Child Disability Payment decision making guide

Liability to repay an overpayment

Generally

If an individual is given assistance in error, the individual is liable to repay that assistance (s. 63(1) of the 2018 Act)

However, an individual is not liable to repay the assistance if the error is neither:

  • the individual’s fault
  • the kind of error that an individual could reasonably be expected to notice (s. 64(1) of the 2018 Act).

An error may result because the individual has failed to supply information about their circumstances that might have resulted in a different determination. This could be because they may have:

  • deliberately supplied information that they know to be incorrect or false
  • accidentally failed to supply information.

The information could be contained or missing from on an application form, or a piece of supporting information (such as a report from a medical professional).

It is clear the error is not the individual’s fault when an overpayment as a result of official error has occurred. The individual may still be liable if they could reasonably be expected to have noticed the error.

This means deciding if a hypothetical person, acting reasonably, could be expected to have noticed the error. It is important to note that it does not mean deciding if the individual in the immediate case could reasonably be expected to notice the error (i.e. it is an objective test).

An overpayment error might need to be very large and/or very obvious to conclude that an individual could reasonably be expected to have noticed it.

Case managers should refer cases to a disability assistance manager for a second opinion where they conclude that one of the following applies:

  • • the error was the individual’s fault
  • • the error was one that a person might reasonably have been expected to notice the error.

If the Disability Assistance Manager agrees with the case manager, the case manager should both:

  • refer the case to the Interventions Team
  • make a determination without application to address the error.

If the case manager and disability assistance manager conclude that an individual could not reasonably have been expected to notice the error, then the case manager:

  • makes a determination without application to correct the error
  • classifies the overpayment as an error and refer it to the Interventions Team.

Split recovery of an overpayment liability

An overpayment may increase after the point at which the individual provides information due to processing times until a new determination is made. However, Social Security Scotland will not seek to recover that part of the overpayment which came after the required information was provided.

This happens where all of the following apply:

  • an individual provides information which Social Security Scotland did not have before
  • the information provided would reduce their award or end entitlement altogether
  • this amounts to an error and generates an overpayment which the client is liable to repay to Social Security Scotland
  • processing times mean a further overpayment accrues after the individual provides the information. This is due to time taken by Social Security Scotland to process the change

This means the overpayment must be broken down into two parts. Whilst the client is liable for the overpayment, they may not be liable to repay some of it. This is known as a ‘split liability’.

The part for which we will seek to recover overpaid assistance:

  • accrues from the day that the individual should have notified Social Security Scotland of the change of circumstances
  • ends on the day the individual provides the information required to make the new determination

The part for which we will not seek to recover the overpaid assistance:

  • starts the day after they provide the information required to make the new determination
  • ends on the day the new determination is processed.

The case manager records the date when the individual provides the information needed to make the new determination. Social Security Scotland will:

  • seek to recover any assistance overpaid as a result of the error before the date the individual provides the information
  • not seek to recover any assistance that is overpaid as a result of the error after the date the individual provides the information.

Calculating the value of an overpayment

The overall value of the overpayment is the difference between the payment:

  • actually made
  • that would have been made if there had not been an error (s. 63(2) of the 2018 Act).

The case manager should make the calculation to separate the overpayment into its two parts. They do this by deducting from the overpayment any amount that accrued after the individual provides the information required to make the determination. What is left is the value of assistance that the individual must repay. For more information on split recovery of an overpayment liability, see ‘Split recovery of an overpayment liability’ above.

The case manager should:

  • calculate the overall value of the overpayment
  • calculate the part which is to be recovered
  • refer the case to the Interventions Team.

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