Summary: Ms X complains the Council has failed to fully implement the recommendations made by the stage three review panel. The Council’s failure to review and amend its Adoption Support Policy in line with the review panel’s recommendations and the Council’s own assurances amounts to fault.

The complaint

1. The complainant, whom I shall refer to as Ms X complains the Council has failed to fully implement the recommendations made by the stage three review panel. In particular, Ms X complains the Council has not complied with a recommendation to review the Adoption Support Policy.

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The Ombudsman’s role and powers

2. 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)
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

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Ms X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Ms X; and
• sent a statement setting out my draft decision to Ms X and the Council and invited their comments.

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What I found

Adoption Support

5. In addition to counselling, advice and information, the Adoption Support Services Regulations sets out the prescribed adoption support services as:
• financial support;
• services to enable groups of adoptive children, adoptive parents and natural parents or former guardians of an adoptive child to discuss matters relating to adoption;
• assistance, including mediation services, in relation to arrangements for contact between an adoptive child and a natural parent, natural sibling, former guardian or a related person of the adoptive child;
• services in relation to the therapeutic needs of an adoptive child;
• assistance for the purpose of ensuring the continuance of the relationship between an adoptive child and his adoptive parent. This includes training for adoptive parents for the purpose of meeting any special needs of the child; and respite care.
• assistance where disruption of an adoptive placement, or of an adoption arrangement following the making of an adoption order, has occurred or is in danger of occurring.
6. The Regulations also set out who local authorities must provide support services to. This includes people living outside the local authority’s area
7. Statutory Guidance on adoption confirms that where a child is placed with an adoptive parent living outside the local authority’s area

“the placing authority is responsible for the assessment for and provision of such support services as are identified as needed for a period of three years following the making of the adoption order.”

8. After the three-year period following the adoption order, the local authority where the adoptive family lives will be responsible for assessing and providing adoptive support services. This three-year limitation does not apply to financial support.

What happened here

9. Ms X has been Y’s foster carer for many years and in early 2017 she applied to adopt Y. Y is profoundly disabled and receives a package of support from the Council. This includes 56 nights respite a year. Ms X told the Council she wanted the support package to carry over to the adoption support package.
10. Ms X does not live in Wolverhampton. The Council and Ms X’s home authority held differing views on who would be responsible for Y’s support. The Council agreed to fund the financial support package for three years post adoption but considered Ms X’s home authority would be responsible for support such as respite. Ms X’s home authority considered the Council was responsible and confirmed they would not offer Y an assessment or services until three years after the adoption. Ms X’s home authority considered the adoption support for the three years post adoption included respite support as this was integral to the adoption support plan based on Y and Ms X’s needs.
11. Ms X disputed the Council’s position and made a formal complaint. Ms X had taken advice and asserted the Council was not following Adoption Regulations regarding the funding of the adoption support package. She was concerned the Council’s stance was seriously delaying the adoption process.
12. The Council’s complaint response confirmed it had taken legal advice which confirmed ongoing respite provision was not adoption support. The respite is assessed regardless of whether a child is adopted or not. The Council acknowledged this advice was at odds with the advice Ms X had received and confirmed it was taking further legal advice to ensure its position was correct. Until it received this advice the Council could not determine whether Ms X’s complaint was upheld.
13. In addition, the Council confirmed it was reviewing its Adoption Support Policy to ensure there was a section dedicated to disabled children and young people.
14. As Ms X was not happy with the Council’s response, she asked for her complaint to be considered further at stage two of the complaints process. The Investigating Officer upheld Ms X’s complaint that the Council had not adhered to Adoption Regulations. The Investigating Officer noted the Council had received independent legal advice which stated the placing authority was responsible for adoption support for three years after adoption where the placement is outside its area.
15. The Investigating Officer found there was no evidence the Council had deliberately failed to adhere to Adoption Regulations in relation to its responsibilities for the Adoption Support Plan. But it had misinterpreted the regulations and there had been a lack of timeliness in obtaining independent legal advice to clarify its interpretation.
16. In response to the Investigating Officer’s report and recommendations the Council confirmed it would develop a robust action plan, which it would share with Ms X. It would also share its legal advice and Adoption Support Policy with Ms X.
17. The Council sent Ms X a copy of the action plan in September 2018. The Council advised Ms X it had obtained further legal advice and reviewed the Adoption Support Policy. The Council was satisfied it had followed Adoption Regulations and did not need to amend its policy. It also confirmed that it could not share the legal advice with Ms X.
18. Ms X asked for her complaint to be escalated to stage three of the complaints process. She questioned how the Council could be satisfied it had followed Adoption Regulations when the Stage two investigation stated a barrister had advised the Council it had misinterpreted Adoption Regulations.
19. The stage three review panel’s report states the Council confirmed it had sought further advice following the stage two investigation and the barrister had conceded the advice given was incorrect. The Council told the panel that if Y was adopted her assessed needs, in terms of her disability, would be met by the local authority where she resided. The support the Council would offer was set out in its Adoption Support Policy, which stated respite could only be offered if there was a risk of placement breakdown.
20. The Council also confirmed it was setting up a meeting with Ms X’s home authority to share its legal advice and try and resolve the issue.
21. The panel endorsed the stage two findings to uphold Ms X’s complaint based on the information provided to the Investigating Officer. The panel was concerned the initial legal advice was incorrect as it formed the basis of the Investigating Officer’s findings and that there was no evidence the Council had advised the Investigating Officer of the new advice.
22. In relation to the Council’s Adoption Support Policy, the panel considered the definition of adoption support was unclear and at times ambiguous. It did not specify what was included under each point; whether and how the support would be assessed and what the threshold would be.
23. The panel made a number of recommendations, including:
• The Adoption Support policy is reviewed to make it more robust and clearer in what support is or is not included and the basis on which decisions are made in this respect. It also needs to include a clear definition on which Local Authority would be responsible for funding and providing specific aspects of that support for Out of County placements and with particular reference to children with disabilities. And
• the Council expedite its meeting with Ms X’s home authority so that it takes place by 14 December 2018.
24. The Council spoke to Ms X’s home authority in February 2019 and sent Ms X a copy of its revised Adoption Support Policy. The revised policy changes one area of defined support from:

“Assistance to adoptive parents and children to support the adoptive placement and enable it to continue, including respite care.”

to:

“Assistance to adoptive parents and children to support the adoptive placement where there is risk of disruption to enable it to continue, including respite care.”

25. Ms X has asked the Ombudsman to investigate her complaint as she does not consider the Council has complied with the panel’s recommendation. Ms X maintains the Council has not followed Adoption Regulations, or statutory guidance. This has prevented Ms X from adopting Y. Ms X wants the Council to review its policy in line with the panel’s recommendation to ensure that disabled children can be adopted out of Wolverhampton in the future.
26. In response to my enquiries the Council states it is currently undertaking a further review of its Adoption Support Policy. A senior officer is discussing the policy with senior officers from other local authorities to seek a regional view. Once the Council has this view, it will take further legal advice. In the meantime, the Council has advised Ms X that if she wishes to adopt Y, the Council will support this with a package of adoption support which would be agreed as exceptional circumstances outside the current policy. This would mean the Council would provide respite for Y as per her assessed needs for three years post the adoption.
27. Ms X has not accepted this offer. Ms X does not consider the offer is secure enough and is concerned that without a clear policy, funding could be withdrawn. She wants the Council to have a clear policy on what it will and will not fund so that she can be confident of the support they will receive if she adopts Y.

Analysis

28. Ms X disagrees with the Council’s interpretation of Adoption Regulations, but this is not an issue the Ombudsman can resolve. The Ombudsman’s role is distinct from that of the Courts, and as such we are unable to adjudicate on complex issues of fact or law or interpret legislation. Such issues fall within the remit of the Courts and are therefore outside the Ombudsman’s jurisdiction.
29. Notwithstanding this dispute over the interpretation of Adoption Regulations and guidance, the Council has taken a position and I would expect its policy on adoption support to be clear and unambiguous in terms of what it will provide.
30. The Council confirmed in response to the stage one complaint that it would review the Adoption Support Policy to ensure there was a section dedicated to disabled children and young people. It also advised Ms X in March 2019 that it would strengthen the areas of the Adoption Support Policy concerning respite for disabled children placed outside Wolverhampton. But the Council has not amended or clarified the policy in this way.
31. I am not satisfied the Council has complied with the review panel’s recommendation regarding the Adoption Support Policy either. The minor amendment to the Adoption Support Policy in February 2019 does not make the policy more robust. It does not provide clarity regarding what support is or is not included, or how these decisions are made. Nor does it specify which Local Authority would be responsible for funding and providing specific aspects of that support for Out of County placements, particularly in relation to children with disabilities.
32. I consider these failures amount to fault. This fault has caused Ms X and Y an injustice as until the position is clarified Ms X is unable to make an informed decision regarding adopting Y. Ms X has also been put to unnecessary time and trouble in pursuing this matter.
33. I note the Council is carrying out a further policy review and would expect this address the panel’s recommendation and to make good on the Council’s earlier assurances.
34. I also recognise the Council has recently offered to provide a package of adoption support, should Ms X wish to adopt Y, outside the current policy as an exceptional circumstance. This may be a pragmatic suggestion but does not provide Ms X with the certainty she wants and would not be necessary had the Council properly reviewed the policy in a timely manner.

Agreed action

35. The Council has agreed to apologise to Ms X for the failure to review the Adoption Support Policy as agreed or in line with the review panel’s recommendation.
36. The Council has also agreed to apologise to Y for the failure to review the Adoption Support Policy as agreed or in line with the review panel’s recommendation.
37. The Council should take this action with one month of the final decision on this complaint.
38. In addition, the Council has agreed to complete the review of its Adoption Support Policy and provide Ms X with a revised copy within three months of the final decision on this complaint.

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Final decision

39. The Council’s failure to review and amend its Adoption Support Policy in line with the review panel’s recommendations and the Council’s own assurances amounts to fault. This fault has caused Ms X and Y an injustice.

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Investigator's decision on behalf of the Ombudsman