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Regulations 6, 7 and 8
Question 12: Is the ability to pay allowances, as outlined in Regulation 6, suitable?
Most responses were in favour of the regulation. However, one respondent felt this regulation was not necessary.
The respondents' comments include:
Yes. Particularly helpful if a child/young person requires e.g. art therapy. Guidance for local authorities in respect of the criteria for adoptive parents and children to ensure that allowances are spent appropriately to support the child's needs as stipulated.
The flexibility around this Regulation will be very useful and help local authorities to be supportive to adopters.
The Regulations give very limited guidance in assisting with determining the amount of adoption allowance to be paid. There are already a number of adoption allowance schemes operating in Scotland however they seem to vary considerably in calculating income and expenditure and costs incurred in caring for a child or sibling group.
Most payments are regular payments to cover day-to-day costs.
This regulation is not necessary. Non-periodic payments do not need to be regulated. Section 71 and reg 4(1) already provide for periodic allowances to be paid.
Respondents suggested that:
This is where national guidance about how to administer a financial assessment would be appreciated.
The ability to meet recurring or one-off costs as detailed in Regulation 6 is desirable.
Scottish Government response
Respondents considered that the regulation was suitable as it allowed payments to be made on a one off basis, in installments or as periodic payments. The respondent who indicated that the regulation was not necessary pointed to section 71 of the 2007 Act and regulation 4(1) of these regulations. It is our opinion that section 71 is the regulation making power that allows Scottish Ministers to make these regulations and to indicate how a payment may be made, such as in regulation 6. Regulation 4(1) indicates that an adoption allowance is payable to the adoptive parents to support the adoption. This does not mention how and in what fashion the allowances may be made.
Question 13: Are the factors that must be taken into account in determining the amount of an adoption allowance correct and sufficient?
Most respondents agreed, with two respondents disagreeing.
The respondents' comments included:
"The factors as outlined are correct and sufficient, and fair to adopters."
"Guidance needs to take account of the needs of adopters who may adopt a large sibling group - are allowances to be paid for each child?"
"The regulation would appear to be sufficiently flexible. Not entirely clear that a child's disability living allowance would be excluded in this section. It is a matter of interpretation; though note that it is excluded in the current legislations."
"Each child's placement should reflect the needs of the child not the allowance that would maximize income for the carer."
"Regulation 7 is more complicated than reg. 4 in the 1996 Regulations."
The respondents suggested that:
Suggestions for a robust financial guidance including the setting of the financial thresholds in terms of the financial assessment were made. Capital thresholds also need to be provided.
A national framework for assessing allowances, perhaps by way of a Schedule, was suggested.
Respondents urged the introduction of a National Adoption Allowance Scheme. However, if a means tested approach is to be taken, respondents indicated that it should be simple, open and transparent, and the factors listed would seem appropriate.
Adoptive parents should not be made to feel they are asking for 'handouts' and be required to produce mountains of documentation to receive the allowance. Whatever approach is taken, local authorities should be operating the same or similar adoption allowance schemes.
Guidance to re-iterate the discretion referred to when "taking into account" various factors to ensure no double counting was thought to be helpful.
'Assessment' is used but there is no assessment process set out in the regulations for allowances.
Practitioners would prefer 'when' instead of 'where' in reg 7(1).
Regulation 7(2) should have the same benefits excluded as in reg 4(2)(a) of the 1996 Regulations.
Regulation 7(3)(c) should be deleted. It is not appropriate to include any resources a child might have. And the children who require allowances as part of their support packages will not have any resources anyway. We are aware that there is a similar provision in the 1996 Regulations but there is no need to repeat it in the new ones.
Regulation 7(5) should be incorporated into reg 7(4). It should be mandatory for agencies to disregard all the factors in paras (4) and (5), with no discretion.
The word "reasonable" should be inserted before legal costs in regulation 7(4)(a)
Scottish Government response
Respondents indicated a broad agreement to the provisions on regulation 7, however there were some concerns, indicated above, expressed by both those that supported the regulation and those that did not.
The Scottish Government considers it to be the decision of the adoption agencies which benefits should be considered when deciding upon an allowance to support aspects of the adoption of a child. These decisions will be made taking account of all the individual circumstances of the child and the adoptive family and it would not be appropriate to define the mechanisms of this process in each circumstance on the face of the Regulations. s71 of the Act requires Local Authorities to prepare an adoption allowances scheme, the benefits taken into account and circumstances of the payments could be indicated in this scheme. Any indication in guidance will only be examples of what might be considered when making the decisions; we would expect adoption agencies to have their own policies which they will be using to assess the need and level of an allowance.
Similarly, it would not be appropriate for the Scottish Government to set a rigid framework for allowances when each individual case and requirement may well be different. Allowances are designed to support the adoption where this is necessary for the adoptive parent(s) to care for the child, for instance: the child may have special care needs; special arrangements may be necessary due to the child's circumstances; there may be travel costs for contact between the child and a relative; or the adoption agency may considers it appropriate to contribute towards costs. The underlying philosophy is 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 costs not usually associated with the care of a child are experienced. Where there are circumstances where paying an allowances is considered it would be expected that these circumstances had been considered at the time the child was placed.
Regulation 7(3)(c) will be reconsidered to exclude the resources of the child, but not the needs of the child from being taken into account. It is not felt that the factors identified in regulation 7(3) should be explicitly disregarded when considering providing an allowance in respect of those circumstances identified in regulation 7(5). It is felt that discretionary consideration of these factors allows flexibility in the approach to allowances that would be suitable for each adoption agency. The amendment to 7(4)(a) will be made.
Question 14: Is it correct that these factors should be disregarded in certain circumstances, and are these circumstances sufficiently covered?
All the respondents agreed that in certain circumstances the factors indicated should be disregarded. While most respondents agreed that the circumstances were sufficiently covered some concerns were raised.
Comments on this question included:
"There is an argument for adopters contributing to legal costs."
"Yes, it is correct that the factors should be disregarded in certain circumstances, however, in the circumstances identified in reg 7(5), disregarding the factors should be mandatory (as with reg 7(4)), rather than discretionary. Each of these circumstances are essential and important parts of the adoption process and should not be undermined by concerns about the funding of expenses. Not to take this approach clearly shows that adoptive families and the placement of children for adoption are not valued in the way they should be."
"While some of the factors identified under regulations 7 should be disregarded when considering an adoptive allowance they should not include factors common to children such as costs associated with age or as part of a sibling group. These needs should be met through the individual assessment process i.e. what adoption agencies need to take into account while assessing the income of a carer"
"Where there are such strong reasons for paying an allowance a financial assessment should not be undertaken. The allowance is a means of support in difficult circumstances and often placement would not happen without it."
"All the factors in regulation 7(4) and (5) should be disregarded, with no discretion. It should be mandatory for agencies to disregard all the factors in paras (4) and (5), with no discretion."
"There should be criteria focussing on the needs of the child, given the complicated needs of many adopted children."
Yes as these can be paid under 4(e) at the agency's discretion. Adoptive parents will appreciate and should be aware of the costs involved in the adoption process"
Scottish Government Response
Respondents agreed that the factors identified should be disregarded under certain circumstances. While the respondents indicated that the circumstances were correct, some indicated that all the circumstances should be disregarded in all circumstances, while other respondents indicated that certain circumstances, such as placing in a sibling group, should already have been considered prior to place a child with particular prospective adopters. As there were no additional circumstances suggested, and the current drafting of the regulations allows for flexibility in considering whether to disregard the circumstances in regulation 7(5) the Scottish Government proposes to draft regulation 7 as it is. We believe that retaining the flexibility allows for adoption agencies to disregard the circumstances in regulation 7(5) at all times if they feel this is necessary, but also allow those agencies which consider these circumstances to be relevant when making a decision on adoption allowances to take them into account.
Question 15: Is it correct that adoption allowances should cease when the child reaches adulthood?
All responses were in agreement that adoption allowances should cease when the child reached adulthood, further adding that "they would be able to claim benefits in their own right at that time if appropriate" or "will be provided for through employment". However, as pointed by one respondent, "except when the child is in full-time education, as set out in regulation 8(d)". Another respondent added that the young person may require ongoing services and this needs to be reflected in other legislation and regulations.
Some comments were noted, as below:
"Regulation 8 also mirrors the local authority duty to financially support young care leavers who continue in full time education or training programme"
"Discretion in relation to children and young people with additional support needs may need to be stipulated in guidance."
One of the respondents raised the question, "When is adulthood?" Further suggesting that for many adopted children and young people, their chronological age is not the same as their developmental age, which may be a number of years behind. Therefore, the concept of "reaching adulthood" is a vague one for many adopted children and young people.
A respondent suggested a minimum age of 21 years as being more appropriate, with flexibility or discretion to extend this to the age of 25 years.
One respondent suggested that it would be helpful to allow some discretion for 16/17 year olds who are not in full-time education or training.
Another respondent pointed out that this may not always be the correct approach, as "some adopted children abnormally dependent and have limited capacity in the adult world to reach their own independence."
This regulation should be at the end of the part dealing with allowances.
Scottish Government response
Respondents supported the circumstances under which an adoption allowance will cease to be paid to an adopter. Some respondents suggested that the age should be extended or some discretion allowed to adoption agencies. As it is not envisaged that the adoption allowance will be a "salary" for an adoptive parent and will be payable only in certain circumstances, it is envisaged that the allowance should stop being paid when the adopted person no longer resides with, or relies on, the adoptive parent, such as when the adopted person begins employment. Additional support which may not be available to birth children should not be the norm. Circumstances where such additional support is required after the adopted person leaves education are likely to have been identified in advance of this time and appropriate arrangements could be in place under an agreement made in line with regulation 8(e).
Question 16: Do the circumstances set out in Regulation 8 adequately capture this principle?
On the whole, the respondents felt that the circumstances set out in Regulation 8 were acceptable.
Comments on this question included:
Consideration could be given to the option of an ongoing adoption allowance being required to be paid to the young person rather than the adoptive parent and this may be consistent with Throughcare and Aftercare principles.
The payment of the adoption allowance until the child reaches full adulthood or in certain circumstances beyond is supportive to adopters, and therefore, this Authority is of the opinion it captures the principle enshrined in the Regulations.
Regulation 8 also mirrors the local authority duty to financially support young care leavers who continue in full time education or a training programme, post 18 under Section 30 of the Children (Scotland) Act 1995.
One respondent found the wording in regulation 8(a), 'the child ceases to have a home with the adoptive parent' too vague. Young people may well not live with adopters but still be part of the family and supported financially and socially by the adopters. The respondent suggested that the phrase should describe the young person as still being part of the household or part of the family.
It was suggested that regulation 8(a) should be reworded to take into account the fact a young person may be living outwith the family home for some periods, but will very much remain part of the family and continue to be supported financially and emotionally by the family (often referred to as "parenting at a distance" in family circumstances close to a disruption).
Scottish Government response
Respondents agreed that the principle of when an adoption allowance should be paid, and when these payments should no longer be made was correct. It was thought the regulation captures this principle adequately. However, two respondents indicated that there may be times where an adopted person is no longer living with the adopters but that the adopters are still financially responsible for them. Under certain circumstances, such as where a child is resident at boarding school or living with relatives while their adoptive parents are abroad, it is difficult to see how allowances payable for specific aid could continue to be paid to the adopter who is not responsible for the day to day care of the adopted person. It may be expected that the provision of services by the boarding school may adequately provide for the needs of the child, and in the second example it may be more appropriate for the relative to be in receipt of any allowance for specific care of a child. In these circumstances it may not be appropriate to pay an allowance at all as the adoptive parent feels that the ongoing care of the child is sufficiently secure to entrust this in another person for extended periods.
The care of the adopted person is the paramount concern and therefore any allowance which is periodically paid should continue to be provided so long as it is necessary and has been agreed. If the care of the child is being entrusted in another person for an extended period, and it is agreed between the adoption agency and the adoptive parents that the need for the allowance remains, arrangements for the continued payment should be made prior to the entrustment of the child in that person. The adoptive parent is required under regulation 9 to ensure that changes in circumstance are indicated to the adoption agency and therefore any circumstance which would give rise to the child no longer residing with the adoptive parent should be notified. Similarly, arrangements for the ongoing needs of an adopted person should be made in the event of respite care or "parenting at a distance" where a disruption in the placement has occurred. Any disruption should not jeopardise the care of the child.
Therefore, we will amending the wording of regulation 8 to ensure that the principle of the regulation, along with the circumstances which are currently identified, are not lost, but to ensure that the care of the child is the defining factor and that the child's residence is not the basis of the decision alone. This will be achieved by including a discretionary power in regulation 8(a) whereby an adoption allowance ceases to be paid when the adoptive child no longer lives with the adoptive parent, unless the adoption agency consider its continuation to be necessary. This provision will have regard to the needs of the child or any other exceptional circumstances.
Question 17: Is the age of 18 considered an appropriate age when assessing the termination of an adoption allowance?
While most respondents agreed to the age of 18, two of the respondents disagreed and one believed the age of 21 to be more appropriate, with an allowance up to the age of 25 in specified circumstances.
The respondents made a number of comments, these included:
"Termination of allowances at age 18 or 21 if in full time education under Regulation 8 is appropriate."
"If a young person attends higher education, then they would have the same right to apply for a student loan as anyone else, and it is not a good idea to continue to label the young person as being different, or requiring special help. If the continued educational needs are a reflection of disability, then the young person would have the right to apply for other means of support e.g. DLA."
"The age of 18 is when young people receive their full adult rights and an appropriate age at which to terminate the payment of an adoption allowance. […] The Regulation is flexible enough to enable the Authority to support them through higher education if they decide to go to university or undertake further training. Where the young person enters into part time education at 18, it would be beneficial to them if the Authority could support their educational achievement and thus future job prospects."
"A definition of "ceases to have a home" would be helpful. Alternatively, the criteria could be "ceases to have main financial responsibility for the child". There are a number of examples: a child attending boarding school; a child living with friends or relatives in order to continue attending their current school when their parents live abroad; a child becoming looked after but spending some weekends with their adopter. In the first two examples, a full allowance could continue to be paid, but not in the third."
"Adoption allowances should not cease when the child reaches adulthood, depending on individual circumstances."
Scottish Government response
Respondents agreed with the age of 18 as appropriate for adoption allowances to cease being paid. Certain circumstances were indicated by some respondents as reasons for extending this beyond 18 where the child has not continued in full time education. This regulation already contains discretionary powers at 8(e) whereby the adoption agency can agree a timescale for the allowances. It is our consideration that the age is in line with current legislation on financial responsibility of local authorities for looked after children and additional support may not be appropriate.
Question 18: When considering full-time education, should an age limit, such as 21, be indicated in the legislation, or is it appropriate to leave this undefined?
There were mixed responses to this question, though a majority were not in favour of an age limit (at 21) being set.
A few respondents suggested that it was appropriate that this age limit should remain undefined (as in Regulation 8 (d)). Another respondent felt that this should not be left undefined, but also recognised the difficulties in establishing a cut off point of 21 years.
Comments made on this question include:
"An age limit should not be defined as adopted children may experience delays in education and attainment and opportunities should be provided to enable an adopted child/young person to complete their education beyond the age of 21."
"Provision should be made to support those young people who have continued their full time education until the end of their course of study. This should have a ceiling of 22 years of age placed upon it to reflect the standard four year honours degree course of study."
"Reg 8(b) should not be limited simply to "full time education", given the changing nature of education and training in recent times. Many young people today carry out part-time education of both an academic and vocational nature, and this should be recognised in the regulations."
" The current arrangements whereby adoption allowances should cease when a young person finishes higher education should be retained. This accords with other social policy encouraging looked after children or those who have been previously looked after to continue with education. However, eligibility for student loans and other grants or bursaries are usually means tested, and an adopted young person ought not to be treated any differently in this respect than any other young person."
"For a young person with additional support needs, entitlement to school education extends to 19 years of age. It may be helpful to give the indicative age of 21 as a maximum cut off point, rather than at the point of leaving full time education, unless there are exceptional circumstances - it may not be realistic for local authorities to support young people who do a first degree then a second or even third one."
"We think this should be defined. If beyond the age of 18 and an adoptive child is continuing with full-time education, we suggest we would continue to pay until the end of the course, up to a maximum of five years. E.g. Often young people do an NC and then progress to degree course and need longer support".
Scottish Government response
Again, the majority of respondents agreed with the regulation as drafted, that the age at which allowances should cease to be paid when a child is in full-time education remain undefined. However, a proportion suggested that an age should be defined and that it would be inappropriate for an adoption agency to continue to support an adopted child through a number of consecutive qualifications.
The adoption allowance is envisaged to be for supporting the care of an adopted person where there are exceptional circumstances. It is not considered to be a form of general support or salary payment. It may well be unlikely that a periodic support is required indefinitely when a child is placed with adoptive parents. However, where this does happen, provision needs to be in place for the ongoing support to be provided for. As respondents indicated, a child will be eligible for other support payments after the age of 18 and, if in full time education, to support for this education to continue. While it is unlikely to be the case, it is inappropriate for the adoption agency to be expected to provide support to a child who had been adopted when they are no longer expected to provide support for a child who was looked after by them, and when a natural parent is not expected to provide support for a birth child. If an age is defined in legislation then this becomes rigid and may lead to support ending part way through its required duration.
We consider that "may continue until the end" provides a suitable discretion for the adoption agency to continue paying the allowance where a person has attained the age of 18 when they have continued in full-time education. The length of course would not need to be defined in legislation in this instance and would guard against continuing to support an adopted child through a number of consecutive qualifications, or changes in course.
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