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 (Scottish Adult DLA Regs, reg. 44(3) 24).
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 Scottish Adult DLA which either:
- does not award Scottish Adult DLA to an individual to which they are entitled (Scottish Adult DLA Regs, reg. 44(1)(b)(i))
- is a lower rate of Scottish Adult DLA than they are entitled to (Scottish Adult DLA Regs, reg. 44(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 Scottish Adult DLA 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
Gary is 92 years old, lives alone and receives the lowest rate of the care component of Scottish Adult DLA. Gary has dementia, and is unable to prepare a main meal independently, as he often becomes distracted whilst cooking and can leave food in the oven or on a hot stove.
Gary’s informs Social Security Scotland of a change in his circumstances on 22 July. Gary’s daughter reports that he now has significant difficulty with personal care and requires visits from a carer to support with toileting and bathing in the daytime. The case manager determines that he is not entitled to an award of Scottish Adult DLA. The case manager arrives at this conclusion by following Scottish Adult DLA 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 misapplied the Scottish Adult DLA decision making guidance on the requirement for frequent attention in relation to bodily functions. Social Security Scotland therefore needs to take action to correct the official error that caused the individual to be underpaid. As a result, Gary is awarded the middle rate of the care component, taking effect from the 22 July.