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Neutral Citation Number:	2015 UKUT 306 AAC
Reported Number:
File Number:	CIS 3545 2014
Appellant:	JS
Respondent:	Secretary of State for Work and Pensions (IS)
Judge/Commissioner:	Judge R Perez
Date Of Decision:	02/06/2015
Date Added:	17/06/2015
Main Category:	Income support and state pension credit
Main Subcategory:	other: income support
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2016] AACR 13. 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: 1. 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); 2. 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); 3. 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); 4. 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(s) to Download:	[2016] AACR 13ws.doc