Child Disability Payment decision making guide
Official error leading to an underpayment
Official error is a type of error.
An official error is defined as:
- an error made by Social Security Scotland or DWP
- to which no one else materially contributed (CDP Regs, reg. 32(3))
If the individual or anyone else is at least partly responsible for the error, then the error is not an ‘official error’.
An official error creating an underpayment results from a determination of entitlement to CDP which either:
- does not award either component or both components of CDP to an individual to which they are entitled (CDP Regs, reg. 32(1)(b)(i))
- a lower rate of CDP than they are entitled to (CDP Regs, reg. 32(1)(b)(ii)).
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).
This list is not exhaustive.
If information becomes available that, had it been available at the time of the original determination, would have resulted in the Case Manager making a different determination, this would not be considered an official error but could be considered ignorance of a material fact.
Maria is six and has Attention Deficit Hyperactivity Disorder. Her father regularly needs to settle her at night for at least half an hour to an hour. This is because she has trouble getting to sleep. She also frequently wakes up during the night and needs to be settled again. The case manager determines that Maria is not entitled to the care component of CDP as they did not consider she needed more attention at night than another child the same age who doesn’t have ADHD.
This is because the case manager did not consider needing to be settled would meet the definition of prolonged attention.
Following a scheduled review, it becomes apparent that an official error has occurred.
This is because ‘prolonged’ means at least twenty minutes. Maria requires at least half an hour to settle when she is put to bed and this is frequently repeated during the night. This means the case manager misapplied the care component criteria and that Maria is entitled to the middle rate of the care component of CDP. A determination without application must be made to correct this underpayment. The case manager backdates the award to the date of the earlier (incorrect) determination.
Amy is 8 years old and has ASD. Her Mother made an application on her behalf for CDP on 2nd November. The Case Manager made a determination that Amy is entitled to the middle rate of the care component and no mobility.
On 10th December, Amy’s Mother calls Social Security Scotland to notify them that she has changed address. In this call, she mentions that Amy requires guidance and supervision to move around outdoors as she is unable to cross a busy road safely by herself. Another Case Manager reviews the supporting information that was available at the time of the original application and realises that there was information available about this that the Case Manager did not fully consider. This was because they did not feel that Amy’s mobility needs were substantially in excess of the normal requirements of a child of the same age, resulting in an incorrect determination of entitlement. This is an official error.
In order to rectify this, the Case Manager makes a Determination Without Application of Amy’s entitlement to the lower rate of the mobility component and awards this from 2nd November, the date of the original application.
Liam’s Father made an application for CDP on his behalf on 1 October. Liam was awarded the middle rate of the care component with no mobility based on Liam’s day time needs. Following a scheduled review, the Case Manager reviewed the supporting information that had been included at the time of the application and decided that Liam’s night time needs had not been fully considered by the previous Case Manager and they were substantially in excess of those required by a child of the same age. The Case Manager determined that Liam is entitled to the highest rate of the care component. The original determination was official error as not all of the information that Liam’s Father supplied was taken into account by the previous Case Manager and had caused an underpayment of the care component.
Liam’s Father has also provided further information at the scheduled review that was not included with the original application. This information pre-dated the original determination and detailed that Liam required supervision whilst outside that was substantially in excess of those required by a child of the same age.
The Case Manager decided that Liam was entitled to the lowest rate of the Mobility component. Therefore the original determination was also made in ignorance of a material fact and caused the mobility component to be underpaid.
To correct the official error, the Case Manager should make a determination without application to award high rate care and no mobility from the date of the initial determination (01 Oct). As the original determination was also made in ignorance of a material fact, they should award high rate care and low rate mobility from the date at which the determination is made to correct the original determination.
The eligibility criteria for CDP is amended with effect from 17 January. Nell’s mother makes an application for CDP on 9 April, which is considered by a case manager on 26 April. The case manager mistakenly applies the eligibility criteria that pre-date 17 January, refusing Nell both the care and mobility components at any rate.
Had the case manager correctly applied the eligibility criteria, Niall should have been entitled to the lower rate of the mobility component. Nell’s mother takes the notice of determination to her local Citizens Advice Bureau. The adviser notices that the case manager has clearly applied the wrong test and notifies Social Security Scotland of this on 10 May.
This should be treated an official error as Social Security Scotland alone is responsible for the error which has caused Nell to be underpaid.
Correcting an official error that causes an underpayment
A case manager must conduct an unscheduled review (legally known as a determination without application) to correct an official error that results in an underpayment (CDP Regs, reg. 32(1)).
Before correcting an error, case managers must make sure that there has not been any of the following:
- • request for a re-determination (1 CDP Regs, reg. 32(1)(c))
- • request for an appeal (CDP Regs, reg. 32(1)(d))
The case manager should contact the appropriate team to establish this:
- re-determinations team
- appeals team
- fraud team.
If the 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. 32(2)(a)(i))
- any other information obtained with that application (CDP Regs, reg. 32(2)(a)(ii))
- any other information that they have obtained in connection with the individual’s entitlement to CDP (CDP Regs, reg. 32(2)(b)).
When change in entitlement begins
The change in entitlement begins on the date the previous determination took effect (CDP Regs, reg. 28(1)(c)) where all of the following apply:
• the original determination involved making an official error
• the individual is now entitled to a higher award as a result of the new determination
• the individual has been underpaid as a result.
Case managers may choose an earlier date for the new determination to take effect from if (in all the circumstances) it would be unjust not to do so (CDP Regs, reg. 28(2)).
A case manager made a determination of entitlement that Stephen is entitled to the middle rate care component of CDP. Months later, Stephen’s social worker finds out about this and is surprised that Stephen is not receiving the highest rate care component of CDP. The reasoning in the notice of determination of entitlement said that Stephen’s night-time care needs are not substantially more than what someone his age normally requires.
After speaking to the social worker, Stephen’s parent tells Social Security Scotland that the she now believes the case manager was wrong to make this conclusion based on the- supporting information. The case manager makes an unscheduled review. The unscheduled review shows that an error was made when making the last determination of entitlement, resulting in Stephen being given a lower award than what he should have.
The case manager had not acknowledged some information where Stephen’s parent had mentioned the frequency of his care needs in the night-time and that they would have met criteria for the night time needs.
The case manager makes a determination without application and determines that Stephen is entitled to the highest rate care component of CDP. This is because an official error had been made where the case manager had not fully considered information that suggested Stephen had frequent needs at night. Entitlement to the higher award begins on the date of the previous determination of entitlement.
Finlay is 14 years old and has bronchiectasis. He needs oxygen throughout the day.
An application for CDP for him is made on 1 April. Social Security Scotland makes a determination on 05 April that no award is due on the basis that he does not meet the eligibility criteria.
On 10 June that year, Finlay’s carer makes another application for CDP. It states Finlay has had the same needs for the past year.
The case manager:
- notices that there was a similar, unsuccessful application recently
- looks at the documents.
The previous case manager had not taken into account that Finlay:
- was breathless at rest
- required oxygen 24 hours a day.
This means Finlay needs help to move around during the day. The Case manager:
- decides that the earlier determination was incorrect
- decides that Finlay should have been awarded the middle rate of the care component.
- makes a determination without application to correct the error.
This was an official error as the determination was procedurally made correctly, but it came to light that not all of the information that was supplied was taken into account. This has caused an underpayment of CDP. The new determination awards the middle rate care component. The change in entitlement begins on the date that the original determination took effect.
Case managers should seek advice if they think there are special circumstances that justify fixing an earlier date from when entitlement will begin.
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)).