Summary: The Council was not at fault in how it decided Mr X’s adoption allowance. Although it departed from recommendations originally made by the government – which are widely used by other councils – it has provided a reasonable explanation for doing so.

The complaint

1. The complainant, whom I refer to as Mr X, is an adoptive father. He is in receipt of both universal credit and child benefit. He also gets an adoption allowance from the Council.
2. Mr X complains that the Council has reduced his adoption allowance by the amount he receives in child benefit. He says government guidance says this should not have happened, because he receives universal credit. He refers to a recent Ombudsman decision which, he says, supports his complaint.
3. Mr X says he wants an increased (and backdated) adoption allowance.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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

5. I considered information from Mr X, the Council and the Department for Education (DfE). I also considered relevant government guidance.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Council’s responsibilities

7. In 2013, the government issued statutory guidance to councils on how to support adoptive parents and children. Councils must comply with the guidance unless there are exceptional reasons which justify not doing so.
8. The guidance said that, when deciding the level of an adoption allowance, a council should have regard to the amount of fostering allowance it would have paid if the child were fostered instead.
9. The council must also take into account other benefits the adopter receives. An adoption allowance must not duplicate financial support available through the state benefits system.
10. In 2005, the government also issued a means test model to assist councils to work out adoption and special guardianship allowances. This model was non-statutory, but it made recommendations to achieve a fair and consistent approach by councils.
11. The model recommended that, when a special guardian or adopter was receiving income support (which has since been replaced by universal credit), councils should pay them the maximum allowance without assessing their income and without making any deduction for child benefit.
12. The Council’s policy on adoption allowances says it pays allowances at its fostering allowance rate, minus the current rate of child benefit. It does this because adopters can claim child benefit whereas foster carers cannot.

What happened

13. Until 2022, the Council’s policy was, at least partly, aligned with the government’s recommended means test model. It did not deduct the rate of child benefit from an adoption allowance if the adopter was in receipt of universal credit.
14. Despite this, and although he received universal credit, the Council deducted child benefit from Mr X’s allowance between 2019 and 2022. It subsequently accepted that it should not have done so, and it refunded him the difference.
15. In 2022, the Council changed its policy to the one it has today. It has deducted child benefit from Mr X’s allowance ever since.
16. Mr X complained to the Council about this in 2023. It responded, saying:
• The government means test could be used as a financial assessment tool, but there was no obligation on councils to use it.
• The Council’s change in policy in 2022 reflected that adopters could claim child benefit, but foster carers could not.
• Consequently, it would continue to deduct child benefit from his allowance.
17. Mr X did not describe any exceptional circumstances which would have justified the Council departing from its policy.
18. In early 2024, the Ombudsman issued a public report into a complaint against Devon County Council (case reference 23 000 973). We found that the council was at fault for operating a ‘blanket’ child benefit deduction policy. We made clear that councils should consider cases individually and give good reasons for departing from the government’s recommended means test model.
19. Mr X then complained to us, referring to our recent report.
20. I made enquiries of the DfE about its means test model. It confirmed that the model is now out of date. It has not been updated since 2005 and is no longer supported or promoted by the government. However, it remains available for councils to use voluntarily if they wish.

My findings

21. Councils must have regard to relevant government guidance, and, if they depart from that guidance, they must give good reasons for doing so.
22. Although the DfE has explained that it no longer promotes or supports the means test model, this does not necessarily mean it is no longer a relevant document. As it is widely used by other councils, it is not unreasonable for us to expect a council to be aware of it and to consider it when developing policies on special guardianship and adoption allowances.
23. Nonetheless, as the model is out of date, I would not criticise a council for departing from it, as long as it provides a reasonable explanation.
24. In Mr X’s case, the Council previously (at least partly) used the approach recommended in the model towards adopters in receipt of universal credit. But, in 2022, it changed its mind. It has explained why.
25. This explanation does not appear unreasonable. Nor is it obviously at odds with the requirements of the statutory guidance.
26. For these reasons, I have found no fault with the Council. It was entitled to take the approach it did, and it appears that it has properly applied its policy in deciding Mr X’s allowance since 2022.

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Final decision

27. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman