Child Disability Payment decision making guide
Ignorance of a material fact
What is ignorance of a material fact?
Ignorance of a material fact is not an error.
This guidance only applies where:
- there has been a determination that has been incorrect
- this has led to an underpayment
- but was not caused by official error.
A determination made in ignorance of a material fact covers instances where all of the following apply:
- a determination was made correctly at the time based on the information held
- the information held at the time was accurate
- other information comes to light later which would have resulted in an alternative outcome.
An alternative outcome is one that:
- results an alteration to the component or rate of CDP the individual is entitled to, or
- means individual is no longer entitled to CDP (CDP Regs, reg. 31(a)).
A material fact is therefore one that would make a difference to the level of CDP that the individual is entitled to(CIS/3655/2007 at para. 40).
The fact must exist at the time the original determination is made.
Jun is 3 and has haemophilia. The case manager determines that Jun is entitled to the lowest rate of the care component. A few months later, Jun’s parent realised they had not included some key information about Jun’s care needs in relation to his haemophilia.
The missing supporting information provides:
- additional care needs, including how frequently Jun experiences bleeding throughout the day, for which he requires attention
- further details of his medication.
This additional information means that:
- Jun should be entitled to the middle rate of the care component
- an underpayment has occurred due to absence of material facts. . A determination without application must be made to correct this underpayment. Jun’s increase in entitlement begins on the date of the new determination.
A case manager made a determination of entitlement that Sandy is entitled to the middle-rate care component of CDP. When applying for CDP, Sandy’s parent did not tell Social Security Scotland about any care needs that were met by staff in Sandy’s school. This was because Sandy’s parent mistakenly thought that only Sandy’s care needs at home were relevant.
Months later, Sandy’s parent realises the mistake and tells Social Security Scotland about Sandy’s care needs being met by staff in Sandy’s school. The case manager makes an unscheduled review. The new information pre-dates the last determination of entitlement and contains new facts about the impact of the individual’s condition. The result is that the information taken as a whole suggests that Sandy should be entitled to the highest rate of the care component from the date the original determination was made. The case manager should correct the determination on the basis that it was made in ignorance of a material fact, causing the individual to be underpaid.
Mo is 6 and his parent applies for CDP on 19 March. The application is accompanied by a three-page letter from Mo’s teacher. The information leads the case manager to make a determination that Mo is entitled to the lowest rate of the care component only from 19 March.
Two months later, the Social Security Scotland mailroom finds that a page of the letter from Mo’s teacher had not been scanned correctly. The additional information details the impact of Mo’s condition on care needed at school, suggesting that Mo has additional care needs and requires more care than children of the same age at school. The result is that Mo should have been entitled to the middle rate of the care component.
As the determination was made in ignorance of a material fact and caused the individual to be underpaid, the case manager should correct the determination.
Opinions should be distinguished from facts. There is a difference between a decision made on an incorrect factual basis (which would trigger a determination without application) and one which someone else looking at the same factual basis thinks should have led to a different outcome (which would not trigger a determination without application) (CDLA/2160/03 at para. 11).
Ciaron’s father applies for CDP on 6 June. On the application form, it is noted that Ciaron has ADHD, anxiety and asthma. Ciaron’s supporting information noted that Ciaron’s medication had been less than beneficial. The practitioner noted that Ciaron enjoyed focusing on their hobbies in familiar environments, which included jewellery making, but required support from their parents to complete any unfamiliar journeys or in unfamiliar environments. It was also noted that Ciaron was able to undertake part-time work as an apprentice jeweller.
The case manager makes a determination on 9 July that Ciaron is entitled to the enhanced rate of the care component of CDP from 6 June.
In December, Social Security Scotland receives information that Ciaron is currently working part-time. The nature of the work is said to be completely inconsistent with the impact of Ciaron’s condition. A new case manager does not see that the consultation report notes Ciaron works part-time. They believe that the original determination was made in ignorance of a material fact.
Whilst the new case manager may disagree with the award the original case manager made, there is no reason to suppose that the original determination was made in ignorance of a material fact.
Correcting a determination made in ignorance of a material fact
A case manager must carry out an unscheduled review (legally known as a determination without application) when both:
- a previous determination was made in ignorance of a material fact
- the material fact being known either:
- may result in an alteration to the component or rate of Child Disability Payment the individual is entitled to, or
- is likely to mean that the individual is no longer entitled to Child Disability Payment (CDP Regs, reg. 31(a)).
Completing a determination without application involves correcting previous determinations in order to work out the individual’s correct entitlement to CDP. This involves both:
- consideration of all entitlement criteria, including applying the backwards and forwards test
- working out when the change in entitlement should begin.
This should be approached as if making a determination for the first time with full consideration given to the relevant chapters of the DMG.
When increase in entitlement begins
The increase in entitlement begins on the date of the new determination (CDP Regs, reg. 28(1)(b)(ii)) where all of the following apply:
- the original determination was made in ignorance of a material fact
- the individual is now entitled to a higher award as a result of the new determination
- the individual has been underpaid as a result.
A case manager may fix an earlier date for entitlement to begin from if, in all the circumstances, it would be unjust not to do so (CDP Regs, reg. 28(2)). In other words, the case manager may fix an earlier date if fairness requires it.
Case managers should seek advice if they think there are special circumstances that justify fixing an earlier start date.
The individual will be paid the difference between any CDP already paid under the original determination and any CDP due under the new determination (if both determinations relate to the same period of time) (CDP Regs, reg. 28(2A))