The Ombudsman's final decision:
Summary: The Council delayed in paying Ms X an adoption allowance but did not misrepresent the amount she would get. The Council has provided a suitable remedy for the delay.
- The complainant, referred to here as Ms X, complained that the Council:
- misled her about the amount of adoption allowance she would be entitled to;
- delayed in paying her the allowance; and
- failed to deal properly with her complaint about this matter.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
- If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))
How I considered this complaint
- I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy. I shared my draft decision with the Council and the complainant and considered their responses.
What I found
- The Adoption Support Services Regulations 2005 and the ‘Statutory Guidance on Adoption’ set out the circumstances in which councils must pay financial support to people who adopt and where they have discretion to do so. They also explain how councils should assess the amount of support to provide.
- Key principles include:
- Financial support cannot include “the payment of remuneration to the adoptive parent for care of the adoptive child” (expect where the adoptive parent previously fostered the child).
- Generally, assessing financial support will involve a means test.
- The local authority should consider making a payment of financial support equivalent to the Maternity Allowance to adoptive parents who cannot receive Statutory Adoption Pay because of low earnings, length of service or self-employment, but otherwise satisfy the criteria for Maternity Allowance. (Maternity Allowance is currently £139.58 per week).
- In deciding how much financial support to pay, the local authority should take account of the amount of fostering allowance that it would have to pay if the child were to be fostered instead.
- The fostering allowance forms the basis of the maximum payment made to an adopter. The purpose of applying the means test is to establish what proportion of the maximum should be paid in the particular case.
- Financial support must “complement and not duplicate financial support available through the benefits and tax credits system”. Therefore it is important that adoptive parents apply for all benefits they are eligible for.
(Statutory Guidance on Adoption paragraphs 9.26 – 9.33)
- The Council’s policy on adoption allowances sets maximum allowances depending on the age and any special circumstances of the adopted child. The allowances are based on its fostering allowance rates. For children aged 0-4 years the basic allowance is £163.91 per week. The Council bases its financial assessments on the ‘Standardised Means Test Model for Adoption and Special Guardianship Financial Support’ recommended by the Government.
- Under this model the Council assesses the adopter’s income and outgoings, then takes account of a standard personal allowance rate to arrive at a figure for disposable income. If this figure is less than £0 it will pay adoption allowance at the maximum rate set for the age and circumstances of the child. Where the disposable income is higher than £0, the allowance will be a percentage of the maximum payment.
- The Council expects adopters to claim Child Benefit which is then deducted from the allowance. The Council reviews allowances every year.
- The Council’s website has a section with information for prospective adopters. This provides a link to external adoption information websites, and opportunities to find out about the next adoption information meeting and to send an email query to the Adoption Team. It also contains a link to the Council’s adoption brochure. In the section on financial support available for adopters this says:
“In certain circumstances, following a means test assessment of income, a discretionary adoption allowance may be payable to support families who need financial assistance. This is reviewed annually and in exceptional circumstances, allowances might be payable until the adopted child leaves school.”
- The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. There is guidance for local authorities, ‘Getting the Best from Complaints’, on operating the complaints procedure. This advises that people wishing to adopt a child are eligible to use the statutory complaints procedure for complaints about adoption support services.
- Ms X is self-employed and works in the field of social care. The Council approved her as a prospective adopter. Her Prospective Adopter’s Report considered her financial and employment position. It said her contract was coming to an end at the end of March 2015 and she would need to apply for another job. However it said she was “financially prepared to be able to take six months off from work to enable her to form a good attachment with any child that she adopts but will have to return to full time work”. It said she had some savings and would be applying for an adoption allowance for extra help with her finances. She had spoken to her mortgage lenders and they had agreed to allow her to pay interest only on her mortgage for six months. The Report said she sought advice from an accountant and did not take on any financial commitments she knew she would not be able to meet.
- In January 2015 the Council matched Ms X to a child, Y. The Council drew up an adoption support plan. Ms X’s supervising social worker visited her to go through the plan with her. In the section on financial support the plan said “the adopter is entitled to apply for an Adoption Allowance which is dependent on ….the outcome of the means tested financial assessment.” “The Adopter is able to take a year off work and some of this will be unpaid leave”.
- The notes of the visit record that Ms X was happy with the support plan and that the Adoption Panel would meet to consider her case in March 2015.
- The Adoption Panel meeting took place in early March to look at Ms X’s suitability to adopt and to approve the match. Ms X attended the meeting. The Panel was aware that she was self-employed and so not entitled to adoption leave, but wanted to take several months off work to look after the child. So there was a discussion about her financial circumstances. The social worker confirmed the information Ms X had given her about the agreement with the mortgage provider for up to six months. She reported that Ms X had a contingency plan and savings to allow her to extend her time off work if necessary. The social worker told the Panel that Ms X may be eligible for an adoption allowance depending on the assessment of her financial circumstances.
- The Panel recommended Ms X as suitable to adopt. However it did not decide on the match with Y because of new information that had emerged about his family circumstances that the Council needed to explore further.
- Ms X handed in her notice on her locum post in mid-March 2015.
- The Council re-scheduled the Panel meeting for mid-April 2015. Ms X could not attend for personal reasons and it had to re-arrange it for May.
- On 21 April 2015 the social worker completed Ms X’s application form for the adoption allowance with her.
- Towards the end of May 2015, after the Adoption Panel meeting, Y came to live with Ms X.
- While waiting for the outcome of the adoption allowance application Ms X asked the Council for a retention allowance as she had given up work and had no income. During May 2015 Ms X contacted the Council several times to ask what was happening with her application for the adoption and retention allowances. The Council asked her for further details of her income and outgoings which she provided.
- Ms X contacted her social worker, the Adoption Team Manager, and Y’s social worker at various times in June 2015. She said she was struggling financially as she had given up work on the understanding that the Panel would approve the match with Y in March but this had not happened. She asked the Council to decide her application for allowances without further delay.
- The Council agreed to make a retention payment of around £3,000 to cover her loss of earnings during March because the Panel had postponed its decision on matching.
- Discussions continued during June 2015 about the financial assessment for the adoption allowance. The Council advised Ms X she should claim Child Benefit and any other welfare benefits she was entitled to. However she was reluctant to claim anything other than Child Benefit.
- The Adoption Team Manager telephoned Ms X on 24 June 2015 to tell her the Council had decided to pay her the adoption allowance at the maximum rate of £1102.12 per month for three months while she made a claim for Child Benefit and Income Support/Jobseekers Allowance. Once she started receiving the benefits the amount would be deducted from the allowance. Ms X said this was only about half the amount she expected to receive and she would struggle to pay her bills. She said she would have to go back to work sooner than she had anticipated.
- Ms X’s social worker had a planned visit to see Ms X and her son the same day. While she was there Ms X discussed her financial position. The notes of the visit show that Ms X expressed her disappointment that the allowance was not as much as she had expected it to be. She said she the Council had led her to believe it was based on a means test, and she did not realise there was a maximum allowance that could be paid. She did not think the allowance would be enough for her to live on and she would have to go back to work sooner than expected. She had believed the Council’s support package would enable her to spend six months off work with her child.
- Ms X made a formal complaint to the Council at the end of June 2015. She complained about the amount of adoption allowance offered as she said she had been told it would be ‘substantial’. She also complained she had still not received the retention allowance the Council had promised her.
- The Council responded to the complaint in mid-July 2015 as follows.
- It explained that following the means test the amount of the allowance will vary with every family as it is dependent on their disposable income. The adoption allowance is not open ended and is not intended to substitute the adopter's wage, but is an allowance payable to provide help with the day to day care of the child.
- It said it was unfortunate if the use of the word 'substantial' gave rise to any misunderstanding. It said many adoption agencies in the UK do not pay an adoption allowance at all and certainly not for children under the age of five. Its view was that the amount the Council provides is comparable to other local authorities that offer allowances, and the payments are reasonable to provide for a child's needs. The monthly payment of £1102.12 quoted was at the top of the adoption allowance scale for a child of Y’s age. The Council did not agree to increase it.
- It said normally adopters are expected to claim any benefits they are eligible for which are then deducted from the adoption allowance payment. The Council had already agreed to pay the first three months of the adoption allowance without deducting Child Benefit and Income Support, in recognition of the time it can take to process benefit claims.
- It apologised for the delay in processing the retention payment and said it was setting up the adoption allowance payment on its finance system.
- ensure adopters are clear about the financial allowance policy as soon as possible so they can plan their household budget
- work closely with the finance teams to reduce the time taken to pay the allowances once the Council had agreed them.
- She had provided detailed information about her monthly expenditure and savings as part of the financial assessment.
- Managers had given her assurances that the adoption allowance would be substantial, and would enable her to stay at home to care for Y for six months or more to allow them to develop a strong attachment.
- She did not expect that the adoption allowance would equal her previous monthly salary, but she thought the means test would be in line with her monthly expenses.
- She had not been told that the allowance “was in fact a tier system with predetermined categories to the allowance and that therefore the information provided as part of a financial assessment really had no bearing”.
- She felt this was more than a question of miscommunication. Rather she felt there were failings in the use of the word ‘substantial’, in the financial assessment and in describing the allowance as means-tested.
- As a result of these failings she would suffer financial hardship and would have to return to work full-time and place Y in day care.
Analysis of fault and injustice
- Ms X complains that the Council misrepresented the amount she was likely to receive. She bases this view on the use of the word ‘substantial’, the reference to means-testing, and the amount of information the Council asked her to provide about her income and expenditure. She says she expected to receive around £2,000 per month, enough to allow her to stay off work for six months.
- The Council has awarded Ms X the maximum allowance under its policy. Its policy is in line with the law and national guidance. It uses the DfES means-test model for calculating allowances. It was not at fault in following this method which is recommended by the Government.
- I have looked carefully at the evidence about what the Council told Ms X. Ms X confirmed to me that none of the officers she dealt with gave her a specific figure for the allowance she could expect to receive. There is no written record that they did. All the written evidence shows she was told the amount would depend on a financial assessment which was means-tested. Ms X says there was no means-test as she understands it and she did not realise there were maximum rates of the allowance. But it is correct to say the allowance is means-tested. It is calculated as described in paragraph 9 above. This may not conform to Ms X’s idea of means-testing but the Council was not at fault for telling her the assessment involved a means test.
- One officer confirmed she probably use the word ‘substantial’. Ms X said others did as well. But even if this is the case, it is a subjective term which may mean different things to different people, as it appears to have done in this case. The Adoption Team Manager’s view is that the allowances the Council provides are substantial in the sense that they are generous compared with many other councils. Ms X clearly had a different figure in mind, but there is no evidence that the Council told her the allowance would be paid at the level she was expecting.
- Records show Ms X wanted to be able to take six months off work for the very laudable aim of bonding with the child and establishing routines. However I have seen no evidence to support her claim that the Council told her the allowances she received would enable her to do this. There were discussions about reducing her mortgage commitments for six months and claiming benefits. But there is nothing to suggest the Council actively led her to believe the allowances would be sufficient to substitute for six months’ wages.
- Ms X was self-employed and knew if she gave up work she would not be earning for several months. In my view it would be reasonable to expect her to have looked carefully at her financial position and obtained all information necessary to make such an important decision. If she was unsure about the amount she was likely to receive, or wanted a better idea of what ‘substantial’ meant, there was information available on the Council’s website to help her explore the matter further. It would have been helpful if the Council had explained to Ms X early on in the assessment process that there are maximum rates of allowances. The Council has picked this up as a learning point from the complaint. But Ms X confirmed to me she was aware through her professional life how fostering allowances work. Adoption allowances operate in a similar way.
- I appreciate that it was very disappointing for Ms X to have to return to work earlier than she had anticipated. However I do not find on the basis of the evidence I have seen that Ms X’s expectations were a result of misrepresentation by the Council. Also, even if Ms X had known about the maximum allowances earlier it is not possible to say there would have been a better outcome for her. If she had delayed her decision to adopt she might have missed the opportunity of being matched with Y.
- The Council has acknowledged there was delay in paying the adoption allowance and the retention payment. Ms X had to contact the Council many times to chase up the payments. She was having difficulty managing financially while waiting for the payments as she had no income and was living on her savings. So the delay caused her an injustice.
- However I consider that the £3,000 retention payment in itself, which the Council was not obliged to pay, and the overpayment of the monthly allowance, which continued until the end of December 2015, is sufficient to remedy the injustice to Ms X. She received an overpayment of over £300 a month for around seven months and the Council is not seeking to recover this. The Council has also apologised to Ms X and put in place improvements in its procedures. I do not see grounds to recommend any further remedy.
- The Council has confirmed that Ms X was entitled to have her complaint considered under the statutory children’s social care complaints procedure. It dealt with it under its corporate complaints procedure instead. However I do not consider that this disadvantaged Ms X as the Council’s investigation was detailed and thorough and resulted in a suitable remedy for her.
- The Council has already accepted it was at fault in delaying paying the adoption allowance and retention payment. I have not found any further fault. The Council has provided a suitable remedy and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman