The Ombudsman's final decision:
Summary: The Council failed to follow its policy regarding expense allowances when it decided Miss B’s claims for adoption allowance. I recommended the Council recalculated its expense allowances and recalculated Miss B’s claims, paying her any allowance she was entitled to receive.
- Miss B complains the Council failed to follow its policy which requires it to periodically update the outgoings allowances it uses to calculate if an adoption allowance is payable. She complains the Council’s decisions about when to pay adoption allowances have been flawed as a result.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
How I considered this complaint
- I spoke to Miss B and considered the information she provided. I made enquiries of the Council and considered its response to the complaint. I sent my draft conclusions to the complainant and to the Council to enable both parties an opportunity to comment before I reached a final decision.
What I found
- Miss B’s disabled daughter was placed with her in 2011. In April 2012 an adoption order was made.
- Miss B received adoption allowance while she was on adoption leave. However, adoption allowance is means tested. So, when Miss B returned to full time work in January 2013 her income meant she was no longer entitled to receive it.
- After Miss B had reduced her working hours in July 2013 she re-applied for an adoption allowance. She applied again in December 2014. On both occasions the Council declined her application on the basis of its means testing assessment.
How the Council assesses eligibility for adoption allowance
- The Council’s policy sets out how the Council assesses applications. The policy was written in 2003.
- There are two criteria. The first is child related criteria and the second is means testing; assessing a family’s income and outgoings. There is no dispute that Miss B’s application meets the child related criteria.
- The means test considers a family’s income and outgoings and compares this to foster allowance rates. If the money left over, after deducting outgoings from income is less than the relevant foster allowance, the adoption allowance payable is the difference needed to bring the left over income up to the level of the foster allowance. If left over income exceeds the foster allowance, nothing is payable.
- The Council calculates this as follows;
Income – *Total Expenditure = x
The appropriate foster care allowance is y.
y – x = the amount of adoption allowance payable.
*Total Expenditure is key monthly outgoings (mortgage rent, council tax etc), plus a set allowance for food, clothing, car/travel, leisure and holidays. The amounts for outgoings allowances are set out out in the policy document. The Council’s policy states they should be “adjusted periodically in line with inflation by the County Manager for Fostering and Adoption”.
- The policy document contains a table showing which fostering allowance is relevant. The policy states these rates need to be updated annually.
- In terms of income, the policy notes that adopters are able to claim child benefit. It states that the amount of allowance should be reduced by the amount of child benefit for all adopters, except those receiving income support.
- Miss B complained to the Council in 2015 that its decisions on her adoption allowance application were flawed. In or around April 2015 the Council provided her with a copy of its policy on adoption allowances. Miss B noted the amounts being used for expenditure now were the same as when the original policy document was written in 2003 and they had not been updated. There is evidence the fostering allowances had been increased.
- The Council confirmed there had been no change to the expenditure allowances it used since the policy was produced in 2003.
- The Council told me it had not been taking account of child benefit payments as income, when carrying out financial assessments for adoption allowances. So, it argued that
- There is fault in the way the Council dealt with Miss B’s applications for an adoption allowance.
- The Council’s policy required it to update the expenditure allowances ‘periodically’. The Council has not made changes to the allowances since the introduction of the policy in 2003. This was fault.
- The Council’s policy does not define ‘periodic’ however, it would be reasonable to expect the Council to adjust the allowances every two years to comply with its policy. By not updating the allowances for expenditure as the policy required, the Council made it less likely that applicants would qualify for an allowance.
- The Council argued it had not been taking child benefit into account as income when it determined Miss B’s claim. It stated it should have taken this into account. The Council estimated the effect of any increase in allowances to take account of inflation would be balanced out by taking account of child benefit.
- While I note the Council’s comments, I note that in response to Miss B’s complaint the Council stated it had made a decision not to consider child benefit as income, despite the regulations enabling it to do so. The Council noted its decision meant adopters with significant benefits could still receive an allowance. I note the Council is reviewing its policy. However, as the Council’s position was not to include child benefit as income when Miss B made her claims I would expect the Council to consider Miss B’s claim on this basis.
- The Council agreed to recalculate the outgoings allowances set out in its 2003 policy. This is to determine what the allowances would have been, had the Council reviewed the allowances to take account of inflation bi-annually between 2003 and 2013. The Council should then recalculate the claims Miss B made in 2013 and 2015 using the revised allowances. It should set out clearly how it re-calculates Miss B’s claims and pay her any allowance that she is entitled to from the re‑assessment.
- The Council should also pay Miss B £150 to recognise the time and trouble she has been put to in bringing her complaint.
- There is fault that led to injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman