4.2.2 Financial Support Guidance: Residence and Special Guardianship Orders
This chapter is under review
Note: from April 2014, Residence Orders and Contact Orders were replaced by Child Arrangements Orders. Prior to April 2014, a Residence Order was a Court Order made under section 8 of the Children Act 1989, settling the arrangements as to the person with whom a child was to live.
SCOPE OF THIS CHAPTER
This Guidance has been revised to reflect that all financial support plans for Special Guardianship or Residence Order Allowances must be approved by the Head of Service (Vulnerable Children and Young People) prior to Special Guardianship/Residence Orders being made by the court.
RELEVANT CHAPTERSStandardised Means Test Model for Adoption and Special Guardianship and Residence Order Financial Support
Guidance on Residence Order Allowances Agreed Before April 2004 and Still in Place (Under Review)
This chapter includes an update in May 2012 with regard to approval of allowances.
- Financial Responsibility
- Circumstances in which Financial Support may be Payable
- Eligibility Criteria for Special Guardianship or Residence Order Allowances
- Assessment of Need for Financial Support
- Foster Carers
- Cessation of Allowances
- Eligibility for Leaving Care Services
- Responsible Authority
The Financial Support Guidance in relation to Residence Orders and Special Guardianship Orders was updated and approved by Cabinet in March 2009. The original "Policy on Financial Support in respect of Residence Orders and Special Guardianship Orders" was approved by Cabinet Member in February 2006. It was further updated in July 2010 to clarify the current Departmental position and ensure that the policy is applied in an equitable, consistent and fair manner. It applies to arrangements put in place from April 2004 - for arrangements made prior to that date please refer to "Guidance on Residence Order Allowances Agreed before April 2004 and Still in Place".
This guidance reflects current legislative requirements and current council policy that adequate support, including where necessary, and subject to assessment, financial support, is provided to those who are granted Residence Orders or Special Guardianship Orders. It applies in respect of children who:
- Were previously Looked After;
- Would, in the opinion of the team manager, have become looked after if such orders had not been granted.
This Guidance should be read in conjunction with:
- The Special Guardianship Guidance and Regulations 2005 (DfES).
The local authority is committed to ensuring that its looked after children have a stable family life which is legally secured with, where possible, at least one person with parental responsibility.
The local authority does not wish carers' need for financial support to prevent any child from benefiting from a permanent placement which is legally secure.
Where children, for whatever reason, are unable to live with their parents the local authority will support them remaining with friends and family if this is assessed to be in their best interests. The use of Residence Orders and Special Guardianship Orders in public and private law proceedings as an alternative to children and young people becoming, or remaining, looked after is encouraged.
The Special Guardianship Regulations 2005 specify that one of the types of support that may be offered to special guardians is financial support. This may be payable:
- To facilitate arrangements for a person to become the special guardian of a child where the local authority consider such arrangements to be beneficial to the child's welfare; or
- To support the continuation of such arrangements after a special guardianship order has been made.
It is possible for someone holding a Residence Order to receive support services through the general framework of support for children in need, or in certain circumstances through a Residence Order allowance which is at the discretion of the local authority. Schedule I (15.1) of the Children Act 1989 states "Where a child lives or is to live with a person as a result of a Residence Order, a local authority may make contributions to that person towards the cost of the accommodation and maintenance of the child".
This does not apply where the person with whom the child lives, or is to live, is a parent of the child or the husband or wife of a parent of the child.
Any financial support to holders of Residence Orders or Special Guardianship Orders is subject to financial assessment. Residence or Special Guardianship Order allowances can only be authorised by the Head of Service (Vulnerable Children and Young People) and must be authorised prior to the making of an order.
Whilst local authorities have a legal power to provide financial support to individual families they have no legal duty to do so. The amount of any financial assistance is also discretionary; each local authority may offer financial assistance at a different rate and can change schemes and alter them in response to new legislation and/or council policy.
The local authority will exercise its discretion to pay any Residence or Special Guardianship Order allowance by reference to specific eligibility criteria. The criteria and the level of allowance will be subject to periodic review and may be varied taking into account the level of demand and the financial resources available to the authority.
Carers who are granted an interim Residence Order will not be eligible for a Residence Order allowance, but may be offered financial assistance under Section 17 of the Children Act 1989, if this is assessed as being required to meet the child's needs.Where the criteria are met for financial support in relation to Residence Order allowances this will be subject to the agreed financial assessment process. Payment of any allowance agreed will only come into force following the making of a full Residence Order. There will be no backdating of any monies.
Neither the payment of an allowance, nor the amount paid, can be enforced as a legal contract and an original level of allowance agreed should not be relied upon by carers when making long term financial plans.
At all times local authorities must act reasonably in making their decisions and Residence Order holders or Special Guardians can use the complaints procedures and the Ombudsman, or legal action, as appropriate to challenge decisions about financial support they regard as unfair or unreasonable.
Any overpayment of allowances made by the local authority is recoverable.
The primary responsibility for the financial support of children rests with their parents. A parent's ability to contribute to the maintenance of their child who is subject to a Residence Order or Special Guardianship Order should be determined by the carers applying for a maintenance assessment under Section 4 of the Child Support Act 1991, unless there is good reason not to do so. A court may also, on the application of a person with a Residence or Special Guardianship Order, order a parent to make financial contributions towards the maintenance of their child.The Department of Work and Pensions has the primary duty to provide a level of income maintenance in circumstances where parents are unable to provide an adequate level of financial support to a child who is subject of a Residence or Special Guardianship Order. Where the local authority is considering undertaking a financial assessment regarding ongoing payments (allowances) in respect of Residence/Special Guardianship Orders, an appointment with a Welfare Rights adviser must be arranged by the social worker for the carer to ensure they are claiming all relevant and appropriate benefits and/or tax credits available to them.
Financial support will only be provided to those who are granted Residence and Special Guardianship Orders in respect of children who were previously looked after or who would, in the opinion of the team manager, otherwise have become looked after if such orders had not been granted and where the local authority assesses the placement of the child with the person(s) applying for the order as in the child's best interests.
Circumstances where financial support may be payable:
- Where it is necessary to ensure that the carers can look after the child where this would not be practicable without financial support and where this is not available from another source;
- Where the child needs special care which requires greater expenditure of resources by reason of illness, disability, emotional or behavioural difficulties or the consequences of past abuse or neglect;
- Where the local authority consider that it is appropriate to contribute to any legal costs including court fees associated with the making of a Special Guardianship or Residence Order;
- Where such support is to meet recurring costs in respect of travel for the purpose of visits between the child and a related person;
- Where the local authority considers it appropriate to contribute to the expenditure necessary for the purposes of accommodating and maintaining the child, including the provision of furniture and domestic equipment, alterations to and adaptations of the home, provision of transport, clothing, toys and other items necessary for the purposes of looking after the child.
N.B. Where assistance would normally be provided by another agency (e.g. adaptations to the home for a disabled child) these should be applied for separately by the carers to the appropriate agency.
Having regard to Section 4, Circumstances in which Financial Support may be Payable, the following criteria apply to the payment of Residence Order/Special Guardianship allowances:
- There must be evidence of a full Residence Order or Special Guardianship Order;
- The child must be assessed as "in need";
- The birth parents of the child or any other person with Parental Responsibility must be ordinarily resident in Sefton;
- The care provided to the child must be continuing and appropriate;
- A financial assessment of the carers/proposed carers, the birth parents and the child (if in receipt of state benefit or earned income) must be undertaken and a need identified. Any financial support will be calculated using the revised Sefton Council Standardised Means Testing Model for Adoption, Special Guardianship and Residence Order Financial Support (August 2010);
- A robust Child in Need Plan, signed by all parties, must be in place that details the support services being provided, including the level of financial support. (Child in Need procedures do not require an allocated social worker if the only service provided is Residence/Special Guardianship Allowance);
- The Child in Need Plan and the level of financial support must be reviewed and reassessed at least annually;
- The carers should have applied for a maintenance assessment of the parents under Section 4 of the Child Support Act 1991, or have entered into a maintenance agreement with the parents under Section 9, or have had good reason not to do so. If the carers gain an award from the CSA this will be taken into account in their financial assessment. If there is no such award, the Council will, itself, take into consideration the ability of the child's parents, or any other person who has parental responsibility, to contribute financially to the child's upbringing.
If a request from a prospective special guardian, or special guardian, for support services (including financial support) is made in relation to a child who is looked after, or was looked after immediately prior to a Special Guardianship Order being made, an assessment of support needs must be made (Regulation 11, Special Guardianship Regulations 2005). There is no similar regulation in relation to Residence Orders but for the sake of equity this should also apply.
Decisions on whether to undertake an assessment in other circumstances and, in all cases, based on the means test, whether to offer financial support, will be taken on a case-by-case basis. Families must never be given assurances of financial support.
They must be given a copy of the Guidance on Financial Support: Residence and Special Guardianship Orders (July 2010) and the Complaints Leaflet and should sign to confirm they have received these before an assessment is started. In all cases a Financial Assessment form (Fin 1) must be completed and evidence must be provided of income and outgoings.
If a decision is made not to undertake an assessment the reasons for this must be communicated in writing and 28 days must be given for the person to make representations.
The revised Standardised Means Test Form (August 2010) will be used to determine levels of financial support except where the child was looked after and living with a local authority foster carer immediately prior to the Residence or Special Guardianship Order being made (see below Section 7, Foster Carers).
Prior to any assessment for financial support carers must be referred for welfare benefits advice to ensure that they are aware, and take advantage of, any benefits and tax credits available to them. The local authority cannot duplicate any financial support that may be available via the state benefits system.
Where financial assistance is agreed carers will be notified in writing of the level of this, and the legal context within which the support is being provided. The notice must include:
- How the amount of financial support was determined;
- The amount of financial support;
- The frequency (if an ongoing payment) with which the payment will be made;
- The period for which payment will be made;
- When payment will commence;
- Any conditions attached to the payment;
- The arrangements and procedure for review, variation or termination;
- The responsibilities of the local authority and the carer.
Where the carer is in receipt of benefits it is their responsibility to notify the Department of Work and Pensions of any financial support being provided by the local authority.
Where a child is looked after the decision to support an application for a Residence Order or Special Guardianship Order by their foster carer (kinship or mainstream) should be taken at a LAC review and be endorsed as part of the child's permanence plan.
The local authority must disregard any means of the foster carer when they are considering providing financial support in respect of legal costs where a Residence or Special Guardianship Order is applied for in respect of a looked after child and the authority supports the making of the order. (Local authorities are not expected to meet legal costs where they oppose an application).
Where a foster carer applies for a Residence or Special Guardianship Order in relation to a child they are currently fostering and the local authority supports the application the local authority, if the Order is granted, will continue to pay the basic local authority fostering allowance minus child benefit from the date of the order being granted. The allowance will be uplifted annually in line with the age of the child and any increase in the authority's basic fostering allowances.
The payment of this allowance will be on the basis of automatic entitlement and will not be means tested or reviewed. For legal reasons a financial assessment and re-assessment form will need to be completed, though this will not impact on the amount of allowance paid.
Where a local authority foster carer has also received an element of remuneration (fee) in addition to the fostering allowance this will be paid for 2 years from the date of the order being granted.
The local authority does not expect payments to be made above its own fostering allowance rate. Any request for a higher payment (e.g. if a child is placed with an Independent Fostering Agency) must be referred to the Head of Service (Vulnerable Children and Young People).
Payment of a Residence or Special Guardianship Order allowance ceases when:
- The child leaves home or dies;
- The child's birth parent moves in to live with the child;
- The child ceases full time education or training and commences employment;
- The child qualifies for Income Support or Job Seekers allowance (or future equivalent) in their own right;
- The child reaches the age of 18 - unless she/he continues in full time education or training when it may continue (subject to an assessment of circumstances) until the end of the course or training she/he is at that time undertaking;
- The carer fails to comply with any conditions imposed (see Section 9, Conditions) or fails to complete an annual financial statement;
- The financial assessment indicates that financial support is no longer necessary.
Special Guardianship/Residence Order allowances are not payable until the full Order has been granted and the carer has agreed to the following conditions:
- That they will inform the local authority immediately (and follow up in writing where information is given verbally):
- Of any change of address;
- If the child dies;
- Of any of the changes in outlined in Section 8, Cessation of Allowances;
- If there is a change in financial circumstances or the financial needs or resources of the child which may affect the amount of financial support payable;
- That they will complete and supply the local authority with an annual statement and documentary evidence in relation to;
- Their financial circumstances;
- The financial needs and resources of the child;
- Their address and whether the child still has a home with them.
The local authority may set any other conditions it considers appropriate including the timescale within which, and the purposes for which any payment of financial support should be utilised. Where any condition imposed is not complied with, the local authority may suspend or terminate or seek to recover all or part of the financial support they have paid.
Where there is a failure by the carer to provide an annual statement the local authority cannot suspend or terminate payments or seek to recover financial support until they have sent a written reminder of the need to provide an annual statement together with the required documentary evidence, and 28 days have expired since the date on which the notice was sent.
Children who were looked after by a local authority immediately before the making of a Special Guardianship Order may qualify for advice and assistance under the Children Act 1989, as amended by the Children (Leaving Care) Act 2000 and the Adoption & Children Act 2002 (Schedule 3). In the context of special guardianship, to qualify for advice and assistance, section 24 (2) of the Children Act 1989 defines a "person qualifying for advice and assistance" and provides that the child:
- Must have reached the age of 16 but be under 21;
- If less than 18 have a Special Guardianship Order in force;
- If over 18 have had a Special Guardianship Order in force when they reached that age;
- Have been looked after by the local authority immediately before the making of the SGO.
The relevant local authority should make arrangements for children who meet these criteria to receive advice and assistance in the same way as for any other child who qualifies under the Act. Regulation 22 of the Special Guardianship Regulations 2005 provides that the relevant local authority is the one that last looked after the child.
The advice and assistance referred to in the Act should be commensurate with that offered to any "qualifying child" following an assessment of their needs.
Financial assistance should only be offered in "exceptional circumstances" to contribute to the expenses incurred by the young person living in or near the place they are or will be seeking employment, education or training.
Young people subject to Residence Orders do not qualify for advice and assistance under the Children (Leaving Care) Act 2000 as they will not meet the requirement that "any time after the age of sixteen but whilst still a child, was, but is no longer looked after…" (Residence Orders are not made after the age of sixteen unless there are "exceptional" circumstances - Children Act 1989 Section 9(7)).
When the child was previously looked after the assessment and provision of special guardianship support services remains the responsibility of the local authority where the child was last looked after for three years from the date of the order. This applies wherever the family live during this period.
When the three year period from the making of the Special Guardianship Order has expired, the local authority where the special guardian lives is responsible for assessing and providing support services.
Where the child was not previously looked after the local authority where the special guardian lives is always responsible for assessment and support. If the special guardian and his family move, then the responsibility passes to the new local authority. The local authority where the special guardian previously lived should cooperate as needed to ensure a smooth transition for the child.
Where a Special Guardianship or Residence Order allowance has been agreed the payment and annual review of this will remain the responsibility of the local authority that originally agreed it for as long as the family in question qualifies for payments. However, if the need for the payment of allowance arises after the carer has moved out of the borough then the responsibility for assessing and meeting those needs will rest with the authority in whose area the child resides.