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 ADP the individual is entitled to, or
- means individual is no longer entitled to ADP (ADP Regs, reg. 48(a))
A material fact is therefore one that would make a difference to the level of ADP that the individual is entitled to (CIS/3655/2007 at para. 40).
The fact must exist at the time the original determination is made.
Example: supporting information not available to original case manager
Emma applies for ADP on 24 November 2022. On the basis of the information in the application, a case manager makes a determination on 21 December that Emma is entitled to the standard rate of the daily living component only from 24 November.
In March 2023, Emma submits a copy of an occupational therapy report, dated 11 November 2022. The report notes that Emma requires full-time care from their partner, in addition to having very restricted mobility.
The new piece of supporting 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 Emma should be entitled to the enhanced rate of the daily living and mobility components from 24 November 2022. 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.
Example: supporting information with pages missing
Mo applies for ADP on 19 March. The application is accompanied by a three-page letter from Mo’s GP. The information leads the case manager to make a determination that Mo is entitled to the standard rate of the mobility component, only from 19 March.
Two months later, the Social Security Scotland mailroom finds that a page of the letter from Mo’s GP had not been scanned correctly. The additional information details the impact of Mo’s condition on daily living, suggesting that Mo would score points for a number of daily living activities. The result is that Mo should have been entitled to the standard rate of the daily living 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).
Example: difference between ignorance of a material fact and opinion
Kerrin applies for ADP on 6 June. On the application form, it is noted that Kerrin has arthritis, ankylosing spondylitis and asthma. Kerrin takes part in a consultation with a practitioner who noted that Kerrin’s medication had been less than beneficial. The practitioner noted that Kerrin was determined to try and keep themselves mobile but couldn’t stand and then move more than 20 metres, aided or unaided. It was also noted that Kerrin was still able to undertake part-time work as a cleaner.
The case manager makes a determination on 9 July that Kerrin is entitled to the enhanced rate of the mobility component of ADP from 6 June.
In December, Social Security Scotland receives information that Kerrin is currently working part-time. The nature of the work is said to be completely inconsistent with the impact of Kerrin’s condition. A new case manager does not see that the consultation report notes Kerrin 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 Adult Disability Payment the individual is entitled to, or
- is likely to mean that the individual is no longer entitled to Adult Disability Payment (ADP Regs, reg. 48(a)).
Completing a determination without application involves correcting previous determinations in order to work out the individual’s correct entitlement to ADP. 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. [‘Backwards and Forwards test’, ‘How to Choose a Descriptor’, ‘Daily Living Component Introduction’, ‘Mobility Component Introduction’ and ‘Principles of Decision Making’]
When increase in entitlement begins
The increase in entitlement begins on the date of the new determination (ADP Regs, reg. 45(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 (ADP Regs, reg. 45(2)). In other words, the case manager may fix an earlier date if fairness requires it.
The individual will be paid the difference between any ADP already paid under the original determination and any ADP due under the new determination (if both determinations relate to the same period of time) (ADP Regs, reg. 45(4)).