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 (ADP Regs, reg. 50(1)(b))
An error includes circumstances where a determination is made either of the following circumstances:
- wrongly (ADP Regs, reg. 50(3)(a)(i))
- correctly but is based upon incorrect information or an assumption that proves to be wrong (ADP Regs, reg. 50(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 (ADP Regs, reg. 50(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 daily living or mobility need
- an IT issue within DWP or Social Security Scotland that causes an individual to be underpaid or overpaid 3
- Social Security Scotland mistakenly determines an application for ADP 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 ADP to which they were not entitled (ADP Regs, reg. 50(1)(b)(i))
- a higher award than that to which they were entitled (ADP Regs, reg. 50(1)(b)(ii))
Example: incorrect information
Jas makes an application for ADP on 9 June. Social Security Scotland gathers supporting information on Jas’ behalf from his consultant. The consultant completes the report and the case manager makes a determination that Jas is entitled to the enhanced rate of the daily living component and standard rate of the mobility component.
Some months later, Jas’ consultant contacts Social Security Scotland to explain that there has been an administrative error. The report provided was about another patient with a similar name and same date of birth. They provide an updated report with the correct information, which means that Jas should have been paid the standard rate of the daily living and mobility components.
The original determination was made correctly but on the basis of incorrect information, which amounts to an error leading to an overpayment of ADP.
Example: entitlement transfers from DWP to Social Security Scotland at wrong rate
Jessica was entitled to PIP at the standard rate of the daily living component only. She is notified that her payments will be transferred to Social Security Scotland. Her last payment of PIP will be on 10 March, with her entitlement to ADP commencing the following day.
Due to an IT error by DWP, Social Security Scotland is informed that Jessica is entitled to the enhanced rate of the daily living component only. Social Security Scotland therefore makes a determination that Jessica is entitled to the enhanced rate of the daily living component of ADP from 11 March.
Jessica contacts Social Security Scotland on 11 April to say that she should have been paid the standard rate of the daily living component. She also supplies a copy of her most recent award letter from DWP. Social Security Scotland has overpaid Jessica as a result and this amounts to an official error
Example: information that has been altered
Ru makes an application for ADP on 14 September. When submitting the application to Social Security Scotland, Ru provides a copy of a social work assessment. The information suggests that Ru lives in a heavily adapted property as a result of their needs, in addition to requiring the use of a powered wheelchair to move any distance. The case manager makes a determination that Ru is entitled to the enhanced rate of both daily living and mobility components, relying upon the supporting information.
During Ru’s next scheduled review, another case manager seeks supporting information on their behalf from the local authority social work team. The information provided includes a copy of the previous report. There are discrepancies between the copy that Ru provided and the copy from the local authority that suggests the original report has been altered.
Upon further investigation, it becomes clear that the original report would support an award of the enhanced rate of the daily living component only. The original determination was made correctly but relied upon information provided which was incorrect at the time. This is an error which has led to an overpayment of ADP
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 (ADP Regs, reg. 50(1)).
Before correcting an error, case managers must make sure that there has not been any of the following:
- request for a re-determination (ADP Regs, reg. 50(1)(c))
- request for an appeal (ADP Regs, reg. 50(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 ADP. This involves:
- considering all the entitlement criteria, including applying the backwards and forwards test. The chapter on the 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 (ADP Regs, reg. 50(2)(a)(i))
- any other information obtained with that application (ADP Regs, reg. 50(2)(a)(ii))
- any other information that they have obtained in connection with the individual’s entitlement to ADP (ADP Regs, reg. 50(2)(b))
- any other information available to them that is relevant to their consideration of whether the individual is entitled to ADP (ADP Regs, reg. 50(2)(c)).
When change in entitlement begins
The change in entitlement begins on the date the previous determination took effect (ADP Regs, reg. 46(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 (ADP Regs, reg. 46(2)).