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 rate of PADP the individual is entitled to, or
- means individual is no longer entitled to PADP (PADP Regs, reg. 40(a))
A material fact is therefore one that would make a difference to the level of PADP 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 PADP on 24 November 2024. On the basis of the information in the application, a case manager makes a determination on 21 December that Emma is entitled to the lower rate of PADP from 24 November 2024.
In March 2025, Emma submits a copy of an occupational therapy report, dated 11 November 2024. The report notes that Emma requires full-time care in the day and the night from their partner.
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 higher rate of PADP from 24 November 2024. 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
Mona applies for PADP on 19 March. The application is accompanied by a three-page letter from Mona’s GP. The information leads the case manager to make a determination that Mona is entitled to the lower rate of PADP from 19 March, as she satisfied the daytime condition.
Two months later, the Social Security Scotland mailroom finds that a page of the letter from Mona’s GP had not been scanned correctly. The additional information details the impact of Mona’s condition on her care needs, suggesting that Mona would satisfy the night-time condition. The result is that Mona should have been entitled to the higher rate of PADP.
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
George is 70 years old and applied for PADP on 6 June. George has a hearing impairment. George requires frequent attention throughout the day in connection with the bodily function of hearing.
The case manager makes a determination on 9 July that George meets the daytime condition after considering all the information available to them. George is therefore awarded the lower rate of PADP.
In December, Social Security Scotland receives information that George provides care for his wife. The nature of the care that George provides is said to be inconsistent with the impact of his condition.
A new case manager does not realise that George had already stated in his PADP application form that he has caring responsibilities for his wife and believes that the original determination was made in ignorance of material fact. The new case manager requests a case discussion. The practitioner details that although George requires frequent attention with his hearing, it is not unreasonable for him to care for his wife while also requiring frequent attention in relation to his own condition.
Whilst the new case manager may disagree with the award that the original case manager made, there is no reason to suggest that the original determination was made in ignorance of material fact.