Setting a later start date to entitlement when a change in an individual’s condition and needs leads to a lower award or the end of the award

A case manager may set a later start date for the change in entitlement to begin if they consider it would be unjust not to do so. The case manager may apply a later start date for the change in entitlement to begin (Regulation 46(2) of the ADP Regs 2022)

Case managers should only consider applying a later start date if entitlement would otherwise begin on the date that the individual should have reported the change. [LINK to paragraph 32]

In such cases, the individual will have been overpaid. Case managers need to consider whether the individual is actually liable to repay the overpayment. Individuals are only liable to repay overpayments if the error either:

• was the individual’s fault or
• was one that an individual in their position could reasonably be expected to notice(S. 63(1) and S. 64(1) of the 2018 Act)

An error is the fault of the individual if it was caused by them: failing to report a change of circumstances that they were required to report or causing another person to do this(S. 64(2) of the Social Security Scotland 2018 Act)

For example: Edith has been receiving the standard rate of the mobility component of ADP for mobility problems due to osteoarthritis in her right knee. She has a knee replacement operation, and after her recovery from the operation goes well, she notices she is able to walk much further than she could before. She decides not to notify Social Security Scotland.

A case manager undertakes a scheduled review of Edith 6 months later and determines that she is no longer entitled to ADP. Her entitlement to the mobility component of ADP stops on the date Edith ought to have notified Social Security Scotland of the change. This is the date by which it is reasonable to expect that Edith was aware of the change. . This means Edith has been overpaid and may be liable to repay this.

It will only be in exceptional circumstances that fairness would require the case manager to set a later award. This would be where (even though the individual knowingly failed to report the change): exceptional circumstances meant that they were unable to report the change. (Regulation 46(2) of the ADP Regs 2022)

For example: a person takes advantage of a vulnerable individual by:

• benefitting from the individual’s award
• telling the individual not to tell Social Security Scotland about a change of circumstances so that the person would continue to benefit from a higher award.