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 (ADP Regs, reg. 49(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 ADP which either:
- does not award either component or both components of ADP to an individual to which they are entitled (ADP Regs, reg. 49(1)(b)(i))
- a lower rate of ADP than they are entitled to (ADP Regs, reg. 49(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 daily living 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 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).
This list is not exhaustive.
Example: Upper Tribunal for Scotland rules Social Security Scotland has consistently misapplied specific eligibility criteria
Hugo lives alone and has agoraphobia and severe social anxiety. Hugo applies for ADP on 22 July. Hugo is able to speak to his GP and counsellor on the phone but engaging with anyone else causes him extreme distress. The case manager determines that he is not entitled to the daily living component, as he scores 2 points for activity 9(b). The case manager arrives at this conclusion by following decision-making guidance on the application of activity 9.
The case manager also determines he is entitled to the standard rate of the mobility component, as he scores 10 points for activity 1(e). The case manager’s determination is made on 11 August and takes effect from 22 July.
Three months later, Social Security Scotland receives a determination from the Upper Tribunal in another case, stating that it has consistently misapplied activity 9 of the daily living component. Social Security Scotland therefore needs to take action to correct the official error that caused the individual to be underpaid.
Example: assessing an application against historic eligibility criteria
The eligibility criteria for ADP is amended with effect from 17 January. Niall makes an application for ADP 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 Niall both the daily living and mobility components at any rate.
Had the case manager correctly applied the eligibility criteria, Niall should have been entitled to the standard rate of the mobility component. Niall takes the notice of determination to his 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 Niall 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 (ADP Regs, reg. 49(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. 49(1)(c))
- request for an appeal (ADP Regs, reg. 49(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 ADP. 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 (ADP Regs, reg. 49(2)(a)(i))
- any other information obtained with that application (ADP Regs, reg. 49(2)(a)(ii))
- any other information that they have obtained in connection with the individual’s entitlement to ADP (ADP Regs, reg. 49(2)(b))
When change in entitlement begins
The change in entitlement begins on the date the previous determination took effect (ADP Regs, reg. 45(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
If the individual has been overpaid as a result of an official error, see ‘Error leading to an overpayment’
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 (ADP Regs, reg. 45(2)).
Example: Previous determination was incorrect due to an official error
John has bronchiectasis. He needs oxygen throughout the day. He makes an application for ADP on 5 April. Social Security Scotland makes a determination on 10 April that no award is due, on the basis that he does not meet the eligibility criteria.
On 10 June that year, John makes another application for ADP. It states he has had the same needs for the past year. The case manager notices that there was a similar, unsuccessful application recently and looks at the documents.
The previous case manager had not taken into account that John:
- was breathless at rest
- required oxygen 24 hours a day
- could therefore not stand and move more than 20 metres, either aided or unaided (mobility component activity 2 descriptor E which is 12 points)
This means John needs help to move around during the day. The case manager:
- decides that the earlier determination was incorrect
- decides that John should have been awarded the enhanced rate of the mobility 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 John supplied was taken into account. This has caused an underpayment of ADP. The new determination awards the enhanced rate of the mobility component. The change in entitlement begins on the date that the original determination took effect.
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)).