JS CIS 3545 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge R Perez |
| Judgment Date | 02 June 2015 |
| Neutral Citation | 2015 UKUT 306 AAC |
| Subject Matter | Income support and state pension credit |
| Respondent | Secretary of State for Work and Pensions (IS) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 3545 2014 |
| Appellant | JS |
[2016] AACR 13
(JS v Secretary of State for Work and Pensions (IS)
[2015] UKUT 306 (AAC))
Judge Perez CIS/3545/2014
1 June 2015
Income support – meaning of “placed” within the meaning of the Children Act 1989 – failure to apply regulation 4ZA(4) of the Income Support (General) Regulations 1987
Recovery of overpayment – failure to disclose material fact – whether recovery unjust and unreasonable
The claimant, a foster carer, had qualified for income support (IS) because she had had a child “placed” with her within the meaning of the Children Act 1989 as required under paragraph 2 of Schedule 1B to the Income Support (General) Regulations 1987. In September 2013 she confirmed that the child left her home in July 2013 and there had been no subsequent placement. She was told that in the absence of a placement she was no longer entitled to IS and that she had received a recoverable overpayment of £501.90 “in consequence of” her failure to disclose the material fact that she no longer had a child with her. The claimant appealed unsuccessfully to the First-tier Tribunal (F-tT) on the basis that she had continued to be on call as a foster carer acting as a mentor for other foster carers and had a day care child. The claimant appealed to the Upper Tribunal (UT) arguing that the F-tT had wrongly construed “placed”, had failed to consider whether regulation 4ZA(4) of the 1987 regulations applied and that, in any event, the overpayment was not recoverable as to do so would be unjust and unreasonable.
Held, dismissing the appeal, that:
- the claimant did not have a child “placed” with her within the meaning of paragraph 2 of Schedule 1B to the regulations. The test was whether she had a child placed with her within the meaning of the Children Act 1989 (not whether she was a foster carer). “Placed” within the meaning of the Children Act 1989 meant that the claimant must actually have a child living with her, or accommodated by her, in discharge of the local authority’s functions under that Act (paragraphs 46 to 49)
- paragraph 2 of Schedule 1B could not be construed so that “placed” was not limited to having the meaning within the Children Act 1989. The instant case involved a clear distinction, whether a child was placed with the claimant when no child actually stayed or lived with her, which allowed a simple answer. In a more complex set of circumstances the meaning of “placed” in the Children Act might need an examination of family case law (paragraphs 61 to 62 and 66)
- the appeal did not raise the question of whether regulation 4ZA(4) of the Income Support (General) Regulations 1987 had been met and therefore the F-tT had not been at fault in law in failing to investigate whether the claimant had had a child stay with her for a period of 24 hours (paragraphs 67 to 68)
- the F-tT had not erred in deciding that there had been a recoverable overpayment under section 71 of the Social Security Administration Act 1992 and it had no discretion to stop recoverability on the grounds that it would be unjust and unreasonable to do so (paragraphs 70 to 72).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Decision
- The claimant’s appeal is dismissed.
Background
- This appeal is against the decision of the First-tier Tribunal that the claimant was not entitled to income support for the period 19 July 2013 to 5 September 2013 inclusive and that an overpayment of £501.90 for that period was recoverable from her under section 71 of the Social Security Administration Act 1992.
- I held an oral hearing of the appeal. Mr Stephen Cooper appeared for the Secretary of State. Mr Earl Pinnock of counsel appeared for the claimant.
- The claimant was a foster carer. Until 18 July 2013, she had qualified for income support under paragraph 2 of Schedule 1B to the Income Support (General) Regulations 1987 (SI 1987/1967 as amended, “the 1987 regulations”). This had been on the ground that she had a child “placed” with her within the meaning of the Children Act 1989 as required by that paragraph 2.
- A telephone review of the claim took place on 16 September 2013. In that review, it came to light that the child had left the claimant’s home on 18 July 2013 and the claimant told the reviewer that she had had “no placement since” then (page 7). The reviewer advised the claimant to claim jobseeker’s allowance (JSA) until she next had a placement in her household because she no longer satisfied a condition of entitlement for income support.
- In consequence of the review, the claimant’s entitlement was terminated from 19 July 2013, this being the first day on which she no longer had a child placed with her. Mr Pinnock accepted that, if the termination of entitlement was right in principle, then 19 July 2013 was the correct start date for the period of non-entitlement.
- There was no document in the bundle purporting to be a record of the decision terminating entitlement. There was only a reference to it in the Secretary of State’s submission to the tribunal. That reference was unsatisfactory, as Mr Cooper pointed out; it did not use the appropriate terms “supersession for material change of circumstances”. It simply referred to “closure” of the claim. However, Mr Pinnock generously accepted that there was an underlying Secretary of State decision terminating entitlement. He did not therefore take the point that section 71 could not apply for lack of an underlying termination decision (see section 71(5A)).
- The Secretary of State decided on 21 October 2013 that the overpayment of £501.90 was recoverable from the claimant under section 71 of the Social Security Administration Act 1992. This was on the ground that the claimant had failed to disclose the material fact that, from 19 July 2013, she no longer had a child with her and that the overpayment would not have occurred but for the failure to disclose. This was another way of saying that the payment had been made “in consequence of” the failure to disclose, which is what section 71 requires.
- The claimant appealed to the First-tier Tribunal.
First-tier Tribunal
- In her appeal to the tribunal, the claimant said she had been a foster carer for eight years and had gone from placement to placement. She said “I was completely unaware of the necessity to inform you of the end of this placement, because I am still a foster-carer that is my job”.
- Mr Cooper accepted before me that the appeal to the tribunal had been against both the entitlement decision and the overpayment decision.
- The tribunal had before it an undated submission from Citizens Advice saying (page 33):
“[In the telephone review the claimant] stated that at the time she did not have a child actually staying with her and the previous child had left on 18.7.13.
However, [the claimant] had during that period continued to be on call as a foster carer acting as a mentor for other foster carers and had a day care child.”
- The tribunal also had before it a letter dated 8 November 2013 from Solihull Metropolitan Borough Council (page 34). The letter said:
“To advise that [the claimant] is a Local Authority foster carer and has been fostering for Solihull MBC since October 2006.
As a foster carer there are short periods when [the claimant] is without a child in placement full time. During this period the foster placement is utilised by way of paid respite and day care to support other foster carers.
[The claimant] is a valued and experienced carer and vulnerable children as well as the organisation would lose the benefit of this should [the claimant] not be available to undertake the fostering task.”
- It was not in dispute before the tribunal that the claimant had not had a child stay in her home overnight or under foster care arrangements in the period in issue. Her evidence was that she was helping other foster carers rather than fostering herself.
- The tribunal decided that, for the period in issue, the claimant had no child “placed” with her for the purposes of...
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