Guidance on Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007

PART III: ADOPTION ALLOWANCES

Adoption Allowances

These are largely covered in Part 3 of the Adoption Support Services and Allowances (Scotland) Regulations 2009. Each local authority is required to prepare an adoption allowances scheme in line with the legislation and regulations stemming from the 2007 Act by 28 ^th December 2009. The main areas covered by regulations are

• circumstances in which allowances may be paid
• financial assessment
• remuneration for former foster carers and kinship carers
• notification of decision and conditions for payment
• review and termination.

Circumstances in which allowances may be paid

Regulation 10 covers two aspects - the types of allowances that may be paid and the circumstances in which an allowance may be paid. It makes it clear from the outset that allowances may be agreed either as part of supporting and enabling the placement of a child or to support the continuation of an adoption after the order is made. This opens the prospect of an assessment for an adoption allowance to adopters where the need only emerges well after the point when the child was placed. Another aspect of the application of regulation 4 on Adoption Support Plans for persons outside the area is that some families who do not live in the local authority area of their child's placing authority may return for support when they have encountered a change of circumstances. There should be dialogue between the home authority and the placing authority about completing an assessment where there is an indication that initially one authority would hold financial responsibility with the second authority taking over after an agreed period.

The financial support considered under regulation 10 includes

• an ongoing adoption allowance in one of the circumstances in regulation 10(2)a-c
• an allowance for the specific purpose of meeting costs incurred in travel for contact
• defined initial costs prior to the completion of the adoption - legal costs; costs relating to the introduction of the child to the family; a 'settling in' grant for furniture, equipment and other necessary items for the child.

Clearly, the area that will be of most concern to agencies is the ongoing provision of adoption allowances as in regulation 10(2)a-c. There is a combination here of specific criteria and more general wording. The specific criteria are firstly the familiar ones of recognising that extra efforts should be taken on behalf of children for whom it is more difficult to find a family because of age or the need for an appropriate ethnic match and also the need to maintain important relationships for the child by placing him/her with a sibling or other child s/he has lived with. The next group are those children who have special care needs. The wording of this has widened in recognition that many children placed do not have diagnosed medical needs or disabilities but have 'emotional or behavioural difficulties or the continuing consequences of past abuse or neglect'. There is also a general criteria that an allowance may be payable 'where it is necessary to ensure that the adoptive parent can look after the adoptive child'. This is where local authorities have discretion to consider circumstances where there is acknowledged stress caused by the adoption and where one support option is some financial support, perhaps to obtain outlets for the child; enable a parent to extend their time at home with a child without a financial burden or for adopters to access their own supports. The possibility of an adoption allowance should be included as part of the wider assessment for an Adoption Support Plan.

Financial assessment

Regulation 13 clarifies when a financial assessment is required. In all situations, the adoption agency is required to take account of any other grant, benefit or allowance available as a result of the adoption of the child. Beyond that, a more extensive assessment is required except in the following circumstances

1) where the allowance is for reasonable legal costs, including court fees, or for costs incurred during introductions, the agency must disregard the other factors of the financial assessment

2) where the allowance is in respect of a settling in grant, ongoing costs to facilitate contact or for the special care or special arrangements under regulation 10(2)(b) or (c) in relation to an adoptive child they may disregard those factors.

This could provide considerable flexibility to agencies to use allowances positively and exercise discretion, but at the same time will require them to be clear about when they might exercise their discretion and the reasons for their decisions. This includes being able to say that an allowance will be payable to support the placement of a particular child regardless of the assessment under regulation 13(3). Not all adopters would wish to receive an adoption allowance - even if potentially eligible. This would be an area to cover during the assessment, along with the option of returning at a later date if their circumstances change and new needs emerge.

The circumstances in regulation 10(2)(a) are where it is clear that the full financial assessment is required and lays out three factors to consider - the adopter's income, outgoings and the financial needs of the child. The experience of the existing schemes is that an assessment within these criteria can bring very different results depending on areas such as benchmarking, the different outgoings taken into account and 'personal allowances'. Already this causes confusion for adopters who may be linked with a child from another agency with different criteria for allowances from their assessing agency. The provision for changing responsibility from placing authority to 'home' authority, if these are different after three years, will increase this.

Remuneration for former foster carers and kinship carers

When adoption allowances were first introduced, one of the major groups that was highlighted were foster carers who were appropriately offering to care for children on a permanent basis and where strong attachments had been formed. A barrier to the completion of adoption was the potential loss of income from fostering, although foster carers recognised that adoption would be the best option for a child in their care. Initially a number of foster carers did go ahead to adopt when allowances became payable. The situation moved on with the growth of the payment of fees to foster carers and this reward element was specifically excluded from adoption allowances. Regulation 11 now provides for the continuation of the reward element for existing foster carers for two years and in exceptional circumstances beyond this. This regulation also includes kinship carers although in practice allowances paid to kinship carers normally would not include a fee element and so this would not apply. Where children are placed on a fostering basis with approved adopters as a legal route to adoption they would also not normally receive a fee over and above the fostering allowance, so again they would not be included in this provision.

In each situation there will need to be consideration of the circumstances of the foster carer who is offering adoption once that becomes the agency plan for the child. Some foster carers who adopt a particular child may also continue fostering other children and their fostering fee may continue. This regulation is aimed at offering the option of adoption of children by their foster carers where this would mean that the carers would lose a significant part of their family income and in order to meet the ongoing needs of the child/ren they could not immediately replace it by other means. Examples would be the adoption of a sibling group which precluded the placement of any further children; the need for a particular child to have a period on their own to establish their place in the family before the carer could consider other foster placements or a child who needed a full time home based carer for a considerable period of time before the carer could consider alternative employment.

In each case where adoption by an existing foster carer is the proposed plan and the carer is in receipt of remuneration over and above fostering allowances there should be an assessment of the impact of this on the achievement of the plan agreed as in the best interests of the child. Regulation 13(5)(b) makes it clear that it is not necessary to carry out a full financial assessment of the factors on regulation 13(3). Advice should be sought first of all about any other grants, benefits or allowances that the foster carers would be entitled to if they adopted the child. Consideration should be given at the outset to the assumption that the remuneration element will cease after two years and a plan made about how the family will use that period to restructure their finances so that they can continue to support the child. There are likely to be various options, including a resumption of fostering and the eligibility for a fostering fee again or a change to another form of employment when it is possible to do this. It should be clear that while an adoption allowance without a remuneration element can continue long-term, the fee element will stop when the adopter's circumstances no longer require it and will not automatically continue for two years. Continuation beyond two years would depend on information about exceptional circumstances that delayed the proposed plans for restructuring finances and should be time limited and subject to review. This may be because of unforeseen additional needs of the child that prevented the return of the adopters to fostering or other employment, if that was the plan or a significant change in the adopters circumstances that had a similar effect.

Notification of decision

The notice of a proposal to pay an adoption allowance and the notification of the decision are included in the wider regulations 8 and 9 in relation to Adoption Support Plans (see guidance on Notification of a decision under regulations 8 and 9). At the proposal stage the local authority must ensure that the adopters have information about the basis upon which an adoption allowance is determined, the amount payable and the conditions to which they must agree and which are laid out in regulation 15. These apply to allowances which are paid periodically or by instalments and include the information which they must provide to the adoption agency about identified changes in circumstances and an annual statement in a form defined by the agency about their financial circumstances, the needs and any other resources for the child and confirmation that the child is still living with them.

Agencies should ensure that the written information they provide about their adoption allowances scheme includes not only the details of eligibility and the nature of the financial assessment but also the circumstances in which it ceases to be payable and the agreement they enter into with the agency about the conditions in regulation 15 and the consequences if they do not comply with these.

Once the agreed time has been allowed for representations on the proposal the adopters should be notified of the decision. The emphasis in these regulations is on giving adopters time to make representations in relation to the proposed adoption allowances and the prospect of an appeal may be restricted to situations where there is extra information that the adopters wish to be taken into consideration or where the reasons for the decision are unclear. The agency legal adviser should ensure that the format for notification complies with all the requirements of regulations 9, 14, 15 and 16 and that there is provision for the agreement to be signed by both a representative of the agency and the adopters.

Review and termination

In considering their arrangements for review the agency should consider and discuss with the adopters both the particular financial updates required in writing and where these should be sent and also any other review arrangements that would be helpful to the adoptive family in thinking of an overall Adoption Support Plan. Some families may welcome the aspect of financial support but at least initially be happy to retain independence from any other support. An administrative or financial review process might feel adequate or more comfortable and the priority is its efficiency. At the same time, as needs change they may need to be reassured about the response they would meet if they wished further support. Regulation 15(4)(a) makes provision for a reminder if an annual statement has not been received from the adopters. Good practice would indicate that the agency should be proactive in contacting adopters in receipt of allowances with news and information about the agency's developing Adoption Support Plans, any changes in what is offered and in so doing set a tone that eases the way for any adopters who need further support. Agency procedures should be clear about where this originates; who sends it out and who monitors both the allowances and the adoption support plans.

Particular attention should be paid to the time when a young person is approaching the age of 16. While adoption allowances can continue until age 18, and beyond if the young person is in full time employment, some of the other conditions in regulation 14 may apply earlier. This is also an area which may change in relation to changes in benefits and other provision for young people. Adopters may need guidance so that they do not unwittingly run into problems. Times of transition also frequently cause extra challenges for vulnerable young people and their parents so this is also a time when some extra advice and support may be welcome.

In all instances where there may be differences in views between the agency and the adopters, whether this is about the original plan, a reassessment, a variation following a review or the point of termination, the written information to the adopters needs to state clearly

• whether at a particular stage there is scope for making representations, if so how and within what timescale
• once a decision is made what options there are, if any, for seeking immediate reconsideration of the decision
• how a particular decision was reached
• future options in the event of a change of circumstances.

Agency procedures need to demonstrate a balance between an open process that enables the adopters' views to be fully considered and the need for the agency to make clear, fair and well reasoned decisions without undue delay.