I have a client whose husband was murdered back in 2003. She has two children for whom she was reciving payments through income support pruior to April 2004. They each received personal injuries compenastion of @ £20k. Their mother did not let the DWP know. Now they have stopped her income support entitlement for her children. She has been advised to claim CTC for them (there is no capital left) however it looks as though there will be large overpayments of income support. Has anyone got any ideas?

See if the payments fell to be disregarded under paras 12, 12A, 44 or 45 of the IS Gen Regs.

Who held the money? If it was paid to the mother on behalf of the children could you argue that it was being held in trust for them, they did not have access to it, and it should therefore be ignored as the childrens' capital? It wouldn't count as her capital as she was not the beneficial owner.

Unfortunately the mother did not hold the capital it was not in any kind of trust. The payments went directly to the children. The capital has all been spent.

ouchy.

did the mother deal with CICA herself, or was she represented? if she was represented, she should have been advised about PI Trust & effect of capital on benefits.....i leave you to finish the thought there.

if she wasnt' represented and dealt withit herself, then it's too late IMHO to put the genie back in teh bottle (or the money back in the trust) as it's been spent

and mother is presumably in some difficulty if she has dissipated the children's money on stuff not for them..... but that's a whole other ball game about which i know very little....

If the IS rules offer no defence to recoverability you may have to fall back on asking JCP to use their discretion not to recover. There are clear grounds for this since, had the client claimed CTC at the time, she would have received exactly the same amounts and the capital would have had no effect. So no net overpayment from public purse.

They will still be unwilling, but you can now cite:
Regina v Rajeshree Parmer <2006> EWCA Crim 979
(see Rightsnet news story 11.1.08 - can't do the link) in support - a criminal case, but should be persuasive.

Richard Atkinson