Sandwell Metropolitan Borough Council (17 001 263)

Category : Children's care services > Adoption

Decision : Upheld

Decision date : 05 Sep 2018

The Ombudsman's final decision:

Summary: Miss X complained the Council took too long to agree her adoption allowance and respond to her complaint. She also complained about the amount the Council said was due. She said the Council had not implemented recommendations following her earlier complaint. The Council was at fault for failing to implement the recommendations and for failings in its handling of her second complaint. It correctly calculated the adoption allowance but the information it gave Miss X about this was not clear. The Council should review its processes and pay Miss X £400 for her time and trouble and the avoidable distress caused.

The complaint

  1. Miss X complained the Council took too long to agree her adoption allowance and also delayed in responding to her complaint. She complained about the amount of the allowance calculated which she said was lower in the second year when her only income was benefits than in the first year when she had some earned income. She said this discriminated against adopters on a low income. She also complained the Council had not implemented the changes recommended at the end of a stage 2 investigation into her complaint about the first application for adoption allowance.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We 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, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I spoke to Miss X and considered the information she provided.
  2. I considered the Council’s replies to my enquiries.
  3. I have considered the Adoption Support Regulations 2005, the Adoption statutory guidance (July 2013), the statutory guidance Getting the Best from Complaints, and our guidance on remedies. I have also considered the Council’s Adoption Support policy and its Means Test policy for Adoption, Special Guardianship and Residence Orders.
  4. I gave the Council and Miss X the opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

  1. 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. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
  2. The guidance states that complaints about the provision of adoption support are covered by the statutory complaints process. (Getting the Best from Complaints para 2.3.1)

Adoption allowance

  1. The Adoption Support Regulations 2005 set out the circumstances in which an adoption allowance may be paid to adopters. This includes where it is necessary to ensure the adoptive parent can look after the child or where the child needs special care. The adoption statutory guidance says the overall intention is that the adoption of a child or the continuation of adoption arrangements should not be prevented because of lack of financial support.
  2. Where an adopter applies for an adoption allowance the council should carry out a financial assessment. Although the government has published a recommended policy for financial assessment councils are free to develop their own policy. This should include considering the applicant’s financial resources and the amount required for her reasonable outgoings and commitments. The statutory guidance says an adopter should apply for all benefits and tax credits they may be eligible for. Any adoption allowance paid should complement and not duplicate support available through the benefits and tax credits system.
  3. The adoption allowance should be reviewed at least annually and a fresh financial assessment completed.

Adoption support plan

  1. Where a council is proposing to provide support services on an ongoing basis (other than advice and information) it should prepare an adoption support plan. Adoption statutory guidance, 2013, para 9.52
  2. This council’s Adoption Support policy at section 8 says the adoption support plan should include any proposed financial support, how the amount has been calculated, and details of payment if paid in instalments.

What happened

First application for adoption allowance

  1. Miss X was approved as an adopter and a child was placed with her in August 2015. The Council recommended Miss X take 12 months off work to bond with her child. Miss X applied for an adoption allowance in July 2015 to enable her to take that time off work. Miss X complained the Council took too long to agree the allowance and its decision about this in December 2015 was wrong.
  2. The Council asked an independent investigator to consider her complaints under the children’s statutory complaints process. The investigator found:
    • an unacceptable delay in finalising the adoption allowance;
    • that Miss X had to provide the same information two or three times;
    • the process for agreeing and paying adoption allowance was confusing and it was unclear who was responsible for what, which led to mistakes and delays;
    • that no-one took ownership when Miss X complained;
    • that not all the agreed support had been provided;
    • that when cheques were sent out there was no covering letter to explain what the cheque was for and how it was calculated;
    • that there were failings in the complaints handling because the Council did not acknowledge receipt nor keep Miss X updated about progress nor did it send a letter to Miss X setting out the outcome of her complaints.
  3. The investigator recommended the Council should:
    • send a full letter of acceptance and apology to Miss X;
    • review the adoption allowance process and procedure, to include developing a checklist of paperwork that an applicant must provide, and developing a process map to clearly outline each person’s role and responsibility;
    • ensure an officer assists the adopter to complete the application rather than send them forms to complete on their own;
    • provide training for staff on the adoption process, including the processes for adoption allowance; and
    • pay Miss X the £2,561 for additional support that was orally agreed.

There were also recommendations about contact with siblings, which are not relevant to the complaint about adoption allowance.

  1. The independent investigator wrote to Miss X on 8 July 2016 enclosing a copy of the final report. She said she had spoken to another Council officer about the “seeming discrepancy in the Complaints Process” and had been advised that the children’s statutory process was only for use for “a complaint that has affected a child”. The Council decided this complaint did not affect a child and therefore it did not need to offer a Stage 3 Panel.
  2. I have not re-investigated the complaints already considered by the independent investigator. However, I have considered whether the Council has complied with the recommendations made. The Council wrote to Miss X on 27 July 2016 to confirm its acceptance of the findings. It wrote again on 11 August 2016. It acknowledged failings and delays and apologised. It paid Miss X £3061, which included £2,561 for support offered and £500 for the time and trouble involved in making the complaint.
  3. The Council says it has delivered training to staff, including social workers, independent reviewing officers and team managers, that covered all aspects of adoption, including adoption support.
  4. The Council says it has not been able to finalise its review of the Adoption Support policy because the senior manager who was responsible for this has been on long term sick leave. It says a new team manager has now been asked to take the lead on this and it hopes this will be completed by the end of October 2018.

Second adoption allowance application

  1. Miss X decided to take a second year off work to give her child the best possible start. She made a second application for adoption allowance in mid November 2016. The Council says a social work assistant visited Miss X at home and helped her complete the application. It says the paperwork was sent to its finance team the next day. It says it told Miss X on 7 December 2016 that the financial assessment had been sent for approval.
  2. The Council emailed Miss X on 21 December 2016 to explain how it had calculated the allowance. It said it had undertaken a means test that confirmed her household had “no excess income”. It said she was therefore eligible for the full allowance of £90.98 per week less deductions for child benefit and child tax credit. This produced an entitlement of £6.26 per week. It explained that the adoption allowance was higher in the previous year because Miss X was receiving a smaller sum in child tax credits. It formally agreed the adoption allowance on 13 January 2017.
  3. On 4 April 2018, in response to the complaint it sent Miss X a copy of its means test policy. The policy shows the Council calculates the applicant’s total income, including income from benefits (excluding child benefit and child tax credits), earned income and other income (such as investment income). It then calculates the “allowable expenditure”, which includes housing costs. It then allocates a sum for “core regular family expenditure”, which is based on income support rates plus 25%. It then calculates total weekly income less allowable expenditure and core regular family expenditure. If this figure is positive it will be divided by 2 – this means the family will have 50 pence deducted from the weekly maximum payment. If the figure is negative it will not be used in calculating the actual allowance payable.
  4. The means test is used to decide if the household has excess income. If the household has no excess income the full adoption allowance is payable, less deductions for child benefit and child tax credit. When Miss X made her first application for adoption allowance in July 2015 the Council decided she was entitled to the full allowance of £90.80 less child benefit of £20.70 less child tax credits of £34.04, which produced an allowance of £36.06 per week. When Miss X made the second application in November 2016, the full allowance was £90.98 less child benefit of £20.70 less child tax credits of £64.02, which produced an allowance of £6.26 per week. The reason the allowance is lower is because the child tax credits are higher and, if the income figure produced by the means-test described above is negative it is not used in calculated the actual allowance paid. This means the lower income in the second year does not affect the allowance payable. When an applicant has a lower income they will generally be entitled to a higher child tax credit payment, which then reduces the adoption allowance.
  5. Miss X says the policy and calculation is unintelligible and the results of applying the policy are unfair, particularly for single adopters on a low income.

Complaints handling – second adoption application

  1. Miss X complained on 1 March 2017. She said she had been assured her application would be processed within 2 weeks, as a matter of urgency, but she had not received any money despite having received three remittance slips and chasing the Council repeatedly. She said the criteria used to decide the amount of the allowance was not fit for purpose and that, once again, no-one was taking responsibility for failings in the service.
  2. The Council replied on 4 April 2017. It said it had sent cheques to Miss X but it had now confirmed these were not cashed and had reissued them. It said it had explained how it had applied the means-test in its email on 21 December 2016. It provided a copy of its Means Test policy.
  3. Miss X complained to the Ombudsman but was told she needed to complete the Council’s complaints policy before we could investigate. We asked the Council to investigate the complaint and it decided a team manager would speak to Miss X and agree how it could resolve the complaint. The Council believes the team manager did speak to Miss X but it has no record of the conversation.
  4. The Council accepts there were a number of delays because the team manager was then absent. It says a meeting was arranged for November 2017 but was later cancelled and rearranged for January 2018. This meeting did not go ahead. Miss X said there was no point in the team manager visiting if she could not answer her key question, which was about the discriminating effect of the adoption allowance policy. The manager agreed the complaint should be escalated.
  5. Miss X made a further complaint to the Ombudsman in March 2018 because she had heard nothing further from the Council. The Council wrote to Miss X on 22 March 2018 to apologise for the delays. It paid her £300 for her time and trouble. It said a team manager would contact her on her return to work in early April. The Council contacted Miss X on 20 April to say a senior manager would write to her to address the question of discrimination. The Council wrote on 27 April to say it did not consider the policy was discriminatory but it would be reviewed to make it clearer. It offered a full financial review. The Council did not carry out this review and thinks this was because Miss X did not take up the offer. Miss X says the Council did not follow-up on the offer. The Council has not produced a clear record of what happened about this.

My findings

Children’s statutory complaints process

  1. The Council decided the children’s statutory complaints process did not apply to Miss X’s complaints about adoption allowance because the complaint did not affect a child. It says it decided the complaint was about its procedures and did not specifically relate to a child. This is fault. The statutory guidance specifically states the statutory process applies to complaints about adoption support, including assessments and related decisions. Therefore, Miss X should have been offered a Stage 3 panel when she complained about the first adoption allowance application. However, I do not consider this fault has caused an injustice to Miss X.

Implementation of stage 2 recommendations

  1. The Council has not implemented the key recommendation from the Stage 2 investigation about reviewing its process and procedure. It says it has considered its Adoption Support policy but has been unable to complete this because of staff absences. This is fault. This fault has contributed to Miss X’s uncertainty about the second adoption allowance application.

Second adoption application

  1. In mid-November a Council officer visited Miss X to assist her to complete the second application (as recommended by the stage 2 investigator). It sent paperwork to finance team next day. It had told Miss X how much adoption allowance it would pay by mid-December 2016 and had formally decided this by mid-January 2017. The Council is not at fault for the time taken to decide the application.
  2. The Council used its means-test policy to decide Miss X’s household had no excess income. It deducted child benefit and child tax credits from the full adoption allowance. The Council’s policy treats council tax credits differently to the government’s model policy but the Council was entitled to develop its own policy. It correctly followed its policy in calculating the amount of the allowance.
  3. The Council did not prepare an adoption support plan setting out the support agreed and the reasons for it as required by the statutory guidance on adoption. This is fault. This fault did not cause an injustice to Miss X.
  4. There was a delay in paying the adoption allowance but this was because the Council sent cheques to her and she did not receive them. When Miss X told the Council about this it checked whether they had been cashed and reissued them. The Council is not at fault.

Complaints handling – second adoption application

  1. The Council delayed in responding to Miss X’s complaint. This is fault. This fault meant she had to complain to us. The Council has already paid her £300 for her time and trouble. I consider that given the very long delays involved and the fact this was the second time she had complained about some of those issues this is not sufficient. I will recommend the Council hers her an additional £200 for the poor complaints handling.
  2. The Council says it did tell Miss X she could request an independent review of its complaint response but she decided to complain to us instead.

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Agreed action

  1. The Council will, within one month of the date of the final decision:
    • Apologise to Miss X for failing to implement the recommendations following Miss X’s first complaint, for not preparing an adoption support plan, and for poor complaints handling relating to the second complaint;
    • Pay Miss X £400 (£200 for the avoidable distress caused to Miss X by its failure to implement the stage 2 recommendations and a further £200 for poor complaints handling relating to the second complaint).
  2. The Council will, within three months of the date of the final decision,
    • review its policy and procedures for adoption support allowances to ensure that the process runs smoothly and the information it provides to applicants is clear. In particular it will review its means-test policy and consider whether the result of applying this is fair to applicants.
    • It will write to the Ombudsman to explain what steps it has taken and what changes it has made as a result of the review.

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Final decision

  1. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.
  2. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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Investigator's decision on behalf of the Ombudsman

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