The Ombudsman's final decision:
Summary: Mr and Mrs B complained that the Council incorrectly calculated their adoption support allowance by including their child’s Employment and Support Allowance in the calculation. We find no fault in the Council’s decision to include ESA in the calculation.
- Mr and Mrs B complain that the Council incorrectly calculated their adoption support allowance. They say their child’s Employment and Support Allowance (ESA) should not have been included in the calculation because it is a payment for the child and not the adoptive parents.
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 have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided. I have also considered relevant legislation and guidelines and the Council’s policies and procedures.
- Mr and Mrs B 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
Legal and administrative background
- Adoption statutory guidance states a decision on the provision of financial support must be based on the needs and resources of the child and family. The purpose of financial support is to ensure the adoption of a child or the continuation of the adoption arrangement after an adoption order is made.
- Financial support is means tested. Councils normally use the Department for Education and Skills’ Standardised Means Test Model for Adoption and Special Guardianship Financial Support. But the test is a suggested model only. It is not a statutory requirement for councils to use this model in place of their own system.
- In determining the amount of financial support, the council must take account of any other grant, benefit, allowance or resource which is available to the person in respect of his needs as a result of the adoption of the child.
- The council must also take account of —
- the person’s financial resources, including any tax credit or benefit, which would be available to him if the child lived with him;
- the amount required by the person in respect of his reasonable outgoings and commitments (excluding outgoings in respect of the child);
- the financial needs and resources of the child. (Regulation 15 of The Adoption Support Services Regulations 2005)
- if any relevant change of circumstances comes to their notice;
- at any stage in the implementation of the plan that they consider appropriate. (Regulation 20 of The Adoption Support Services Regulations 2005)
- the child ceases to have a home with him;
- the child ceases full-time education or training and commences employment;
- the child qualifies for income support or jobseeker’s allowance in his own right; or
- 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. (Regulation 11 of The Adoption Support Services Regulations 2005)
Employment and Support allowance
- Child benefit ceases when a child reaches the age of 18 and the young person is then eligible for income support or employment support allowance.
- Employment and Support Allowance (ESA) is a benefit paid to people who have limited capability for work because of sickness or disability. If someone is not able to work due to illness or disability and is not entitled to statutory sick pay, they can claim ESA rather than income support.
- The government sets out a three-stage procedure for councils to follow when looking at complaints about statutory social services. The handling and consideration of complaints consists of three stages: stage 1 - Local Resolution, stage 2 - Investigation and stage 3 - Review Panel. (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
- The timescales in working days for the procedure are:
- 10 days at stage 1 (with a further 10 days for more complex complaints or additional time if an advocate is required);
- 25 days at stage 2 (with maximum extension to 65 days);
- 20 days for the complainant to request a Review Panel;
- 30 days to meet and hold the Review Panel at stage 3;
- 5 days for the Panel to issue its findings; and
- 15 days for the local authority to respond to the findings
(Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
- In a limited number of cases, Councils can refer the complaint to the Local Government Ombudsman after stage 2. Stage 2 must have delivered:
- a very robust report;
- a complete adjudication;
- an outcome where all complaints have been upheld (or all significant complaints relating to service delivery in respect of the qualifying individual); and,
- the local authority is providing a clear action plan for delivery; and
- the local authority agrees to meet the majority or all of the desired outcomes presented by the complainant regarding social services functions.
- Mr and Mrs B received adoption allowance for their child, C. In 2017 C turned 18 and started to receive Employment Support Allowance. The Council agreed to pay the adoption allowance until C finished full-time education. But, in August 2019, the Council stopped the adoption allowance. Mr and Mrs B complained.
- The Council responded at stage 1 of the statutory complaints procedure in October 2019. It explained it had taken legal advice which was that Mr and Mrs B were not entitled to adoption allowance because C was receiving ESA as an adult.
- The Council’s finance department also wrote to Mr and Mrs B explaining they were not entitled to adoption allowance because C was in receipt of ESA. The Council said it would honour its previous agreement to allow Mr and Mrs B’s claim for October 2018-August 2019 and would not take ESA into account for this period. But, from 1 September 2019, C’s income would be taken into account in the assessment and they would not be eligible for adoption allowance.
- Mr and Mrs B asked for their complaint to be escalated to stage 2 stating that the means test should only take into account their income and not C’s.
- The Council appointed an Investigating Officer (IO) and an Independent Person (IP) in November 2019. They met with Mr and Mrs B in December 2019 to agree a statement of complaint. The IO and IP submitted their reports in April 2020. The Council accepted the IO’s findings and recommendations, one of which was that it would review the means test of 2019/20 and issue a decision notice explaining the basis of the calculation.
- In July 2020 the Council wrote to Mr and Mrs B confirming it had reviewed their adoption allowance for C for 2019/20 and decided they were not entitled to an adoption allowance. It explained how it had made this calculation. It said child benefit would normally be deducted from the payment but, as C was now in receipt of ESA instead of child benefit, this would be deducted instead.
- In August 2020 the Council wrote to Mr and Mrs B again explaining how ESA had been treated in the assessment. It said the legislation did not specify how ESA should be treated but did state that adoption allowance should end when income support is awarded to a young person. It explained its legal advice was that ESA awarded to the young person should be considered as similar to income support as this is only awarded to adults. The Council stated that, as child benefit was no longer being paid to C, it was appropriate to substitute the ESA payment in the assessment. This complied with Regulation 15 (3)(c) which states that the local authority must take account of the child’s financial needs and resources.
- Mr and Mrs B asked the Council to escalate their complaint to stage 3. The Council advised that progressing the complaint to stage 3 was unlikely to lead to a different outcome because most of their complaints were upheld at stage 2. So, Mr and Mrs B complained to the Ombudsman about the way the Council calculated their adoption support allowance.
- It is clear from the guidance on using the Department for Education and Skills’ Model Test that welfare benefit payments should be taken into account in reaching a decision on adoption allowances.
- The Council’s Working Practices for Adoption and Special Guardianship Financial Support is largely based on the Model Test and states that child benefit payments for the adopted child are not included in household income but are deducted from the final amount payable.
- The Council’s Children’s Services Procedure Manual states “Where regular financial support is considered appropriate, the amount to be paid to adoptive parents will be determined by an assessment of their means. This will take account of the adopters’ income and resources (excluding their home), reasonable outgoings and commitments, and the financial needs and resources of the child”. This complies with Regulation 15 which states that the Council must take account of the child’s financial needs and resources when calculating the amount of adoption allowance payable.
- The Manual also states that financial support will end where a child qualifies for income support or jobseeker’s allowance in their own right. This complies with Regulation 11.
- The Adoption Support Services Regulations 2005 (‘the Regulations’) do not specifically state that financial support will end where the young person is in receipt of ESA. However, they do state that support will end if the young person qualifies for income support or jobseeker’s allowance.
- At the age of 18 a young person ceases to be eligible for child benefit and can apply for income support or ESA. So, although the Regulations do not specifically cover the treatment of ESA in respect of the adopted child, as this benefit replaced child benefit for C and is an alternative benefit to income support, I find no grounds to criticise the Council’s decision to take it into account in calculating Mr and Mrs B’s entitlement to adoption allowance.
The Council’s handling of Mr and Mrs B’s complaint
- Stage 1 of the statutory complaints procedure should be completed within 10 working days of receipt of the complaint unless the complaint is complex in which case 20 days is allowed.
- The Council received Mr and Mrs B’s complaint on 13 September 2019. On 16 September 2019 it wrote to Mr and Mrs B confirming a date for response of 11 October 2019. The Council says this was 20 working days because of the complexities of the investigation. The response was issued on 11 October 2019. Stage 1 was therefore completed within timescales.
- The Council has 25 working days (which can be extended to 65) to complete stage 2 of the statutory complaints procedure.
- The Council has explained it received Mr and Mrs B’s request for stage 2 on 16 October 2019. On 25 October 2019 an officer telephoned Mr and Mrs B to discuss their reasons for wanting to proceed to stage 2 in more detail. Having received no answer, the officer sent an email requesting further information. The Council received no response and so began the process for recruiting an IO and IP. It wrote to Mr and Mrs B on 29 October 2019 confirming this.
- On 8 November 2019 the Council wrote to Mr and Mrs B confirming an IO and an IP had been recruited. The letter explained they needed to agree a statement of complaint with the IO. Mr and Mrs B requested a delay because of family problems. A meeting was then arranged for 10 December 2019 but, as nowhere suitable could be found to meet, it was delayed until 17 December 2019.
- On 8 January 2020 Mr B contacted the IO saying he wanted to alter the statement of complaint. The agreed statement of complaint was received by the Council on 23 January 2020. The investigation then began.
- The Council received the IO’s report on 14 April 2020 but accepts there were delays in considering this and responding to Mr and Mrs B because of COVID-19. The adjudication reports were finally sent to Mr and Mrs B on 3 August 2020. It has apologised for any distress caused by this but says Mr and Mrs B were kept informed of the delays and updated regularly.
- I will not pursue this issue further because I have found no fault in relation to the substantive complaint.
- I do not uphold Mr and Mrs B’s complaint.
- I have completed my investigation on the basis I am satisfied with the Council’s actions.
Investigator's decision on behalf of the Ombudsman