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 and
- to which no one else materially contributed (PADP Regs, reg. 41(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 PADP which either:
- does not award PADP to an individual to which they are entitled (PADP Regs, reg. 41(1)(b)(i))
- is a lower rate of PADP than they are entitled to (PADP Regs, reg. 41(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 care 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 PADP against historic eligibility criteria rather than current criteria
- misapplying the correct age, residence and presence, backwards test or 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))
This list is not exhaustive.
Example: Upper Tribunal for Scotland rules Social Security Scotland has consistently misapplied specific eligibility criteria
Hugo is 86 years old, lives alone and has aphasia and severe social anxiety. Hugo applies for PADP on 22 July. Hugo is able to communicate with his daughter, who knows him well, but engaging with anyone else causes him extreme distress. The case manager determines that he is not entitled to an award of PADP. The case manager arrives at this conclusion by following PADP decision-making guidance on bodily functions.
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 the PADP decision making guidance on bodily functions. 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 PADP is amended with effect from 17 January. Keith makes an application for PADP 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 Keith an award of PADP at any rate.
Had the case manager correctly applied the eligibility criteria, Keith should have been entitled to the lower rate of PADP. Keith takes the notice of determination to his local Citizens Advice Bureau. The adviser notices that the case manager has clearly applied the wrong eligibility criteria and notifies Social Security Scotland of this on 10 May.
This should be treated as an official error as Social Security Scotland alone is responsible for the error which has caused Keith to be underpaid.