Child Disability Payment decision making guide
Types of decision
The decisions that case managers make can be described are:
- ‘process decisions’
- ‘determinations of entitlement’.
Process decisions
A process decision is a decision about whether a procedural requirement is met. The procedural relate to:
- applying for CDP
- determining entitlement to CDP
- carrying out a re-determination for CDP
- appealing a determination of entitlement for CDP.
An example of a procedural rule is one about requests for a re-determination of a determination of entitlement to CDP. They must be made within 42 days from the date the individual is informed of the determination (CDP Regs, reg 37(1)). Another procedural rule is that requests for a re-determination can be made after 42 days but only if the individual has a ‘good reason’ for not requesting a re-determination sooner and the request was made not more than one year after the individual was given notice of the determination (SS Act 2018, s41(4)).
Determination of entitlement
When Social Security Scotland decide the outcome of an application for assistance or of a determination without application, this is called a determination of entitlement. If a Tribunal or Court decides what assistance an individual is entitled to, this is also called a determination of entitlement (SS Act 2018, s50 (Decisions comprising determination)).
The determination will always include a decision about both:
- whether or not the individual satisfies the eligibility rules for CDP
- what components of CDP and at what rates the individual is entitled to, if these rules are satisfied.
Findings of fact and conclusions of law
The decision-making process for determining entitlement to CDP will involve making a series of smaller decisions. These allow the case manager to make an overall decision on entitlement. These smaller decisions are either:
- a ‘finding of fact’
- a ‘conclusion of law’.
A finding of fact is a decision that a factual circumstance is accepted to be true. This is based on the available supporting information. For example, a case manager could accept as facts that:
- the individual has a physical disability
- the disability prevents the individual from being able to prepare a cooked main meal for themselves if they have the ingredients.
Case managers must look at all the available supporting information to establish the facts.
Case managers may be unable to make a decision straight away because there is insufficient supporting information. In this case, they will need to work with the individual to gather more supporting information.
Case managers must make findings of fact on ‘the balance of probabilities’. This means that a factual circumstance must be accepted as true if evidence shows that it is more likely than not that it occurred.
The ‘balance of probabilities’ is an easier test to meet than ‘beyond reasonable doubt’ which is the standard test for finding facts in criminal trials. However, it does not mean that the individual must be given the benefit of the doubt if there is not sufficient supporting information.
Example: A case manager works with the individual to gather additional supporting information
Sofia is 9 when she and her family move from Latvia to Scotland. Sophia is dyslexic and may have autism though she does not have a formal diagnosis. Sofia meets the residence and presence conditions to be entitled to CDP. However the circumstances surrounding her family’s move to Scotland mean Sofia’s mother does not have access to any supporting information from a professional. She provides a detailed explanation of Sofia’s needs in the application form.
The case manager starts from a position of trust and does not doubt the reasons why no supporting information is available. However, there is not enough information about Sofia’s needs for the case manager to make a determination of entitlement on the balance of probabilities.
The case manager works with Sofia’s mother to gather more supporting information. This new information is enough to allow the case manager to make a decision based on the balance of probabilities.
The case manager reviews all the supporting information and determines that Sofia is not entitled to any component of CDP. This is because, while she requires attention and supervision during the day, it is not more than is reasonably required for someone Sofia’s age without a disability.
There are cases with contradictory supporting information. With these, case managers should decide whether there is enough supporting information in favour of one finding of fact over another.
Case managers may find that there is not enough supporting information to satisfy them that a circumstance actually occurred one way or the other. In this case, a case manager cannot yet make a determination that the individual is entitled to CDP because there is not enough information for a case manager to make a determination. The case manager should follow the ‘collaborative process for gathering supporting information’.
Conclusions of law
A conclusion of law is a decision about how a rule applies to the individual’s case, having regard to the accepted findings of fact.
Example: A conclusion of law
Mhari is 4 when her fathers apply for CDP. A GP provides supporting information in the form of a medical report about Mhari which provides information about her needs. The information in the report informs the case manager that Mhari has spina bifida. She must use a catheter and requires assistance to empty the catheter every two to three hours each day. These are findings of fact.
The assistance Mhari requires to empty the catheter is attention to her bodily functions. A qualifying criterion for the lowest rate of the care component of CDP is that the individual is so severely physically or mentally disabled that they require attention from another person for a ‘significant portion of the day’.
The case manager considers how much time needs to be taken up caring for the individual for it to amount to a ‘significant portion of the day’. Using the guidance, the case manager concludes that the time taken up each day to care for Mhairi comes within the range of care-giving that would be regarded as taking up a ‘significant portion of the day’ for the purpose of this rule. This conclusion by the case manager means that Mhari is entitled to the lowest rate of the care component of CDP. The decision that Mhari requires care for ‘a significant portion of the day’ is a ‘conclusion of law’ because it is a decision about how a legal rule applies to findings of fact.