Regulations 9 and 10
Question 19: Are the conditions applicable to the payment of allowances appropriate?
All bar one of the respondents were in agreement, and stated that the conditions, proposed sanctions, arrangements for review and options for suspending allowances were appropriate.
Some of the comments made by respondents include:
"It may be helpful to include details of why an allowance was agreed in the first instance as circumstances around the reasons for payment may have changed. In addition, what evidence would be required to support the information i.e. relating to adopters/child's financial situation."
"A definition of "change in the adoptive parent's financial circumstances" would be helpful. The Guidance refers to "key changes in circumstance" - what are they?"
"Formal agreement in writing between the adoptive parents and the agency would be preferred."
"The requirement for adopters to submit yearly statements of their finances is extremely intrusive and time consuming. There are frequently requests for multiple payslips, bank statements, mortgage statements and bills."
"We would prefer there to be no means testing. However, if this is to be done, there must be a national framework for how it is done"
"Guidance should say that adoption allowances should be fostering allowances less benefits etc; and that there should be a tapering of allowance levels for those who are on the edge of financial entitlement to adoption allowances."
"Regulation 9(1)(a). The time limit at the end should be 28, not seven - as written this is also too onerous on adopters."
"The regulations need to be clear that responsibility for allowances (as opposed to adoption support services) remains with a placing agency and does not end after three years."
Scottish Government response
Most respondents agreed with the conditions outlined in regulation 9 and the notification of changes to circumstances being notified to the adoption agency. It is not unreasonable to expect an adopter in receipt of periodic payments to support the care of an adoptive child to inform the agency that the circumstances under which the allowance is being paid has changed. Significant changes in circumstances may mean that the support being provided is no longer required. It should be remembered that an adoption allowance is not equivalent to a fostering allowance, in that it is to support the care of a child in circumstances which are exceptional. The adoptive parent may also be in receipt of other benefits, such as child benefit or tax credits, which are designed to support the general care of a child. As indicated in regulation 9(1), the notification of a change in circumstance orally should be followed up by a written notification in 7 days. Extending this period does not seem reasonable as the adoptive parent should be in a position to formally notify the adoption agency in writing if they have already done so orally. However, some respondents requested that the timescale for the initial notification of the changes in circumstance be extended to 28 days, or within a "reasonable time", rather than immediately. The Scottish Government will make the required changes to this regulation to allow for a reasonable timescale for notification under distressing or stressful circumstances.
It is expected that, as part of the assessment of need for an allowance the adoption agency will have gained written agreement and noted the reasons for the allowance in the appropriate file. This will be covered in guidance.
Question 20: If these conditions are not met, are the possible sanctions appropriate?
All respondents were in agreement, stating that the sanctions are fair, provided that a fair process is involved in reaching any decision, and if there are reasonable timescales.
Comments made by the respondents included:
"Guidance needs to make explicit what appeals and representations are available in certain circumstances."
"Rather than "seek to recover", the right has to be "to recover" in Regulation 9(3)(b)."
"Though the 28-day period in 4(b) only relates to failure to provide annual statements. This should be applicable for all conditions. Local Authority would have to demonstrate reasonableness should it seek to recover monies due to it by way of a summary procedure."
"The requirement to inform the authority immediately is unreasonable, especially in the situations outlined, egg, where the child dies. It would be much better to state that such information should be communicated to the agency within a "reasonable time", or perhaps within 28 days of the change of circumstance."
"Agencies should make all efforts to discuss any concerns with adopters and reach a resolution through negotiations. The experience of practitioners is that adopters can simply forget to return forms or forget to notify the agency that they have moved house, and there is a need to avoid penalising adopters unnecessarily and potentially causing financial hardship. Circumstances in which 10(2)(c) would apply seem unclear. Is it necessary?"
Scottish Government response
As all the respondents considered the ability of the adoption agency to vary, suspend or terminate an adoption allowance, and to recover all or part of that allowance, where conditions imposed on the payment have not been complied with, we do not propose to change this part of the regulations. Some respondents felt that the 28 day period for a reminder to be complied with where a statement has not been provided should be extended to all the conditions. It is difficult to see how some of the conditions can be subject to this period as the conditions are not subject to an annual review (for instance where the adoptive parents have moved house). Therefore it would not be appropriate to require a reminder about this condition to be sent to the adoptive parents and allow 28 days for a return.
Question 21: Are the arrangements for the periodic review of adoption allowances suitable?
Only one respondent disagreed with the periodic review of adoption allowances as outlined in the regulations. Most of the respondents agreed that the review covered most eventualities and was sufficiently robust, although some comments were made regarding timescales for decisions
"Further guidance would be welcomed regarding this area particularly in relation to the opportunity to make representations."
"The system for annual reviews is sufficiently robust, although we suggest that the forms need to be amended to form a fuller assessment of the adopted family's circumstances. "
"Yearly review is too often - how about every 2 years?"
"It is essential that this regulation has timescales for processes and decisions by adoption agencies on reviews, otherwise the arrangements will be unfair."
"The regulations need to be clear that responsibility for allowances (as opposed to adoption support services) remains with a placing agency and does not end after three years."
"Not as they currently appear in the regulations: It is essential that this regulation has timescales […], the regulations need to be clear the responsibility for allowances remain with the placing agency […], Regulation 10(2)(c) is too vague. We do not think it is necessary."
Scottish Government response
We do not think it is appropriate to include timescales for reviews of allowances to be on the face of the legislation; rather this should be picked up in guidance. We do not propose to amend this regulation as the majority of respondents agreed that this was a robust and satisfactory process. Requests for further information in guidance have been noted.
Question 22: Is the facility to suspend adoption allowances pending a decision appropriate?
Most respondents agreed that the proposed sanctions and decision to suspend were appropriate. However, two respondents disagreed with a suspension, and provided the following comments.
"It is totally unacceptable and contrary to the rules of natural justice. Before any suspension of payment is made, adopters should be informed of the intention to suspend payment, and then given an opportunity to make representations before any final decision is made. Not only is this the only fair approach, it also avoids undue financial hardship."
One of the respondents also held the view that "there should be no suspension of adoption allowances until an appeal is heard. Guidance should make reference to appropriate timescales for this."
The respondents who agreed with this question made the following comments:
"It is better to suspend payment and re-instate later, if appropriate, rather than risk the need to recover over-payment."
"The suspension of allowances pending a decision protects both the Authority and adopter, especially the latter if repayments are to be made."
"We feel that this would not usually happen but useful to be able to in certain circumstances. There is no clarification about the process for adopters where they are able to make representation."
"Yes, provided it is not misused. If an allowance is suspended, the agency must immediately give written notice of that, the reasons for it and what steps it is taking in its review."
Scottish Government response
Most respondents agreed with the provision to suspend an allowance whilst a decision on whether to reduce or terminate an adoption allowance. Like many respondents, the Scottish Government does not consider that this power will become the norm or be misused. The decision to reduce or terminate an allowance must be made in light of the evidence provided and with consideration to the interests of the child. It would not be considered appropriate for an adoption agency to reduce or terminate allowances without good reason, and supported by thorough processes. Due to the proper consideration of each individual case, it is likely that a decision would not have been taken unless it is appropriate, and therefore the suspension of allowances whilst representation is sought from the adopters seems appropriate. This is supported by the majority of respondents.
The final decision to reduce or terminate an allowance or revise a support plan cannot be made without first contacting the adopters giving them an opportunity to make representations and then indicating the period that this representation should be made in. It is not likely that this period will be a lengthy period of time, this will be expanded upon in guidance, and so the disruption caused by the suspension of a payment should not be as great as that caused by recovering a payment in light of any final decision.
As the general approach in this regulation is supported we do not propose to make any amendments.