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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 set a later start date for the change in entitlement to begin (PADP regs, reg. 38(2))
Case managers should only consider setting a later start date if entitlement would otherwise begin on the date that the individual should have reported the change.
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 could reasonably be expected to notice (S. 63(1) and S. 64(1)) of the Social Security (Scotland) 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)
Example
Edith has been receiving the lower rate of PADP due to osteoarthritis in her right shoulder. She has an operation, and after her recovery from the operation goes well, she notices she is able to do a lot more of her daily activities independently than she could before. She decides not to notify Social Security Scotland.
When a case manager undertakes a scheduled review of Edith after 6 months, her entitlement to PADP would stop 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.
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.