The Ombudsman's final decision:
Summary: Mr X complained the Council wrongly ended an adoption allowance for his son Y and retrospectively changed the reasons for its decision to try and justify treating Y’s older sibling differently. There is no evidence of fault in the Council’s decision to cease Y’s adoption allowance in July 2019.
- The complainant, whom I shall refer to as Mr X complains the Council has wrongly ended an adoption allowance for his son Y. Mr X asserts this is contrary to an agreement the Council made to pay adoption allowances for Mr X’s three adopted children while they remained in full time non advanced education.
- Mr X complains the Council has retrospectively changed the reasons for its decision to try and justify why it has continued to pay an adoption allowance for Y’s older sibling but will no longer pay an allowance for Y.
The Ombudsman’s role and powers
- 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)
- 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
- considered the complaint and the documents provided by Mr X;
- made enquiries of the Council and considered the comments and documents the Council provided;
- discussed the issues with Mr X;
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- The Adoption Support Services 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.
- Where an adopter applies for an adoption allowance the council should carry out a financial assessment. The adoption allowance should be reviewed at least annually, and a fresh financial assessment completed.
- The Regulations also set out when financial support ceases to be payable to an adoptive parent. This includes where the child turns 18 unless they are in full-time education. In which case financial support may continue until the end of the course or training they are undertaking.
What happened here
- Mr and X wife adopted, Y and his older sister, Z in 2003. When they subsequently adopted Y’s younger sister in 2006 the Council agreed to pay an adoption allowance for each of the children. The Council wrote to Mr and Mrs X advising the three allowances would be reviewed annually. It confirmed that unless there were any significant changes in the family’s situation, the Council would pay the allowances up to the children’s 18th birthdays.
- Mr X signed an agreement regarding the adoption support payments on 21 November 2006. The conditions of payment in this agreement state:
“… the child will be eligible for the payment until any of the following situations apply:
a, the time limit of the payment is reached;
b, the payment is assessed by the agency or adopters as no longer warranted;
c, the child ceases to have a home with the adopters;
d, the child finishes full time education and becomes self supporting;
e, the child received government support payments in his/her own right;
f, the child reaches the age of 18. In exceptional circumstances consideration will be given to extending the payment to enable the young person to complete a course of further education.”
- As part of the annual review in 2017 the Council asked Mr and Mrs X to confirm whether Y was still in full time education and to provide details of any monetary benefits and employment. Mr X confirmed Y was in full time education and that his course would end in July 2019. Later that year the Council gave Mr and Mrs X notice that Y’s adoption allowance would end in two months’ time, on his 18th birthday.
- Mr X challenged this decision and referred to the Council’s previous agreement that the allowance would remain in place while the children were in full time education. As Y was studying a full-time course, Mr X asked the Council to confirm it would continue to pay Y’s allowance. The Council subsequently confirmed Y’s allowance would continue until he was 19 years old.
- A couple of months before Y’s 19th birthday, the Council notified Mr and Mrs X that Y’s allowance would end on his 19th birthday. Mr X disputed this and asked the Council to confirm the allowance would continue while Y was still in full time education. The Council then confirmed Y’s adoption allowance would continue until July 2019, when Y’s college course ended.
- In May 2019 the Council wrote to Mr and Mrs X notifying them Y’s adoption allowance would end on 31 July 2019, at the end of his statutory education. Mr X informed the Council that Y intended to remain in education for a further year and asked it to confirm the allowance would continue. Mr X noted that both Y and Z had a learning disability, and that the Council has extended Z’s adoption allowance beyond the end of her statutory education. He stated Y’s extended education was following a necessary similar path. The Council confirmed it would review all the information on its historical files.
- The Council then wrote to Mr X in December 2019 confirming it had decided not to restart the adoption allowance or pay a further allowance to Y. The Council noted the course Y was now enrolled on was not a continuation of the course he started in 2016. It did not therefore consider it had any obligation to pay the adoption allowance.
- The Council referred to the Adoption Support Services Regulations 2005 which states payments end when:
“the child attains the age of 18 unless he continues in full time education or training, when it may continue until the end of the course or training he is then undertaking.”
- The Council understood this to mean the end of the course the child commenced on or before they were 18.
- Mr X made a formal complaint questioning the Council’s decision. Mr X noted Z was now 22 and continued to receive an allowance as she was in full time education. He considered the Council had been inconsistent in its deliberations and had sought to distinguish Y’s course from Z’s on spurious grounds to justify a financial decision.
- In its response the Council stated that where an adopted child has special education needs they will typically remain in full time education until the age of 19. In these cases, the Council will usually pay an ongoing support payment up to their 19th birthday. The Council noted it had agreed to pay ongoing support for Y until his 19th birthday, and then, as he was still in full time education, it agreed the support would continue until the end of the academic year.
- The Council maintained its position that Y’s current course was different to the one he had previously been studying and that no further payments would be made.
- As Mr X was not satisfied by the Council’s response to his complaint, he has asked the Ombudsman to investigate his concerns. Mr X asserts Y and Z’s situations are similar and should they be treated the same. He believes the Council, having initially ended Y’s allowance based on his age, retrospectively changed its reasoning to justify treating Y and Z differently.
- In response to my enquiries the Council states it agreed in 2006 to pay adoption support allowances throughout the children’s youth up to their 18th birthdays. The agreement signed on 21 November 2006 states in exceptional circumstances consideration will be given to extending the payment to enable the young person to complete a course of further education.
- The Council considers its decision to end the adoption allowance for Y was in line with the Adoption Support Services Regulations 2005. It states the regulations indicate that full-time education ends when the course the child was attending when they turned 18 is concluded. The course Y started in September 2019 was not a continuation of the course he started in 2016.
- The Council states Mr X provided information to show Z continued on the same course and did not start a new one. It states it was considering ending the allowance due to Z’s age in May 2020, but Mr X advised the course had been extended by a further year. On this basis the Council agreed to fund the adoption allowance for Z for another year.
- However, Mr X advised the Council Y was remaining in education, but accessing a course through NHS options, rather than progressing to NVQ level 3 of his current course. On this basis the Council decided to end Y’s allowance.
- The Council states Z’s is the only case where it has continued to pay an adoption allowance to a young person who is 22. In all other cases, adoption support ended prior to this. The Council states it sought retrospective legal advice in respect of Z’s allowance. This confirmed the Council was only liable to pay an adoption allowance until the end of statutory education, that is A-levels or age 19 for children with special educational needs (SEN). Support for tertiary education is discretionary. Based on this advice, the Council should have ceased payments for Z, but as it had already made a commitment to pay the allowance until she was 22, it decided not to renege on this agreement. The Council states it made no such commitment to Y, and only agreed to pay the allowance until the end of his statutory education.
- Due to current COVID-19 restrictions, the Council is currently unable to access all of its historic paper files relating to Y but has provided copies of the electronic records.
- It is clear from the information provided that the Council told Mr X in 2006, it would pay adoption allowances for each child up to their 18th birthdays. The signed agreement detailed other situations which would lead to the payments ending. It also confirmed that in exceptional circumstances the Council may consider extending the payment to enable the young person to complete a course of further education.
- The Council intended to end Y’s allowance on his 18th birthday but extended it to his 19th birthday as Y was still in full time education. At Mr X’s request, the Council then agreed to continue to pay the allowance until the end of the academic year following Y’s 19th birthday. But there is no evidence the Council agreed to pay the adoption allowance for Y beyond his statutory education.
- Although Mr X disagrees with the Council’s decision and its reasoning there is no evidence of fault in the decision to cease Y’s allowance in July 2019. The Council’s actions are in line with the provisions of the Adoption Support Services Regulations 2005. Any agreement to make payments beyond the requirements of the Regulations is a matter of the Council’s discretion.
- I recognise the Council has exercised discretion to continue paying the adoption allowance for Z beyond her 22nd birthday. But it does not automatically follow that the Council must agree to the same provision for Y. The Council’s agreement to continue paying the adoption allowance to Z for so long is unique and goes beyond its statutory duties.
- There is no evidence of fault in the Council’s decision to cease Y’s adoption allowance in July 2019.
Investigator's decision on behalf of the Ombudsman