What is an error?
‘Error’ refers to a wide range of errors. It includes any circumstance where Social Security Scotland makes a determination of entitlement that is not correct which leads to an overpayment to the individual (PADP Regs, reg. 42(1)(b))
An error includes circumstances where a determination is made either:
- wrongly (PADP Regs, reg. 42(3)(a)(i))
- correctly but is based upon incorrect information or an assumption that proves to be wrong (PADP Regs, reg. 42(3)(a)(i)
An error can also take place where a new determination has not been made after an assumption on which an earlier determination was made has proven to be wrong (PADP Regs, reg. 42(3)(b)).
An error includes an ‘official error’, which is:
- an error made by Social Security Scotland or DWP and
- 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 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 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))
The overpayment may happen if the individual is given either:
- an award of PADP to which they were not entitled (PADP Regs, reg. 42(1)(b)(i))
- a higher award than that to which they were entitled (PADP Regs, reg. 42(1)(b)(ii))
Example: incorrect information is used to make a determination
Shabaz makes an application for PADP on 9 June. Social Security Scotland gathers supporting information on Shabaz’s behalf from his consultant. The consultant completes the report and the case manager makes a determination that Shabaz is entitled to the higher rate of PADP.
Some months later, Shabaz’s 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 Shabaz should have been paid the lower rate of PADP.
The original determination was made correctly but on the basis of incorrect information, which amounts to an error leading to an overpayment of PADP.
Example: an individual’s entitlement transfers from DWP to Social Security Scotland at wrong rate
Mary was entitled to Attendance Allowance at the lower rate. She is notified that her payments will be transferred to Social Security Scotland. Her last payment of Attendance Allowance will be on 10 March, with her entitlement to PADP commencing the following day.
Due to an IT error by DWP, Social Security Scotland is informed that Mary is entitled to the higher rate of Attendance Allowance. Social Security Scotland therefore makes a determination that Mary is entitled to the higher rate of PADP from 11 March.
Mary contacts Social Security Scotland on 11 April to say that she should have been paid at the lower rate. She also supplies a copy of her most recent award letter from DWP. Social Security Scotland has overpaid Mary as a result and this amounts to an official error.
Example: information that has been altered
Ben makes an application for PADP on 14 September. When submitting the application to Social Security Scotland, Ben provides a copy of a social work assessment. The information suggests that Ben lives in a heavily adapted property as a result of their needs. The case manager makes a determination that Ben is entitled to the higher rate of PADP.
During Ben’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 Ben 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 lower rate of PADP 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 PADP.