The Ombudsman's final decision:
Summary: I have not found fault in the way the Council calculated the adoption allowances payable for children Mrs X has adopted.
- Mrs X complains that the way the Council calculated their child’s adoption allowance is flawed.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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)
How I considered this complaint
- I spoke to Mrs X and considered the information she provided. I asked the Council for information and considered its response to the complaint. I sent my draft decision to the Council and to the complainant to allow both parties an opportunity to comment before we reached a final decision.
What I found
- The Adoption Support Services Regulations 2005 set out the circumstances in which financial support is payable to support the adoption of a child. Councils may make payments in respect of the general costs of accommodating and maintaining a child.
- Guidance issued by the Department for Education (DfE) suggests a model for deciding what financial support should be paid. It is a means tested model. It is not statutory guidance but the DfE recommends it is used to ensure a consistent approach is used.
- The model is based on the family’s disposable income and takes account of all income and expenditure. It specifies what should be included and what should not.
- In respect of income, it states:
“Other income to take into consideration includes maintenance
or special guardian allowances (including enhancements for special
needs) paid for any child. This latter may be paid where, for example,
the family have adopted or become a special guardian for a child with a
different local authority and therefore receive a separate allowance.”
Mrs X’s complaint
- Mrs X has two adopted children. She receives adoption allowance for both children. However, she considers the way the Council calculates the allowances is unfair and detrimentally affects siblings placed together, or other instances where two children living in a household are receiving adoption allowance.
- Mrs X explained the way the allowance was calculated. She stated in year one, there would be no previous year’s adoption allowance to take into account. But, from year two the previous year's allowance paid for their youngest child is included as income in the calculation for their oldest child, and vice versa. Because the adoption allowance received for one child is considered income for the family overall, its inclusion in the calculation results in a reduction in the amount each child receives.
- Mrs X also says this causes the amount received to fluctuate. In one year, the adoption allowances received will be lower because of the increased income taken into account. The next year, adoption allowances will be higher again because of the previous year’s reduction in adoption allowances (and as a result the reduction in overall household income).
- Mrs X also complained that because of the way the adoption allowances are calculated, a child in a household where two or more children receive adoption allowance would receive less than a household with only one adopted child. This is because the calculation for a sole child in a household would not take account of the child’s own adoption allowance as income, it only takes account of adoption allowance being received by other children in the household. Mrs X complained that the Council’s approach to calculating adoption allowances is unfair to siblings or cases in which multiple children reside in the same household as a result.
- The Council explained that the approach it took in Mrs X’s case was its standard approach. It told Mrs X in response to her complaint that it followed the government guidance about how adoption allowance should be calculated. The government guidance states that existing adoption or special guardian allowances received for any child should be taken into account and treated as income. The relevant guidance is set out above.
- Our role is to consider if there has been fault in a decision a council has made or an action it has taken. However, if there is no fault in the process, we are unlikely to have grounds to question the outcome. We could generally only criticise a position a council has taken if we found it to be ‘perverse’. That is to say it took a position or made a decision that was so unreasonable, that no other properly managed local authority would be likely to reach the same view on the same facts.
- I recognise the question Mrs X raises concerning the adoption allowances for children in her care. She highlighted that by taking account of an adoption allowance received by another child in a household, multiple adopted children in a household received less allowance (each) than a single adopted child in a household would.
- Mrs X noted an example in the guidance that referred to families receiving an allowance for a child adopted via a different local authority. She felt this should not apply generally where more than one adopted child resided in a household.
- The Council explained it calculated the relevant adoption allowance in the way the government guidance suggested.
- The relevant paragraph of the guidance refers to taking account of allowances being received for any other child. Although it gives an example of an adoption through another authority, the guidance is not explicit that it should only apply to adoptions through other authorities.
- In response to my draft decision, Mrs X told me she felt the Council would be likely to stop the adoption allowance for one of her children altogether when it was next reviewed.
- I understand Mrs X questions what is included in the calculations. However, the Council has reached its decision properly having regard to the government guidance that proposes a standard approach for all local authorities for consistency reasons.
- I cannot say what will be paid in future years but as the Council has followed the DfE guidance and it has properly based its decisions on this, I do not have grounds to criticise its actions or call into question the outcome. I remain of the view there is no evidence of fault in the Council’s actions. I appreciate Mrs X disagrees with the way calculations have been made.
- As I have not seen evidence of fault, I have now completed my investigation and closed my file.
Investigator's decision on behalf of the Ombudsman