of my family.Obviously in our case this is already very significant with my wife not being paid anymore (in reality giving up her job) and we will see a massive change when the extension gets built as this will have a huge increase in our mortgage payments.

I have also checked our letter stating what the financial assessment summary was and I was mistaken it does not mention any annual review (although we were told that) but it does mention a 3 month review to determine deduction of child tax credits from the above total.

From readin the DFES guideance on the financial assessment this appears normal however in our case I am concerned that the financial assessment may not have been completed correctly / thoroughly as we handed in our figures (I included everything) at 4pm and the assessment was done by 8:30 the following morning. The SW had forgotten to get this completed and needed all court papers in for the IRH so it was extremely rushed to comply with the deadline.

Is the 3 month review purely to see what if any child tax credits are awarded or is it another full assessment which they could question the figures.

Ohh just to make matters more unnerving the final hearing has been changed (late yesterday) from 10:30 this morning to 2 pm and at a different court / town and I only found out from my niece.

Many thanks in anticipation.

[David Roth]

Hi upset uncle

It is hard to give a definitive answer about your entitlement to the SGO allowance, as local authorities are allowed a lot of discretion. They are required by s14F of the 1989 Children Act to provide special guardianship support services, which includes financial support. However, although they are required to provide this support, it is a general duty, and does not mean that individual special guardians have a right to receive it. Case law like the Lewisham judgment do help you to make your case though.

I would suggest that you look for an undertaking in court that the SGO allowance will not be withdrawn. They may not be able to guarantee that they will continue to pay a particular amount, as your circumstances may change, but you could ask that they agree to continue to calculate it in the same way as they will do initially.

It really is important to negotiate them into making a commitment at this stage, as it is highly unlikely that at a later date they will provide more than they have committed to now. If you have a lawyer negotiating on your behalf, make sure they are aware of all the fine points, as it is quite a specialist area, and even family law solicitors are not always aware of the intricacies.

Being the final hearing, today is the really crucial day for getting this sorted out, and you should try to make sure that whatever is agreed is recorded in the judgment. Good luck with it.

[upset uncle]

Thanks again David, your advice is really much appreciated.

Unfortunately we cannot afford a lawyer so I will be trying to negotiate with hopefully the help of the Guardian and her solicitor / barrister.

I'll let you know how things turn out but thanks again.

Darren

[firedrum]

Hi Upset Uncle,

I don't know if I can help, but I thought I would tell you how we managed a similar situation in case I can be of help.

Our niece came to live with us last year as an emergency placement, and we made the social worker at the time very aware that we would need financial support in order to look after her. We wanted help with nursery fees as neither of us are in a financial position to give up our jobs, and help with mortgage payments, as our lodger (who was paying half our monthly mortage and sharing the bills) had to move out (only lived in a small 2 bedroom flat). And we asked for this for 1 year, so we had time to adjust and pay for prior committments. We also wanted our court AND solicitor's fees paid for for the SGO.
The social worker at the time had said help with mortgage payments would be 'not a problem', on top of a fostering allowance. So niece came to live with us immediately and we waited for the money to come. The fostering allowance was set up, and then we were told due to limited resources, there would be no additional money!
I sent a very formal email to the head of the local authority, copying in the social worker, explaining that it was unacceptable for them to place a child with false (verbal) promises of financial support and then say no. And I asked them how it was going to affect my niece if they didn't support us, e.g. we would get into debt, it would out a strain on out relationship, an unhappy home etc. I also pointed out that since coming to live with us, our niece as settled in so well and, whilst it is unacceptable to leave us without the financial support we need, it is also unacceptable to move her from us - therefore the only solution is to find the money and support us for the limited time we asked for the support.

I didn't get a reply immediately, so I left it a couple of days and then phoned, everyday, and politely asked to speak to the Head. They eventually took my calls, and agreed to pay for the nursery and the court and solicitors fees for the SGO.

I don't know if this is helpful, I just wanted to say that social services must be flexible for the well being of the children they place, so don't give up trying to get help with extensions for your house etc! Good luck!

[firedrum]

Also, if you have been approved foster carers, it is in their best interest to help you get the SGO (e.g. paying for solicitors, court fees etc), because otherwise they will have to spend a great deal more on you by giving you a fostering allowance indefinitely!