Regulation 4
Question 7: Is the approach suggested, to provide for allowances in circumstances where there are unusual costs, correct?
Almost all respondents were generally satisfied with the circumstances for provision of allowances set out in Regulation 4. However, concerns around what 'unusual costs' included were raised. However, three respondents disagreed with this regulation, and felt that the approach was not correct.
One respondent was concerned about the negative approach of the regulations and the unnecessary complexities of the system.
It was indicated that the regulations pertaining to adoption allowances are complex. At present, each local authority may have different adoption allowance schemes and this may continue under the new regulations. The regulations therefore could be interpreted differently in different parts of the country. It was stated that this may make it more difficult to place children from one area in another area.
One respondent felt that the regulation seems to focus on one-off costs, while the more usual practice was to make regular payments until the child is an adult. The respondent stated that, "Given the needs of many of the children for whom we would wish an adoptive placement, it is more likely that regular payments will be required."
Respondents indicated that the provision for allowances is correct, and that the child care plan and the security of the child should not be compromised by difficulties in providing appropriate financial supports. This approach provides the flexibility that authorities need when dealing with allowances.
One respondent also commented that, "Regulation 4 should spell out the circumstance where an adoptive mother has to give up work and therefore the need for allowances."
Some respondents indicated that it was unclear what 'costs necessary for accommodating and maintaining the child' refers to. It was assumed that "if accommodating the child refers to a start up grant, does maintaining the child refer to adoption allowances?" Expenditure necessary for the purpose of "accommodating and maintaining the child" was found to be very vague and respondents were not sure what circumstances were being alluded to, other than the examples given, that would not otherwise be covered by an allowance.
It was suggested that the payment of adoption allowances should be the norm rather than the exception given the complexity of needs of the majority of children now being placed for adoption. The approach in regulation, therefore "to provide for allowances in circumstances where there are unusual costs" seemed to "miss the point" that the majority of adoptions will require services which are costly and provision for adopters to buy in services if agencies are unable to provide them needs to be met by adoption allowances.
Respondent who were of the opinion that the approach was not correct, provided the following comments/suggestions:
"Regulation 4(2)(b) needs more clarity since the greater expenditure of resources can be interpreted literally and rigidly in the light of individual assessor or line manager's view of what should be spent and why. The individual's own value base or their approach to their own money can have a profound effect on how this 'greater expenditure of resources' is viewed. The concepts of relative or absolute wealth/poverty can play a part but be unspoken and not available for debate."
"The circumstances named in reg 4(2)(a)-(e) could be used to cover all adoptive family situations, particularly the reference in item (b) to "the continuing consequences of past abuse or neglect". However, the regulation is framed so as to create a financial payment system that works on the assumption that the circumstances in reg 4(2) would be exceptional, whereas in fact they are the norm. The majority of adoptive families are living with children whose behaviour demonstrates the "continuing consequences of past abuse or neglect". This can manifest itself in regular and recurring damage to household property and personal items due to tantrums and violent/chaotic behaviour. Therefore, as mentioned above, a National Adoption Allowance Scheme should be developed in recognition of the ongoing costs of adoptive parenting.
The circumstances specified in reg 4(e) (i), (ii) and (iii) are one off payments and should not be confused with adoption allowances. They should be treated separately from adoption allowances. Such payments (legal costs, costs re introductions and settling in payments) should be treated as mandatory payments to be made by the local authority or, at the very least, with an initial assumption that the local authority will fund such expenses, unless it would not be appropriate to do so."
"regulation 4(2)(e)(iii) should include the mention of the need to avoid causing such detriment to an adopter, the adopted child or another member of the family by for example requiring that a family allow their entire garden [or their dining room] to be swallowed up for an extension as this is the cheapest way of making provision for a child with disabilities. The providing council may quote the need to make best use of public money and may be unable to see that they also have a duty to assess the adoption support needs of all members of the adoptive family---in this case to ensure that there is no loss of facility. It can often be better for all concerned for a different property to be purchased rather than all suffer less than ideal circumstances for the long term. Such a provision must be seen as an adoption support need to the child to enable them to be adopted and surely cannot be seen as something that a prospective adopter could be expected to pay for."
"At the end of the day, if the argument is about making best use of public resources then the adoption of a child with extra needs regardless of exceptional expenditure, still remains a far more economic investment for the council."
Respondents felt that the following points should be borne in mind:
The legal costs should not be the responsibility of the adoptive parents, even if legal challenges are being made.
Costs during introductions can be high as adopters may have to travel hundreds of miles to meet children and in some cases find accommodation while introductions take place.
Many families adopt sibling groups and almost overnight have to equip their household to ensure they can care for these children safely. There are likely to be specific costs when adopting children with disabilities.
We have knowledge of adoptive parents who have been told that if they receive finances for 4(e) (i), (ii) & (iii) they cannot be eligible for an adoption allowance. This amounts not only to bad practice but is also a failure to address the ongoing needs of many of today's children being placed for adoption.
The following comments and suggestions were made:
"Regulations 4, 7 and 9 are all effectively about different parts of the process of deciding whether an allowances should be paid, how much this should be and what 'conditions' are attached. The only reference to assessment is in regulation 7(1), whereas much of the process should be about this: assessment of needs; and assessment of resources (or no means testing at all). Following that, the regulations need to cover, conditions about payment and continuing entitlement; processes for review; and possible suspension and termination."
"There should be a clear provision allowing agencies to consider allowances after adoption has been granted. This is implicit in regulation 4(1), but it has always been an issue in practice across the UK."
"Conflation of periodic and one-off payments. We are also concerned about the approach in the regulations, particularly regulations 4 and 6, whereby 'allowances' covers not only allowances provided for in s.71 of the Act, but also payments permitted under ss12 and 73. Generally speaking, allowances are thought of as periodic payments, whereas ss12 and 73 payments would usually be one-off and not repeated payments. The regulations currently applicable to allowances, the Adoption Allowance (Scotland) Regulations 1996, are concerned only with allowances as periodic payments."
"Regulation 4(2)(e) is not necessary and should be deleted. Leaving the provision in will unnecessarily restrict local authorities' discretion to make payments under ss12 and 73. Section 12 has its own provisions about how payments should be made. Section 73 already list types of payments which may be made."
Question 8: Are the circumstances set out in the Regulation sufficiently comprehensive?
All respondents, but one, agreed that the circumstances set out in the regulation were sufficiently comprehensive to cover most situations that may arise. They commented that "this seemed to allow for a full range of circumstances, with discretion about how to implement a scheme." However, one respondent flagged concern regarding this, and commented as follows.
"However, we would want to be sure that the Adoption Allowance Scheme will be limited to circumstances where the Adoption Agency has had a formal role in placing the child for adoption (ie agency placements or kinship care placements supported by the Local Authority) and this could be usefully repeated in the Regulations themselves as well as the Act."
Another respondent made the following comments:
"Most agency adopted children have a wide range of needs. It is not reasonable to assume, as the commentary says, 'that adoptive parents would normally be expected to meet the costs usually associated with bringing up a child taking into account child benefit, tax credits etc but allowances should be available where unusual costs are experienced."
"Use of the word 'unusual' is labelling of children and their problems. The regulations and the policy as a whole should be much more positive in their tone."
"In reg. 4(2), paras (c) and (d) should be deleted as unnecessary. Regulation 4(2)(a) is and should be sufficient to cover all situations when allowances are needed."
"Regulation 4(2)(b) applies to so many agency adopted children that it is not necessary to list it as a circumstance for allowances. And again, it encourages a 'labelling' attitude to children and their problems"
Question 9: Although the intention is not to legislate for a minimum adoption allowance, your comments on how we may approach this in guidance will be very helpful.
A few respondents were particularly concerned that a national minimum adoption allowance is not being introduced as recommended by the Adoption Policy Review. One response stated, "Of more concern was the statement, ' the Scottish Government does not intend to legislate for a national minimum adoption allowance.' This was also seen as a "lost opportunity" by another respondent.
Some of the comments made include:
"As local authorities interpreted previous adoption allowance scheme in significantly different ways, leading to 32 different authorities making decisions in different ways, a national allowance scheme would assist in terms of equity and consistency."
"The need for a robust guidance suggesting a framework for adoption allowances (the amount and circumstances) that would help maintain uniformity across all local authorities in Scotland, appeared repeatedly in the responses. Possibly a "model" allowance scheme could be provided in Guidance."
"Consistency and Uniformity - Support to children being placed and their families should be consistent across Scotland and not dependant on which area the child originates. It was also considered helpful if there was uniformity in the amount of allowance paid and the circumstances in which they are paid."
"National minimum allowances were recommended by APRG, which considered adoption support generally to be essential to help adoption placements.
APRG said at para 6.13; "6.13 The Group recommends that adopters and adopted children should be able to receive financial support up to the child's 18th birthday. Financial support should be available to ensure that any carers that choose to adopt are not financially penalised. The current principles underpinning financial support should be revised and there should be consistency in adoption allowances across Scotland. The Group recommends that adoption allowances should be paid under a national scheme, provided for in regulations. Each local authority agency would be responsible for deciding who was entitled to allowances, but the scheme should be standard throughout Scotland, and decisions should be reviewed as part of inspection of services.""
"Even if there is no national scheme for minimum allowances, national schemes should be established for:
- Determination of allowances; and
- Means testing (if this is to be used).
These could be provided for in the regulations and/or Guidance."
Other respondents suggested that:
National Adoption Allowance Scheme - The need for a National Adoption Allowance Scheme has been expressed. Recommendation that the amount should be the fostering allowance (preferably Fostering Network recommended rates) minus child benefit would help with the amount but not with adopter eligibility.
No Minimum Allowance - One respondent did not think that there should be a minimum allowance - as different costs apply in different areas (costs in inner cities and remote rural areas may be higher). They suggested that authorities, in deciding level of allowance, should take account of child's needs and local circumstances.
Need for Guidance - Respondents felt strongly on the need for a robust guidance in relation to minimum adoption allowances and what it should be linked to, in order to ensure consistency of approach by Local Authorities in Scotland.
Child's needs and not parent's circumstances - One view reflected that parental circumstances should not be considered in assessing levels of allowance but the level of allowance should be exclusively based on a child's identified needs. It is useful to frame eligibility for allowances in the context of the child's needs and the new regulations appear to offer more flexibility in deciding how to pay allowances.
Adoptive parents should not be financially penalised when bringing up their children, in a family that has after all been created by the State. "We agree that adoptive parents should take on the expected costs of bringing up a child; however the needs of many of these children are so great that the ongoing financial costs are considerable."
Local authorities should be encouraged to work together as much as possible to prepare and operate schemes which are similar and are operated in as much of the same ways as possible. It is important that the 'post-code lottery effect' is not suffered by adopters and their families.
Scottish Government response
This regulation refers to the adoption allowances payable under s71 of the 2007 Act. s12 payments are made in lieu of adoption support and are covered as an adoption support service not an allowance. Similarly, s73 is concerned with occasions when payments are excepted payments and therefore not considered an offence, this section is not concerned with setting, regulating or providing for adoption allowances; rather it means that paying adoption allowances is not an offence.
The responses to the consultation generally supported the approach suggested, that allowances should be provided for in circumstances which are exceptional when compared with raising a birth child. They provided the flexibility for the adoption agency to provide allowances where necessary and allowing for local factors and costs.
Some respondents found the regulation relating to adoption allowances to be confusing. Comments included that the regulations combined one off payments and regular payments, that the regulation is complex, that there was no clear reason to have allowances and one off payments in the same regulation.
However, it is difficult to see where a clear division of the circumstances when an allowance may be made as a one off payment or as regular payments. Indeed, having split the regulation to cover single payments and regular payments the circumstances under which each payment can be made would be almost identical. We therefore do not consider it necessary or appropriate to split the regulation in this way.
Respondents indicated that the APRG report had recommended a National Adoption Allowance or a minimum adoption allowance in the same fashion as the foster care allowances. It is not thought that adoption allowances should become regular payments to adoptive parents to look after a child in the same way that foster care allowances are used. Any payments under these regulations need to be assessed in terms of need and the potential means of the adoptive parents to supply the care for the child. The assessment of the adopters' means to care for a child should inform a potential match.
The Scottish Government did not support the recommendation, made in the APRG report, that there should be a national scale of allowances, or set levels, as the circumstances of adoptions differ from case to case. Like some respondents, the Scottish Government feels that Local Authorities are in a better position to judge the level of allowance appropriate in each case. While the Local Authorities will have resources implications in providing adoption support and allowances, they also have a duty to the children in their area and this should be the primary factor in making determinations on payments being made to adoptive parents.