Summary: Mrs and Mrs X complained the Council unfairly reduced their adoption support payments after their eldest adopted child moved out and was accommodated by a neighbouring local authority. They also complained the Council has failed to provide them with respite care. There was no fault in how the Council decided to reduce their support payments. There was fault with its respite provision as it has not offered them respite in line with an agreed adoption support package. It will apologise, pay them £200 to acknowledge the frustration and uncertainty caused and confirm how it will provide this service going forward.

The complaint

1. Mrs and Mrs X complained the Council unfairly reduced their adoption support payments after their eldest adopted child moved out of the family home and became accommodated by a neighbouring local authority. They said this was in breach of an adoption support package agreed in 2015. They also complained the Council has failed to provide them with respite care since January 2020. They say the Council’s actions have caused them financial loss and distress. They want the Council to apologise, reinstate the previous level of financial support and provide them with respite care.

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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)
4. 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

5. I read Mr and Mrs X’s complaint and spoke with Mr X about it.
6. I made enquiries of the Council and considered information it sent me. I also considered information provided by Mr X.
7. Mr and Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments received before making a final decision.

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What I found

Duty to provide accommodation

8. Under section 20 of the Children Act 1989, councils have a duty to provide accommodation to any child in need within their area who appears to them to require accommodation as a result of:
• there being no person who has parental responsibility for them;
• the child being lost or abandoned; or
• the person who has been caring for them being prevented (whether or not permanently, and for whatever reason) from providing them with suitable accommodation or care.

What happened

9. In 2014, Mr and Mrs X were foster carers for four children. In 2015, the Council asked Mr and Mrs X if they would adopt the children. Mr and Mrs X said they would do this, if the Council agreed to provide an adoption support package until the children turned 18. The Council and Mr and Mrs X agreed the terms of this arrangement and Mr and Mrs X adopted the four children.
10. The Council says a copy of the agreement would have been signed by both parties at the time, but neither Mr and Mrs X nor the Council have been able to provide me with a signed copy. The Council and Mr and Mrs X have both provided me with an unsigned copy of the terms of the agreement.
11. The agreement says:
• The Council will pay a weekly salary reimbursement payment. This would decrease by 25% as each child reached 18 years of age.
• The Council will pay an age-related allowance for each child until they turn 18.
• Should there be a disruption of one child’s placement, then the fee would reduce by 25%, should two children’s placement disrupt then the criteria for additional payment would need to be revisited to see if the placement still met the requirements.
• Mr and Mrs X will be offered one weekend’s respite care every four to six weeks and one week’s respite per year to support the placement, if this is in the children and carers’ interest.
12. The Council began paying Mr and Mrs X financial support in line with the agreement in 2015 and this arrangement continued until 2020.
13. In November 2020, Mr and Mrs X’s eldest adopted child, child A, was unable to remain living with Mr and Mrs X. A neighbouring council, council B, agreed to accommodate child A under section 20 of the Children Act 1989. Mr and Mrs X agreed with this plan and child A moved into council B’s care.
14. In January 2021, child A remained in council B’s care. The Council reviewed the financial support arrangement and wrote to Mr and Mrs X. It said:
• it understood there were currently no plans for child A to return to their care;
• it had reviewed the financial agreement and, as child A had not been in their care since November 2020, ongoing support payments would reduce;
• Mr and Mrs X would need to reimburse the Council for overpayments already made; and
• They would no longer receive payments for birthday and holiday allowances for the children, as this had not been part of the post adoption support plan.

It set out its calculations and asked them to contact the Council to discuss the overpayment and options for repayment.

15. Mr and Mrs X were unhappy with this decision. They contacted the Council but the Council did not change its position. The reduced payments started from April 2021. Mr and Mrs X complained to the Council.
16. The Council responded and said:
• Child A was now being accommodated by council B and there were no immediate plans for them to return home. It was in line with the agreement and appropriate that the Council’s support payments should be reduced;
• Should child A return home at any point, the Council would review the arrangements;
• As a gesture of goodwill, the Council would not seek to recover overpayments already made.
17. Mr and Mrs X remained unhappy but the Council did not change its position. They brought their complaint to us in July 2021. They told us that as well as being unhappy with the Council’s decision to reduce the financial support, the Council had failed to offer them respite in line with the terms of the agreement.
18. In its response to our enquiries, the Council told us it had reduced the financial support in line with the adoption support agreement. It said Mr and Mrs X had received respite care in January 2020 and two weekends in August 2020. It said the agreement stated that any respite care provided would need to be in the best interests of the children and carers. It said its respite provision had been severely disrupted by national restrictions during the COVID-19 pandemic and it had not been able to offer respite as set out in the agreement.
19. Mr and Mrs X told us they had received some respite since January 2020 but much less that that specified in the agreement and the Council had put barriers in place making this more difficult to achieve.

Analysis

20. The Council and Mr and Mrs X have been unable to provide me with a signed copy of the post-adoption support agreement. However, it is not our role to make a finding on the legality of the support agreement in the way a court could. We investigate complaints about “maladministration” or “service failure”. If Mr and Mrs X wish to contest the legality of the agreement it is open for them to take their case to the courts.
21. The Council has been making the agreed payments and Mr and Mrs X have accepted these since 2015. I have also seen no evidence they told the Council they were unhappy with the arrangement before January 2021. Because of this, I consider the agreement to be valid for the purpose of this investigation. I have considered how the Council reached its decision to reduce the support payments and whether their consideration of this matter amounts to maladministration.
22. The Council reviewed the terms of the arrangement in January 2021. Child A was no longer living with Mr and Mrs X and was being accommodated and cared for by council B. It considered this a disruption of the placement. The terms of the agreement say “should there be a disruption of one child’s placement, then the fee would reduce by 25%”. It reduced the reduced the salary reimbursement payment by 25% and removed child A’s individual allowance. Mr and Mrs X disagree that the “fee” includes the salary reimbursement payment, but this is a question of interpretation which would need to be decided by a court. I cannot say the Council’s interpretation is wrong. The Council considered the situation as we would expect and reached its decision. The Council was not fault.
23. The Council also decided to remove annual payments for birthdays and holidays. These payments are not included in the terms of the agreement and I have seen no other evidence the Council agreed to make these payments until the children were 18. The Council is entitled to review its financial decisions and appropriately considered whether it had agreed to make these payments to Mr and Mrs X. It considered it had not done so, and so decided that they should stop. There is no fault in how the Council reached this decision so I cannot question the decision made.
24. The Council says it did provide some respite care for Mr and Mr X in January and August 2020, but respite arrangements have been severely disrupted by the COVID-19 pandemic. It is reasonable that restrictions caused by the COVID-19 pandemic will have impacted on the Council’s ability to arrange respite care since national restrictions were introduced in March 2020. However, I have seen no evidence the Council:
• Discussed with Mr and Mrs X what, if any, respite care it was able to offer Mr and Mrs X from March 2020 onwards or what was in their or the children’s interests;
• Considered what impact the lack of respite care might have on the family;
• Considered whether it could offer any alternative arrangements during this time to reduce any negative impact.
25. Had the Council offered Mr and Mrs X respite care in line with agreement during this time, I cannot know whether they would have accepted it. However, the lack of records leads to uncertainty as to how the Council reached its decision that it could not offer respite, and whether it considered the impact of this decision on Mr and Mrs X and their family. This is fault, which has caused Mr and Mrs X frustration and uncertainty. In addition, Mr and Mrs X say the Council is still putting barriers in place to respite provision and the problem is ongoing.

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Agreed action

26. Within one month of the final decision the Council will:
• Write to Mr and Mrs X to apologise for failing to offer respite care in line with the agreement since January 2020 or to consider whether it could offer any suitable alternative. It should also set out how it intends to meet its obligation to offer respite in line with the agreement going forward;
• Pay them £200 as an acknowledgement of the uncertainty and distress caused by these failings.

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Final decision

27. I have completed my investigation. The Council was at fault and the Council has agreed action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman