IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
	Appeal No.  CIS/3545/2014	
Before Upper Tribunal Judge Perez

Decision

1.	The claimant’s appeal is dismissed.

Background

2.	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.

3.	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.

4.	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 (S.I. 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.  

5.	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 until she next had a placement in her household because she no longer satisfied a condition of entitlement for income support.

6.	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.

7.	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)).

8.	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.

9.	The claimant appealed to the First-tier Tribunal.

First-tier Tribunal

10.	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”.

11.	Mr Cooper accepted before me that the appeal to the tribunal had been against both the entitlement decision and the overpayment decision.

12.	The tribunal had before it an undated submission from Citizen’s 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.”.

13.	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.”.

14.	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.

15.	The tribunal decided that, for the period in issue, the claimant had no child “placed” with her for the purposes of paragraph 2 of Schedule 1B to the regulations.  The tribunal said (page 41)—

“7…[The claimant’s] representative submitted that I should take a broad view and that their client should get the benefit of the provision whether or not she had a foster child placed with her and in her household, for the reason I suspect that the mere status of being a registered or approved foster parent should allow the appellant to fall within and get the benefit of paragraph 2.  I have two difficulties with that argument.  The first is that its consequence would be that there would be instances where the foster parent has no foster children in their household for long, indeterminate, or even indefinite periods yet they could continue to claim the benefit of paragraph 2.  The second is that the word ‘placed’ has a sense of certainty or reality about it, namely, that a child must have actually been placed with the foster parent, rather than the foster parent is on a list of suitable adults with [whom] a child might be placed.  And if I were to take the line that as long as the authority were paying the prospective foster parent she would fall within paragraph 2 she or he would not have such a child within their household, which is the purpose of the provision.

8. Taking the above together I find that if there is no foster child in the foster parent’s household, the child having been placed there by the local authority, paragraph 2 cannot assist her.”.

16.	The tribunal found that the claimant had been sent information notes with each annual uprating and that the notes list changes of circumstances which must be reported and are sufficiently wide to cover the situation which arose here.  The tribunal also said (page 37)—

“[the claimant] agreed that she had received [the notes] although she confessed that she had not read them.  I find that the fact of their receipt means that she can be taken to have understood their contents and/or the need to check in the event of a change to her circumstances.  That imposes an obligation upon her to report that change.  She failed to do so…”.

17.	The tribunal therefore upheld the Secretary of State’s decision that there was a recoverable overpayment.  The tribunal overturned however a civil penalty that had been imposed.

18.	The tribunal conflated in the decision notice its consideration of entitlement with its consideration of the recoverable overpayment.  It did however effectively address both in its statement of reasons.  Mr Pinnock agreed that the tribunal’s decision was a decision on both entitlement and overpayment.

19.	A judge of the First-tier Tribunal gave permission to the claimant to appeal to the Upper Tribunal.  He said there was no obvious error of law but that he was granting permission “because of the importance of the issue to [the claimant] being able to continue as a foster carer”.

Appeal to Upper Tribunal

20.	The appellant appealed to the Upper Tribunal on the grounds that the tribunal had wrongly construed “placed” and that it had failed to consider whether regulation 4ZA(4) of the 1987 regulations applied.  The appellant also said that the overpayment was not in any event recoverable because it would be unjust to recover it.

The legislation

21.	Section 124(1)(e) of the Social Security Contributions and Benefits Act 1992 (c.4) provides that one of the conditions of entitlement to income support is that the claimant “falls within a prescribed category of person”.

22.	Regulation 4ZA of the 1987 regulations provides—

“Prescribed categories of person

4ZA.—(1) Subject to the following provisions of this regulation, a person to whom any paragraph of Schedule 1B applies falls within a prescribed category of person for the purposes of section 124(1)(e) of the Contributions and Benefits Act (entitlement to income support).
[…]
(4) A person who falls within a prescribed category in Schedule 1B for the purposes of this regulation for any day in a benefit week, shall fall within that category for the whole of that week.”.

23.	Schedule 1B to the 1987 regulations is headed “PRESCRIBED CATEGORIES OF PERSON”.

24.	Paragraph 2 of Schedule 1B provides, so far as relevant—

“Single persons looking after foster children

2. A single claimant or a lone parent with whom a child is placed—

(a) by a local authority or voluntary organisation within the meaning of the Children Act 1989;”.

Appellant’s submissions

Entitlement

Meaning of “placed”

25.	The appellant said that the First-tier Tribunal erroneously concluded that her circumstances were such that she was not a foster parent at the time of the claim.  Mr Pinnock submitted that this erred in failing to take account of the practicalities of foster care and of the requirement for the foster carer to be available at a moment’s notice to take on a child.  He seemed to accept at the hearing before me that the notice was 24 hours rather than mere moments, but that did not alter the thrust of his argument.

26.	Mr Pinnock submitted that “with whom a child is placed” should be construed to mean—

“-	with whom a child is placed, or 
 -	with whom a child is ready for imminent placement, or 
 -	who is ready to accept the imminent placement of a child”.

Mr Pinnock submitted that paragraph 2 of Schedule 1B could operate effectively in the context of the claimant, and many others like her, only if it was so construed.  He said that being ready to accept a child made being a foster carer akin to a job.  He said the claimant was still in that job even though a child had left her care and was no longer “placed” with her within the meaning of the Children Act 1989.

27.	Mr Pinnock submitted that foster caring arrangements could not possibly operate in the way envisaged by the tribunal’s narrow interpretation.  He said that his client was on call for the local authority to accept placement of new-born babies at the drop of a hat.  He said that the babies are also removed at very short notice, being highly sought after by parents looking to adopt.  He submitted that the tribunal’s interpretation would mean, by reference to the table below, that on Monday and Tuesday the claimant would be entitled to income support.  On Wednesday, she would have to notify the benefits office that she was not entitled to it.  On Thursday, she would become entitled to it again, and on Friday she would not be entitled to it.

	Mon	Tue	Wed	Thur	Fri	

Baby John	
Placed	
Placed	
Withdrawn/adopted			

Baby Jane				
Placed	
Withdrawn/adopted

28.	Mr Pinnock submitted that the table above is a recipe for chaos and serves to discourage the likes of the claimant from offering the valuable service they offer.  He said it also explains why no person, properly placed to advise the claimant, has ever advised her that she should not be claiming income support when a child is not physically with her.

29.	Mr Pinnock accepted that “placed” within the meaning of the Children Act 1989 did not mean “ready for imminent placement” or “ready to accept imminent placement”.  He accepted that “placed” strictly speaking did mean a child living with the foster carer in discharge of the local authority’s functions under the Children Act.  He accepted therefore that his contended construction did not give a definition that could be used instead of “placed” or “placement” where they appear in the Children Act.

30.	But he submitted that the provision must be construed more widely than its meaning within the Children Act.  He submitted that the purpose of paragraph 2 of Schedule 1B has to be looked at, and that it has to be looked at in the context of society as a whole.   He submitted that the evidence was that the claimant was ready and willing to accept a placement, and was meanwhile giving respite care.  He submitted that that evidence, on a modern-day rather than an old-fashioned approach to the legislation, should result in the claimant being found to have had a child “placed” with her for the period in issue.

Whether tribunal materially erred in law in not considering application of regulation 4ZA(4)

31.	It was common ground that, had the claimant had a child placed with her for a period of 24 hours or more, she would by virtue of regulation 4ZA(4) have been entitled to income support for the whole of the benefit week in which 24 hours of that period fell.  (In fact, if the situation in the present case fell within section 22(1)(b) of the Children Act rather than section 22(1)(a), then “placed” within the meaning of the Children Act would mean more than 24 hours.  So the child would have to be with the claimant for just over 24 hours for it to be a “placement” and so for the claimant to benefit from regulation 4ZA(4). But that does not alter the thrust of the parties’ arguments.)

32.	Mr Pinnock submitted that, even if the tribunal was right in its approach to “placed”, it materially erred in law in failing to ask the claimant whether she had had a child placed with her for 24 hours or more in the period in issue.  

Appellant’s submissions: Recoverable overpayment

33.	Mr Pinnock submitted that section 71 should be construed so as to operate fairly.  He said that to operate it as a strict liability provision was unjust and unreasonable and that the tribunal should exercise a discretion to stop recoverability.  He submitted that the situation of not having a child placed with her was for the claimant unique and that she believed she had nothing to report.  He submitted that those facts undermined the justice of recovering the overpayment.

Secretary of State’s submissions

34.	Mr Cooper did not seek to disturb the tribunal’s decision on the civil penalty.

Entitlement

Meaning of “placed”

35.	The Secretary of State submitted that “child” is defined in section 137 of the Social Security Contributions and Benefits Act 1992 as “a person under the age of 16”.  

36.	He submitted that “placed” cannot be given the meaning contended for by the appellant.  “Placed” itself is not defined in the Children Act 1989.  The Secretary of State relied on section 22 of that act which provides, so far as relevant—

“22  General duty of local authority in relation to children looked after by them
(1)     In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is—
(a)	in their care; or
(b)	provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 17, 23B and 24B.
(2)     In subsection (1) “accommodation” means accommodation which is provided for a continuous period of more than 24 hours.”.

37.	The Secretary of State submitted that “placed” means that the child has to be looked after for a continuous period of more than 24 hours in accordance with the meaning of section 22(2) of the Children Act.  He submitted that this was not satisfied by day care or respite care.

38.	 Mr Cooper submitted that the claimant was asking for the provision to mean that the claimant qualifies just for being a foster parent.  He said that that is the opposite of what the provision says.  He submitted that, had the drafter intended the construction proposed by the claimant, the drafter could easily have drafted the provision in that way.

39.	Mr Cooper further submitted that, even though the construction the claimant wanted might be a rational policy, that construction is not the policy.  He submitted that the policy is that, when you do not have a child with you, you should sign on for JSA and keep in touch with the world of work.  He submitted that that was not an irrational policy.

40.	He submitted that the evidence showed that the local authority viewed the respite care and day care as being help from the claimant where the child is “placed” with other foster carers under the Children Act.

Whether tribunal materially erred in law in not considering application of regulation 4ZA(4)

41.	Mr Cooper submitted that regulation 4ZA requires that the claimant fall within it “for” any day, rather than “on” any day.  Regulation 4ZA refers to “any day in a benefit week”.  Mr Cooper said that, although there is no definition of “day”, a “benefit week” is defined by regulation 2 as having the meaning prescribed in paragraph 4 of Schedule 7 to the Social Security (Claims and Payments) Regulations 1987.  He said that, because a benefit week is there defined as having seven days, a day must mean 24 hours in this context.  Mr Pinnock accepted that a day means 24 hours in regulation 4ZA(4).  

42.	Mr Cooper submitted that there was no evidence that the claimant had had a child placed with her for 24 hours in the period in issue.  He said that the only evidence for the claimant was the reference by Solihull MBC (letter 8 November, page 34) to the claimant giving respite care and helping other foster carers.  He submitted that the way the evidence was phrased suggested that the help the claimant gives is in respect of a child placed with someone else and so not placed with her.  He submitted that the appeal did not therefore raise the question of the application of regulation 4ZA.

43.	He submitted that, if the tribunal did err in law in not considering regulation 4ZA, the error was not material.  This was he said because the answer would be that the claimant did not have a child placed with her for 24 hours or more during the period of the overpayment.

Secretary of State’s submissions: Recoverable overpayment

44.	Mr Cooper submitted that there are two duties to disclose material facts.  He cited Hinchy v SSWP [2005] UKHL 16, [2005] 1 WLR 967.  The first duty, he said, is an absolute or strict duty.  The second duty, he said, is based on whether the claimant could reasonably be expected to know the material fact.  He submitted that, in the present case, the claimant was under the strict duty to disclose that she no longer had a child placed with her.  He based this on the fact that the claimant had admitted receiving leaflets which said—

“The changes Jobcentre Plus need to know about
You must tell us straight away if any of the things in these notes change […].

[…]
Also tell us if

•	someone comes to live  in your house, or someone leaves
•	you stop or start caring for someone
[…]
•	if you have a child, or a child comes to stay with you
•	if any of your children go to live with someone else”.

45.	Mr Cooper submitted that these leaflets told the claimant to report the fact that the child had left her home.  He said that that fact was material and the claimant had a duty to disclose it.  As it was not disputed that the claimant did not disclose that material fact until the telephone review, Mr Cooper invited me to uphold the tribunal’s decision that the overpayment is recoverable.

Findings and reasons

Entitlement

46.	The tribunal was right in my judgment to find that the claimant did not have a child “placed” with her within the meaning of paragraph 2 of Schedule 1B to the regulations.  I so find for the following reasons.

47.	 Contrary to Mr Pinnock’s submissions, the test is not whether the claimant was a foster carer.  It is whether she had a child placed with her within the meaning of the Children Act 1989.

48.	 Mr Pinnock accepted that the interpretation he advanced did not give a meaning that was usable in the Children Act.  He accepted that, within the meaning of the Children Act, his client did not have a child placed with her when she did not have a child staying with her in discharge of the local authority’s functions under the Children Act.  But he invited me to construe paragraph 2 of Schedule 1B so as not to be confined to the meaning within the Children Act.

Meaning of “placed” within the meaning of the Children Act 1989

49.	I agree with both parties that “placed” within the meaning of the Children Act 1989 means 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.

50.	Section 20 of the Children Act 1989 imposes a duty on the local authority to provide accommodation in certain circumstances for a child in need.

51.	Section 22 of the act provides for the general duty of a local authority in relation to children looked after by the authority.  Subsections (1) and (2) provide—

“22  General duty of local authority in relation to children looked after by them
(1)     In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is—
(a)     in their care; or
(b)     provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 17, 23B and 24B.
(2)     In subsection (1) “accommodation” means accommodation which is provided for a continuous period of more than 24 hours.”.

52.	So “looked after” is defined in section 22 as being in the authority’s care or being provided with accommodation by the authority in exercise of some of its functions.

53.	Section 22A of the Children Act provides that—

“When a child is in the care of a local authority, it is their duty to provide the child with accommodation”.

54.	The authority has power under section 17(5) of the act to arrange for any person to act on its behalf in providing services which it is a function of the authority to provide by virtue of, among others, sections 20 and 22A to 22C.  Mr Pinnock did not seek to argue that his client’s case was helped by a distinction in section 22(1) between being in the authority’s care and being provided with accommodation by the authority.

55.	Section 22C provides for how looked after children are to be accommodated and maintained.  As at 19 July 2013 (the first day of the period in issue), it provided that—

“22C Ways in which looked after children are to be accommodated and maintained
(1)     This section applies where a local authority are looking after a child (“C”).
(2)     The local authority must make arrangements for C to live with a person who falls within subsection (3) (but subject to subsection (4)).
(3)     A person (“P”) falls within this subsection if—
(a)     P is a parent of C;
(b)     P is not a parent of C but has parental responsibility for C; or
(c)     in a case where C is in the care of the local authority and there was a residence order in force with respect to C immediately before the care order was made, P was a person in whose favour the residence order was made.
(4)     Subsection (2) does not require the local authority to make arrangements of the kind mentioned in that subsection if doing so—
(a)     would not be consistent with C's welfare; or
(b)     would not be reasonably practicable.
(5)     If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.
(6)     In subsection (5) “placement” means—
(a)     placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent;
(b)     placement with a local authority foster parent who does not fall within paragraph (a);
(c)     placement in a children's home in respect of which a person is registered under Part 2 of the Care Standards Act 2000; or
(d)     subject to section 22D, placement in accordance with other arrangements which comply with any regulations made for the purposes of this section.
(7)     In determining the most appropriate placement for C, the local authority must, subject to the other provisions of this Part (in particular, to their duties under section 22)—
(a)     give preference to a placement falling within paragraph (a) of subsection (6) over placements falling within the other paragraphs of that subsection;
(b)     comply, so far as is reasonably practicable in all the circumstances of C's case, with the requirements of subsection (8); and
(c)     comply with subsection (9) unless that is not reasonably practicable.
(8)     The local authority must ensure that the placement is such that—
(a)     it allows C to live near C's home;
(b)     it does not disrupt C's education or training;
(c)     if C has a sibling for whom the local authority are also providing accommodation, it enables C and the sibling to live together;
(d)     if C is disabled, the accommodation provided is suitable to C's particular needs.
(9)     The placement must be such that C is provided with accommodation within the local authority's area.
(10)	The local authority may determine—
(a)	the terms of any arrangements they make under subsection (2) in relation to C (including terms as to payment); and
(b)	the terms on which they place C with a local authority foster parent (including terms as to payment but subject to any order made under section 49 of the Children Act 2004).
(11)	The appropriate national authority may make regulations for, and in connection with, the purposes of this section.
(12)	In this Act “local authority foster parent” means a person who is approved as a local authority foster parent in accordance with regulations made by virtue of paragraph 12F of Schedule 2.”.

56.	Section 22C(2) requires the local authority to make arrangements for the child to “live with” a person.  Subsection (6)(b) refers to “placement with a local authority foster parent”.  Subsection (8)(a) refers to the placement allowing the child to “live” near his home.  And subsection (9) refers to the placement as being the provision of accommodation.  Taken together, these provisions mean in my judgment that the child has to be “living with” the claimant, or “provided with accommodation” by her, in order to be “placed” with her within the meaning of the Children Act.  If there is a distinction between “living with” and “provided with accommodation by”, it is not necessary on the facts of the present appeal to explore that distinction.

57.	No submissions were made to me as to whether a child living with the claimant, or provided with accommodation by her, would be in the authority’s “care” as mentioned in section 22(1)(a) as opposed to being “provided with accommodation by the authority” in exercise of some of its functions as mentioned in section 22(1)(b).  Submissions were made on the assumption that the situation for this appellant would fall within subsection (1)(b).  For a case falling within subsection (1)(b), I agree that section 22(2) requires the child to be provided with the accommodation for a continuous period of more than 24 hours in order for it to be a “placement”.  In any event, given that section 22C envisages the child living with someone, or being provided with accommodation by someone, in order for the child to be placed with that person, it seems unlikely to be satisfied by a period of less than 24 hours.  However, it is not necessary for me to decide that point.  Mr Pinnock did not suggest that the claimant had had a child placed with her “within the meaning of the Children Act” by having a child with her for less than 24 hours.

Claimant did not have a child placed with her within the meaning of the Children Act

58.	On the meaning of “placed” within the Children Act 1989, I accept the Secretary of State’s submission that it was open to the tribunal on the evidence to find that the claimant did not have a child placed with her for the period in issue.  I say that for the following reasons. 

59.	First, the claimant herself did not suggest otherwise to the tribunal.  It was open to the tribunal not to view her reference to “day care” or “respite care” as meaning that she had had a child accommodated with her for more than 24 hours, or living with her, in discharge of the local authority’s functions under the Children Act.  The evidence suggested that the claimant was aware of when a child was being placed with her in discharge of the local authority’s functions as opposed to her helping out others who had a child placed with them under those functions.  She herself had been the one to tell the person conducting the telephone review that she no longer had a child placed with her.

60.	Second, the submission from Citizen’s Advice and the letter from the council did mention that the claimant during this period gave respite care and day care.  It is not clear whether the council’s reference to day care in its letter was a reference to day care within the meaning of section 18 of the Children Act 1989 (which means provided “during the day”).  But both the letter and the submission accepted that the claimant did not have a “placement” with her for the period in issue.  They were framed in terms of the claimant’s help being provided to someone else with whom a child was placed in discharge of the local authority’s functions.

Can “placed” be construed more widely than having the meaning within the Children Act 1989?

61.	The next question is whether paragraph 2 of Schedule 1B can be construed as Mr Pinnock suggests so that “placed” is not limited to having the meaning within the Children Act 1989.

62.	I find that it cannot be so construed.  It is not ideal for the purposes of paragraph 2 of Schedule 1B that “placed” is not defined in the Children Act and that the definition of “placement” in section 22C(6) of that act includes the word “placement” in the definition (“placement” means “placement…”).  But paragraph 2 of Schedule 1B is not in my judgment sufficiently unclear when applied to the facts of this case to require going behind the meaning of “placed” within the Children Act.  Nor does that meaning produce a nonsense.  Whether or not the meaning of “placed” within the Children Act produces a result that is unsympathetic and troublesome, it is nevertheless workable and so is not a nonsense.

63.	Mr Pinnock argued that giving “placed” the meaning within the Children Act produces a chaotic result.  I disagree.  Regulation 4ZA(4) of the regulations ensures that, if the claimant has a child placed with her for even one period of 24 hours, she will be entitled to income support for the whole of the benefit week in which that period occurs.  This means that the result suggested by Mr Pinnock’s table would not arise.

64.	Even without regulation 4ZA(4), I doubt that I would be persuaded that any “chaotic” result should mean that paragraph 2 should be given a construction so far from its literal meaning.  I agree with Mr Cooper that, had the drafter intended the construction contended for by the claimant, the drafter could easily have drafted the provision in that way.

65.	Mr Cooper also argued that paragraph 2 of Schedule 1B is not irrational.  He based this on regulation 4ZA(4) and on his submission that it is rational to require the claimant to keep in touch via JSA with the world of work.  Mr Pinnock did not go so far as to argue that the provision was ultra vires for irrationality.  Without the benefit of full argument on irrationality, I will not determine whether or not paragraph 2 is ultra vires for irrationality.   This does not prevent that argument being raised in a future case.

66.	This is a case where I am asked to decide that the claimant had a child placed with her even when she had no child actually staying or living with her.  That is a clear distinction on which I can give the simple answer I have given above.  My answer above should not however be taken as deciding the meaning of “placed” in a more complex set of circumstances.  That will be for another case, and may need an examination of family caselaw on the meaning of “placed” in the Children Act.

Practical application of regulation 4ZA(4)

67.	Mr Pinnock asked me to find that the tribunal materially erred in law in failing, contrary to section 12(8)(a) of the Social Security Act 1998, to enquire whether the claimant had had a child stay with her for a period of 24 hours.

68.	I find that the tribunal did not err in law in failing to ask that question.  The claimant herself did not suggest to the tribunal that she had had a child placed with her.  The evidence provided on her behalf to the tribunal was that she gave respite care and day care.  That might without more be considered vague enough to encompass a period of 24 hours.  However, the letter from the commissioning body for the fostering, Solihull Metropolitan Borough Council, said (page 34)—

“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 reference to being “without a child in placement full time” suggested that the council did not consider the “respite and day care to support other foster carers” to be a “placement” in discharge of the council’s functions under the Children Act.  The reference to “other foster carers” also suggested that it was not the claimant but those carers she was helping who had a child placed with them in discharge of the council’s functions under the Children Act. 

69.	I find that the appeal did not therefore raise the question of whether regulation 4ZA(4) was met.  The tribunal did not err in law by failing to investigate it.

Recoverable overpayment

70.	I accept the Secretary of State’s submission that the tribunal did not err in law in deciding that there was a recoverable overpayment.  The leaflets the claimant received contained clear instructions that she had to report if “someone comes to live in your house, or someone leaves” or if “you stop or start caring for someone”.  I agree with the tribunal that the claimant was under a duty to report that the child she had had staying with her under foster care arrangements had left her home.  It was not disputed that she did not report that until the telephone review.  It was also not disputed that the failure to report it caused the overpayment.  The tribunal was therefore right to find that the conditions in section 71 were met.

71.	The only remaining question is whether the tribunal should have exercised a discretion to disapply section 71 on the grounds that it is unjust and unreasonable to apply it in the present case.

72.	My answer to that is a clear no.  Section 71 confers no such discretion.  The tribunal’s job was to decide whether the conditions in section 71 were met.  It could not simply decide that they were not met if the facts showed that they were.

73.	Deciding that the overpayment is recoverable is however different from actually recovering it.  There is nothing to stop the claimant or her representative asking the Secretary of State not to recover it or asking him to allow the claimant to pay in instalments.

Rachel Perez
Judge of the Upper Tribunal
1 June 2015