Summary: the Council’s policy of capping adoption allowance at two thirds of core fostering allowance does not appear to reflect statutory guidance. The Council has followed this policy for at least ten years and was unable to explain now why it decided not follow the guidance. This is fault. However, the Council has decided to review the policy.

The complaint

1. Ms M complains about the amount of adoption allowance paid by the Council. She says she receives less than half the money she received as a foster carer. She says the payments are not enough to meet the needs of her daughter, G.

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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)

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How I considered this complaint

4. I have considered:
• information provided by Ms M;
• information provided by the Council, including its response to her complaint at all three stages of its complaints process.
5. I invited Ms M and the Council to comment on my draft decision.

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What I found

6. Ms M fostered G from birth. She adopted her in 2018.
7. The Council paid an amount equivalent to Ms M’s fostering allowance for two years following the adoption and then ended Ms M’s financial support. Ms M complained.
8. The Council responded to Ms M’s complaint at all three stages of the complaints process. The Council apologised for ending the payments without sufficient warning. It corrected mistakes in previous payments where child benefit had incorrectly been deducted from Ms M’s payments. It re-assessed her needs and agreed to pay the maximum adoption allowance under its policy. The Council’s Financial Assessment Guidance Notes for adoption say adoption allowance rates are based approximately on two thirds of the Fostering Service Boarded Out allowance.
9. Ms M complains the adoption allowance is less than half she received as a foster carer and is not enough to pay for G’s activities. She explained that G has foetal alcohol syndrome and needs constant supervision and activities, such as swimming, to keep her occupied. The Council says Ms M is receiving the maximum support under its policy.
10. Unhappy with the Council’s response, Ms M complained to the Ombudsman.

Adoption allowance

11. Councils may pay adoption allowance if financial support is necessary to ensure the adoptive parent can look after the child. This may be because the child needs special care because of illness, disability, emotional or behavioural difficulties, or the continuing consequences of past abuse or neglect.
12. The Government has issued Regulations and Guidance which Councils must follow when paying adoption allowance.
13. The Guidance says that adoption allowance should complement and not duplicate financial support available through the benefits and tax credits system. The Regulations say the Council must take benefits into account when deciding how much adoption allowance to pay. Adoption allowance is means-tested.
14. The Guidance says councils should have regard to the amount of fostering allowance that would be payable if the child were fostered when determining the amount of adoption allowance. This is the ‘core’ fostering allowance, plus any enhancements appropriate to the needs of the individual child, but not the element of remuneration. (Statutory Guidance on Adoption, Department for Education, 2013, paragraph 9.33)
15. Where the adoptive parent previously fostered the child, the council may continue to pay the element of remuneration they received as a foster carer for two years from the date of the adoption. This is to give the family time to adjust to their new circumstances.

Consideration

16. The Council paid Ms M an amount equivalent to her full fostering allowance, including remuneration, for two years after she adopted G. This is in line with the Regulations and Guidance.
17. Ms M complained when the payments ended. I am satisfied the Council responded appropriately to her complaint. The Council undertook an assessment and a financial means-test and agreed to pay the maximum amount possible under its adoption allowance policy.
18. Ms M says this is half the amount she received as a foster carer. She is unhappy with the payments.
19. The Council’s policy says the payment is based approximately on two thirds of the Fostering Service Boarded Out allowance.
20. The Council pays Ms M £97.95 adoption allowance per week.
21. If G was in foster care, the Council says it would pay a ‘core’ allowance of £159.85 per week (to cover the cost of caring for G) and an additional £209.12 as remuneration (this is a tier 2 payment to reflect G’s additional needs).
22. The adoption allowance the Council pays (£97.95) is 61% of the core fostering allowance (£159.85) the Council would pay for G.
23. The Council accepts Ms M needs financial support to care for G and has agreed to pay at the maximum rate permitted by its policy. The question, then, is why the Council capped the maximum adoption allowance at (less than) two thirds of the fostering allowance since this does not appear to reflect government guidance.
24. I asked the Council why it capped adoption allowance at approximately two thirds of core fostering allowance. I wanted to know how the Council had taken account of the statutory guidance and, if it had decided to depart from the guidance, the reasons why.
25. The Council conducted extensive searches, but was unable to find records of the decision. All it could say was that it had been the Council’s practice for a number of years (since before 2013) to set the maximum adoption support allowance at two thirds of the core fostering allowance.  The Council said it was currently undertaking a review of the practice.
26. The Council responded positively and in good faith to my enquiries. However, it has not been able to demonstrate how it had regard to fostering allowance rates when setting its adoption allowance, or explain why it appears to have departed from the statutory guidance.
27. The Council’s inability to provide the reasons for its decisions, even though they were taken a decade ago, is fault. The Council is reviewing the policy, however, and that is a suitable remedy. If the Council changes the policy and increases the payments, I recommend it reconsiders Ms M’s payments from the date of her complaint.
28. When reviewing the policy, I recommend the Council sets out how it will take account of any other support or benefits adoptive parents receive to ensure the calculations are clear and transparent.
29. The statutory guidance says the Council must ‘have regard’ to the core fostering allowance when setting its adoption allowance rates. I cannot say the Council must make the maximum adoption allowance the same as the core fostering allowance. This is a decision for the Council and, ultimately, the Courts.
30. A different allowance, Special Guardianship Order Allowance, is subject to similar regulations and statutory guidance. Like adoption allowance, it must be based on core fostering allowance. I am not aware of a single case in which the Courts have accepted maximum payments for this allowance based on a proportion of fostering allowance.
31. The Council may choose to take its own legal advice when reviewing its policy.

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Agreed action

32. The Council’s policy of capping its adoption allowance at two thirds of core fostering allowance does not appear to reflect the statutory guidance. The Council has followed this policy for at least ten years and was unable to explain now why it decided not follow the guidance. This is fault. However, the Council has decided to review the policy. This is an appropriate remedy. Within one month of my final decision, I recommended the Council set out a timetable for the review and send a copy to Ms M and the Ombudsman.
33. If, following the review, the Council changes its policy and increases the payments, I recommended it reconsiders Ms M’s payments from the date of her complaint.
34. The Council accepted my recommendations.

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Final decision

35. I have completed my investigation as the Council accepts my recommendations.

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Investigator's decision on behalf of the Ombudsman