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Milton Keynes Council (20 011 080)

Category : Children's care services > Adoption

Decision : Upheld

Decision date : 30 Jun 2021

The Ombudsman's final decision:

Summary: The Ombudsman finds fault with how the Council managed the complainant’s assessment for adoption allowance payments. The Ombudsman also finds fault with the Council for failing to advise the complainant of his appeal rights. This caused uncertainty and distress to the complainant. The Council has agreed to provide a financial remedy to the complainant and reinstate the support until a new assessment is completed.

The complaint

  1. Mr X complains the Council has removed financial support for two of his adopted children without clear reason.
  2. Mr X also complains the Council did not include him or his wife in the decision to remove this financial support.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  4. 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

  1. I considered Mr X’s complaint and additional documents provided by him. I also considered information provided by the Council. I considered comments from Mr X and the Council on my draft decision.
  2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Adoption allowance

  1. 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 aim is the adoption of a child or continuing adoption arrangements should not be prevented because of lack of financial support.
  2. 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.
  3. An additional adoption allowance payment may be agreed to meet a specific need for a specific period of time. Councils are also able to agree exceptional payment which may be necessary in exceptional circumstances. The payment of an Adoption Allowance is discretionary and based is subject to assessment and based on the individual needs of the child. Such allowances are means tested.

What happened

  1. Mr and Mrs X adopted three children, Child A, Child B and Child C. All three children were siblings of each other but came to live with Mr and Mrs X at different times.
  2. When Mr and Mrs X adopted each child, the Council created an adoption plan. This documented each child’s present needs and what support Mr and Mrs X were likely to need for each child.
  3. The adoption plan and agreement says that Mr and Mrs X would receive a financial assessment every year to ensure they were receiving the right financial support.
  4. Mr X says the financial support assessments have been taking place, but he has never received a copy of the assessments.
  5. Mr and Mrs X have had the children in their care for over 14 years.
  6. In July 2020 the Council carried out its annual financial assessment of Mr and Mrs X.
  7. The Council decided to remove some of the financial support provided to Mr and Mrs X for Child B and Child C.
  8. Mr X complained the Council had wrongly removed the support, and it had not included him and his wife in the decision to remove the support.
  9. The Council apologised to Mr X for its wording on the letter about the decision to remove some of the financial support and how he could make representations if he disagreed. It agreed it would change the wording in the future. It did not agree to reinstate the financial support.
  10. Mr X remained unhappy with the Council’s response and complained to the Ombudsman.

Analysis

  1. I have reviewed the calculations from the Council’s financial assessment of Mr and Mrs X for both Child B and Child C. I have also reviewed the needs assessment completed as part of the financial assessment.
  2. I have also reviewed the Council’s guidance on adoption support.
  3. Before the Council’s financial assessment in 2020, Mr and Mrs X were receiving sibling enhancement payments as part of their financial support package. This amounted to 30% of the allowance.
  4. The Council’s guidance on adoption payments says “The payment of an Adoption Allowance is discretionary is subject to assessment and based on the individual needs of the child. Such allowances are means tested”.
  5. The decision to first award Mr and Mrs X sibling enhancement payments was a discretionary decision by the Council. I have seen no evidence the Council explained to Mr X that he was receiving a discretionary payment and this could be removed.
  6. The Council completed a financial assessment and an assessment of need to make the decision. The Council guidance for discretionary payments says “a short term allowance may be agreed to meet a specific need for a specific period of time”. Although Mr and Mrs X received the payments over a longer period of time, the Council was entitled to make the decision to remove the discretionary payments.
  7. The Council’s assessment documented how the family had previously benefited from the additional payments. However, it now felt Child B and Child C were eligible for Disability Living Allowance (DLA) or Personal Independence Payments (PIP) payments due to their additional needs. In its assessment, the Council said this would provide the funds to be able to meet the children’s additional needs and the sibling enhancement was no longer needed. However, the Council did not provide Mr and Mrs X with a copy of the assessment and I have not seen any evidence it explained this reasoning for withdrawing some of the financial support.
  8. The Council documented the additional payments had previously helped Mrs X remain out of work to provide a high level of support for the children. It is my current view that if the Council was going to remove the additional payments and recommend the family apply for DLA or PIP for Child B and Child C, it should have also explained to Mrs X that she should explore applying for Carers Allowance for herself.
  9. I have reviewed the communication between the Council and Mr X. The Council told Mr X in its decision letter that he had 28 days to make representations if he did not agree with the decision. However, the Council policy says that “If the Local Authority Designated panel declines a request for payment or if the local authority proposes, as a result of the review, to reduce or terminate financial support or revise the plan, before making that decision the local authority must give the adopter an opportunity to make representations”. It is my current view the Council’s communication with Mr X was not clear. The communication suggested the decision had already been made before contacting Mr X, and suggesting representations could be made after the decision was made.
  10. It is my current view the communication from the Council was not satisfactory and did not make it clear to Mr X why it had made the decision, or give him the opportunity to contribute before a decision was made. It is uncertain what the decision would have been if Mr and Mrs X had been given the appropriate opportunity to contribute. Although the Council recognised its wording on the letter was unclear and changed it for future use, it did not address the injustice caused to Mr X. This was fault by the Council and resulted in distress and uncertainty to Mr and Mrs X.
  11. The Council’s policy also says that decisions can be appealed through the complaints process. Although Mr X did complain, I have not seen evidence the Council told Mr X of his right to appeal the decision.
  12. The Council has said it does not provide copies of its assessments to those being assessed as the calculations may cause confusion, but that it does write to adoptive parents/guardians with the outcome. I understand the Council’s reasoning for not sending copies of the full assessment, however it is my view the Council did not communicate its reasoning for withdrawing some of the financial support. The notification letter and complaint correspondence does not discuss that a crucial reason for withdrawing support was the Council felt both Child B and Child C would be eligible for DLA and PIP. Had the Council communicated this, it would have clarified the situation for the family and potentially eased some of their distress.

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Agreed action

  1. Within four weeks of my final decision, the Council has agreed to
  • Write to Mr and Mrs X and apologise for the poor communication about its decision to remove part of the financial support. It will also pay Mr and Mrs X £300 to recognise the distress caused by this.
  • Carry out a new adoption allowance assessment for Mr and Mrs X and ensure their contribution is sought before the decision is made.
  • Reinstate the previous financial support until the Council carries out a new assessment.
  1. Within 12 weeks of my final decision the Council should
  • Review how it communicates with guardians of adopted children who are receiving discretionary payments, and make it clearer to them when payments may be withdrawn.
  • Review how it includes guardians of adopted children in the financial reassessment process and how it communicates with them about the decisions being made.
  • Review how it communicates with guardians of adopted children about their appeal rights for financial decisions.
  • Remind all staff about the right to an appeal for financial assessments.

The Council has agreed to provide the Ombudsman with evidence to confirm it has carried out the remedies.

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Final decision

  1. I have now completed my investigation. I find fault with the Council for how it managed the assessment for adoption allowance payments. I also find fault with the Council for failing to inform Mr X of his appeal rights.

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Parts of the complaint that I did not investigate

  1. I did not investigate the part of Mr X’s complaint about the Council not making historical payments for Child A. This is because this matter happened longer than 12 months ago.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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