Summary: Mr Y and Mrs Z complain about the lack of financial support provided by the Council following the adoption of their daughter, whom I will call J. They also complain about the way the Council handled their complaint. The Ombudsman finds fault with the Council for wrongly stating that Mr Y and Mrs Z were eligible for adoption allowance payments, thus raising their expectations. The Council also delayed in sharing relevant information and documents with Mr Y and Mrs Z after their adoption of J. The Council will apologise and pay £200 for the time, trouble and worry caused by the fault.

The complaint

1. The complainants, whom I will call Mr Y and Mrs Z, complain that the Council:
1. wrongly refused to pay the post-adoption allowance a court granted.
2. failed to provide copies of the Prospective Adopters Report, Life Story, and Child Permanence Report; and
3. wrongly refused to deal with their complaint
2. Mr Y and Mrs Z say they have suffered injustice. This is because they have been unable to fund the speech therapy that their daughter, J, needs. Mr Y and Mrs Z also say that J is at risk from her birth mother because letterbox contact was not maintained following the Council’s failure to provide the necessary information.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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)
6. 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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How I considered this complaint

7. Before making this decision we:
• Discussed the complaint with Mr Y and Mrs Z and considered any information they provided;
• Made enquiries of the Council and considered its response;
• Consulted the relevant law and guidance around post-adoption support;
• Considered the Ombudsman’s ‘Guidance on Jurisdiction’ and decided to investigate a ‘late’ complaint for the reasons explained in paragraph 36 of this statement; and
• Issued a draft decision and invited comments from the Council and Mr Y and Mrs Z. I considered any comments received before making a final decision.

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What I found

J’s placement

8. Mr Y and Mrs Z fostered J through an independent agency shortly after her birth in 2017. J was not placed with Mr Y and Mrs Z by the Council.
9. In March 2018 Mr Y and Mrs Z expressed an interest to adopt J. The Council considered the request but felt that J’s birth mother presented a risk to the success of any long-term placement due to her proximity to Mr Y and Mrs Z’s address. The Council describe J’s birth mother as being ‘volatile’ and ‘dangerous’.
10. Following the Council’s decision to oppose the expression of interest, Mr Y and Mrs Z applied to the court in May 2018 seeking a private adoption. The court asked the Council to provide a report to assess the adoption.
11. The court granted an adoption order in October 2018.

Adoption allowance

12. The government’s ‘Statutory Guidance on Adoption’ (July 2013) says that:

“Where a foster carer applies to adopt a child that they have been looking after and the local authority opposes the application, the local authority is not required to meet the legal costs of the foster carer. This is because the authority has not placed the child for adoption with the foster carer, and so the child does not fall within the definition of an ‘agency adoptive child…”

13. In July 2018 the social worker allocated to J’s case emailed the Council’s finance team to enquire whether Mr Y and Mrs Z would be eligible for adoption allowance payments. The officer responded: “[J] would be eligible for an allowance due to her BME status. This is means tested so we would have to undertake a financial assessment to confirm the level. Allowances would be at our standard rate which for a 1 year old is a max of £67.30, but we would confirm after the assessment. I have attached the forms which need to be completed and returned with copies of income and expenditure. We would need to know if they intend to continue fostering after the adoption order is granted (after the usual 1 year period)”
14. The social worker proceeded on that basis, and the report submitted to the court wrongly said that Mr Y and Mrs Z would receive adoption allowance payments for J. However, the version sent to Mr Y and Mrs Z said: “[J] will not be entitled to an adoption allowance as a Nottingham City looked after child. She will not receive any additional ongoing support at this time due to not having the support needs presenting. The couple are aware that they are able to access the Nottingham City’s Post Adoption Service if any support is required in the future. [J] is thriving in the care of her foster carers and therefore no concerns have been raised.”
15. When arranging to sign off the financial agreement for adoption allowance payments on 14 November 2018, the Council realised that the report issued to the court contained incorrect information because J was not entitled to allowance payments. The social worker called Mr Y and Mrs Z in November to confirm this. The note of the telephone conversation says: “TC [telephone call] with [Mrs Z] to advise of that they would not be getting allowance due to it being private. This was not what I had initially been informed. I advised I had sent out in post information regarding post order and support of agencies, examples of letterbox and an exit questionnaire for them to complete. This include info on pupil premium and adoption support fund, articles etc”
16. In May 2019, the Independent Reviewing Officer (IRO) contacted Mr Y and Mrs Z by email. The IRO said: “The assessment was filed to the court with a promise of the allowance that would be means tested every year after you receive the first year’s allowance.  What I can say to you is that you have grounds to make a complaint and seek legal advice if your complaint is not upheld as the Local Authority has gone against their promise in a court of law to provide you with an allowance. ”
17. I find fault with the Council for wrongly stating that Mr Y and Mrs Z were eligible for adoption allowance payments. This fault caused injustice in the form of raised expectations. However, I consider the Council acted quickly to inform Mr Y and Mrs Z of its mistake in November 2018. However, the IRO told them in May 2019 that they should be entitled to payments, thus giving them cause to complain.
18. The regulations are clear that Mr Y and Mrs Z are not entitled to the allowance. Although they point out that J is of BME origin, and should in their view receive allowance payments, the adoption was private and so they are not entitled to receive adoption allowance under the Council’s usual BME eligibility.
19. The Council made an administrative error in its report. This is unfortunate, but the law is clear, and I cannot say the Council should make the payments as Mr Y and Mrs Z suggest. The Council will, however, write to Mr Y and Mrs Z to apologise for temporarily raising their expectations and causing confusion, time and trouble.

Sharing information

Later life letter and life story book

20. A letter for later life is written by a social worker who knows the adopted child. The purpose of the letter is to provide information about the child’s history and to explain why they were adopted. The statutory guidance says the adopter should receive the letter within ten working days of the ceremony to celebrate the making of the adoption order.
21. The life story book helps children to understand their life before adoption and is to be shared with the child when they are at an appropriate age to understand its contents. The statutory guidance says the book should be “… co-ordinated by one person, preferably the child’s social worker, and given to the child and prospective adopter in stages. The first stage is at the second statutory review of the child’s placement with the prospective adopter. The completed life story book should be presented within ten working days of the adoption ceremony, i.e. the ceremony to celebrate the making of the adoption order”
22. The Council acknowledges that it did not provide J’s letter until 18 June 2020, and the life story book until 23 January 2020. This is fault. The Council says the delay was because of the social worker’s high workload.
23. This delay caused injustice to Mr Y and Mrs Z in the form of avoidable time and trouble because they had to pursue this matter with the Council for longer than they should have done. I also consider it caused some injustice to J because, although she is a young infant, Mr Y and Mrs Z were delayed from gradually introducing her to the content of the letter and book, as and when appropriate.
24. The Council will remedy that injustice with the actions listed at the end of this statement.

Reports

25. The statutory guidance says: “Section 60(2)(b) of the Act provides an adopted person, on reaching age 18, with a right to receive from the AAA [appropriate adoption agency] the information disclosed under section 54 of the Act to the prospective adopters during the adoption process. This will be the information contained in the child’s permanence report (CPR) provided by virtue of regulation 31 of the Adoption Agencies Regulations 2005 (AAR). The child’s permanence report will include identifying information about the child, the birth parents, birth siblings and possibly other members of the birth family. It will also include information about the child’s early life and family history, their social, emotional and behavioural development and other matter”
26. In their complaint to the Council, Mr Y and Mrs Z said the Council failed to share a copy of the adoption reports with them. When responding to the complaint the Council apologised for not sharing the CPR sooner and issued a copy to Mr Y and Mrs Z on 18 December 2019.
27. The Council then issued a copy of the non-agency adoption report in April 2020. It explained the delay for sharing this report was due to the Council needing permission from the courts before disclosing. The Council then had to make the necessary redactions.
28. The delay in issuing the CPR caused injustice to Mr Y and Mrs Z in the form of avoidable time and trouble because they had to pursue this matter with the Council for longer than they should have done. The Council will remedy that injustice with the actions listed at the end of this statement.

Letterbox contact

29. Letterbox contact is agreed through the court process. It is a formal arrangement for the birth and adoptive parents to share information about the adopted child.
30. In its response to Mr Y and Mrs Z’s complaint, the Council said that it requested arrangements for letter box contact to be made in October 2019. However, it mistakenly directed the request to the wrong email address, and therefore information about the exchange of letters was not shared with Mr Y and Mrs Z and J’s birth parent. This is fault.
31. In December 2019 the Council provided the necessary contact details for Mr Y and Mrs Z to arrange letterbox contact.
32. Mr Y and Mrs Z say the Council’s failure to facilitate the letterbox contact until December 2019 means that J’s birth parent could become ‘agitated’. They worry about the possible long-term consequences.
33. The administrative error in directing the email to the incorrect email address has caused injustice to Mr Y and Mrs Z. This is in the form of time and trouble, as well as avoidable worry. Although J’s birth parent has not, to my knowledge, challenged the lack of letterbox contact, I can see how this would create worry and anxiety for Mr Y and Mrs Z. The Council will remedy the injustice with the actions listed at the end of this statement.

Complaint handling

34. Mr Y and Mrs Z complained to the Council in December 2019; fourteen months after their adoption of J. The Council considered the contents of the complaint letter, but decided that it did not meet the criteria for an investigation under the statutory children’s complaints procedure, the process for which is outlined in the statutory guidance ‘Getting the best from complaints’. The relevant part of that guidance says:

“Local authorities do not need to consider complaints made more than one year after the grounds to make the representation arose (regulation 9). In these cases, the Complaints Manager should write to advise the complainant that their complaint cannot be considered and explaining the reasons why he has adopted this position. This response should also advise the complainant of their right to approach the Local Government Ombudsman. However, as with freezing decisions, decisions need to be made on a case by case basis and there should generally be a presumption in favour of accepting the complaint unless there is good reason against it”

“The time limit can be extended at the local authority’s discretion if it is still possible to consider the representations effectively and efficiently. Local authorities may also wish to consider such complaints if it would be unreasonable to expect the complainant to have made the complaint earlier. For example, where the child was not able to make the complaint or did not feel confident in bringing it forward in the year time limit”

35. Mr Y and Mrs Z approached the Ombudsman because they felt they had a valid complaint which required investigation. Although the Ombudsman’s jurisdiction also says that we should not investigate complaints when more than 12 months have passed since the person affected had cause to complain, we can exercise discretion to investigate in some cases.
36. One of the grounds for exercising our discretion is ongoing injustice. When assessing the complaint, we considered that the claimed injustice (lack of adoption allowance payments) was a potential ongoing injustice which we should investigate. Although we exercised our discretion, this does not imply fault on the Council’s part for refusing to investigate under the statutory complaints procedure. It was entitled to refuse the complaint, and so I do not find fault on this point.

Agreed action

37. To remedy the injustice caused by fault, the Council has agreed to:
• Write to Mr Y and Mrs Z, within four weeks of my final decision, to formally apologise for the fault identified in paragraphs 22, 28 and 33 of this statement
• Pay £200, within four weeks of my final decision, for the time, trouble and worry caused by the fault identified in this statement; and
• If requested to do so by Mr Y and Mrs Z, write to J’s birth mother in the event that she raises any concerns about the absence of letterbox contact with J in 2019. The Council’s letter should explain the lack of contact was due to an administrative error by the Council and not due to any resistance from Mr Y and Mrs Z. There is no deadline for this part of the remedy; the Council should instead keep this under review.

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Final decision

38. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions listed in the section above provide a suitable remedy for the injustice caused by Council fault.

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Investigator's decision on behalf of the Ombudsman