Child Disability Payment decision making guide

Error that leads to an overpayment

What is an error?

‘Error’ refers to a wide range of errors. It includes any circumstance where Social Security Scotland both:

  • makes a determination of entitlement that is not correct
  • which leads to an overpayment to the individual (CDP Reg 33(1)(b))

An error includes circumstances where a determination is made either of the following circumstances:

  • wrongly (CDP Reg 33(3)(a)(i))
  • correctly but is based upon incorrect information or an assumption that proves to be wrong (CDP Reg 33(3)(a)(ii)).

It also includes circumstances where a new determination has not been made after an assumption on which an earlier determination was made has proven to be wrong (CDP Regs, reg. 33(3)(b)).

An error includes an ‘official error’, which is:

  • an error made by Social Security Scotland or DWP
  • to which no one else materially contributed.

If the individual or anyone else is at least partly responsible for the error, then the error is not an ‘official error’.

Examples of official error include:

  • a court or tribunal ruling that Social Security Scotland has consistently misapplied the way that the eligibility criteria applies to people with a specific care or mobility need
  • an IT issue within DWP or Social Security Scotland that causes an individual to be underpaid or overpaid
  • Social Security Scotland mistakenly determines an application for CDP against historic eligibility criteria rather than current criteria
  • misapplying the correct age, residence and presence, backwards and forwards eligibility criteria to the facts of the case
  • determining that an individual is either entitled or not entitled in the face of obvious, contradictory supporting information
  • making a determination that is so unreasonable, no reasonable person could have made the same determination (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223)

The overpayment may happen if the individual is given either:

  • an award of CDP to which they were not entitled (CDP Regs, reg. 33(1)(b)(i))
  • a higher award than that to which they were entitled (CDP Regs, reg. 33(1)(b)(ii))

Correcting an error that leads to an overpayment

A case manager must conduct an unscheduled review (legally known as a determination without application) to correct an error (including an official error) that results in an overpayment (CDP Regs, reg. 33(1)).

Before correcting an error, case managers must make sure that there has not been any of the following:

  • request for a re-determination (CDP Regs, reg. 33(1)(c))
  • request for an appeal (CDP Regs, reg. 33(1)(d))
  • fraud investigation started

The case manager should contact the appropriate team to establish this:

  • re-determinations team
  • appeals team
  • fraud team.

If a re-determination or appeal has been requested, but not yet been determined, then the case manager cannot make a determination without application.

Completing a determination without application involves correcting previous errors in order to work out the individual’s correct entitlement to CDP. This involves:

  • considering all the entitlement criteria, including applying the backwards and forwards test. The chapter on Backwards and Forwards Test explains the tests in more detail.
  • working out when the change in entitlement should begin.

The case manager may use any or all of the following when making completing the determination without application:

• information provided in the application that led to the original determination (CDP Regs, reg. 33(2)(a)(i))

• any other information obtained with that application (CDP Regs, reg. 33(2)(a)(ii))

• any other information that they have obtained in connection with the individual’s entitlement to CDP (3 CDP Regs, reg. 33(2)(b))

• any other information available to them that is relevant to their consideration of whether the individual is entitled to CDP (CDP Regs, reg. 33(2)(c)).

When change in entitlement begins

The change in entitlement begins on the date the previous determination took effect (CDP Regs, reg. 29(1)(c)) where all of the following apply:

  • the original determination contains an error (including an official error)
  • the individual is now entitled to a lower (or no) award as result of the new determination
  • the individual has been overpaid as a result of the previous determination.

Case managers may choose a later date for the change in entitlement to take effect from if (in all the circumstances) it would be unjust not to do so (CDP Regs, reg. 29(2)).

Case managers should seek advice through a case discussion if they think there are special circumstances that justify fixing a later date for the change in entitlement to begin.

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