I need an opinion on this.

Claimant is on IS, her children are taken into care by Social Services in Feb 07. They are placed with foster parents provided by an agency. She is told verbally and in writing that this is a temporary arrangement, in order for her to get her life on track. However at the end of Nov 07, is told that this is a permanent arrangement. She was getting IS for the children (pre-tax credit). Should IS for the children (and CB, DLA for child) be removed as soon as the children are taken from her or do they count as being in her household for a period (as the understanding was that the arrangement was temporary).

I need a second opinion re the following aspect of the same case:
As client failed to notify the DWP of children being taken into care, an overpayment resulted. Client states that Social Worker told her on doorstep as the children were being taken, that he would contact the DWP himself to notify them of being taken into care. However, the Social Worker failed to notify them. Did the Social Worker have a duty to report the change of circs, (under Reg 32 C&P Regs) and if so does the claimant still have the duty to report. When cl discovered they kept paying her, she was under the impression that they kept paying her because she believed the arrangement was temp and children were going to resume living with her. Cl suffers severe depression and drug user. Cl has appealed the overpayment and is awaiting tribunal hearing date.

The temporary absence provisions are disapplied where a child is being looked after by the local authority under The Children Act 1989 except when during that period those days the child actually lives with the claimant.

The social worker is not under any duty to report changes of circumstances to the DWP. That duty falls on the claimant or the claimant’s appointee. The duty is absolute if the type of change required to be reported has been clearly notified to the claimant and is unambiguous in its instruction.

If the duty is absolute then her state of mind or beliefs are not relevant. If the duty is not absolute then the test of whether it was reasonable for her to disclose applies. In these kinds of cases it is often best to lodge an appeal and get the papers because the DWP has to evidence the fact that it has provided unambiguous instructions (or indeed any instructions at all) as to what changes the claimant needs to disclose.

If she can provide evidence that has a good chance of standing up in a court of law as to the conversation with the social worker then she may be able to sue the LA for damages.

Many thanks for that, Nevip. That reassures my understanding of the overpayment issue.

Am I right in assuming that the foster care, although provided via an agency would still be classed as being looked after by the local authority under the Children's Act, as the children were placed there by the local authority?