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 (Scottish Adult DLA Regs, reg. 45(1)(b))
An error includes circumstances where a determination is made either:
wrongly (Scottish Adult DLA Regs, reg. 45(3)(a)(i))
correctly but is based upon incorrect information or an assumption that proves to be wrong (Scottish Adult DLA Regs, reg. 45(3)(a)(ii))
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 (Scottish Adult DLA Regs, reg. 45(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 Scottish Adult DLA 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 Scottish Adult DLA to which they were not entitled (Scottish Adult DLA Regs, reg. 45(1)(b)(i))
a higher award than that to which they were entitled (Scottish Adult DLA Regs, reg. 45(1)(b)(ii))
Example: incorrect information is used to make a determination
Ben receives the middle rate of the care component of Scottish Adult DLA and reports a change on 9 June. Social Security Scotland gathers supporting information on Ben’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 the care component of Scottish Adult DLA.
Some months later, Ben’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 Ben should have been paid the middle rate of the care component of Scottish Adult DLA.
The original determination was made correctly but on the basis of incorrect information, which amounts to an error leading to an overpayment of Scottish Adult DLA.
Example: an individual’s entitlement transfers from DWP to Social Security Scotland at wrong rate
Eva was entitled to the care component of Disability Living Allowance (DLA) at the lowest rate. She is notified that her payments will be transferred to Social Security Scotland. Her last payment of DLA will be on 10 March, with her entitlement to Scottish Adult DLA commencing the following day.
Due to an IT error by DWP, Social Security Scotland is informed that Eva is entitled to the highest rate of the care component of DLA. Social Security Scotland therefore makes a determination that Eva is entitled to the higher rate of Scottish Adult DLA from 11 March.
Eva 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 Eva as a result and this amounts to an official error.
Example: information that has been altered
David has a review of his Scottish Adult DLA award on 14 September. When submitting the review form to Social Security Scotland, David provides a copy of a previous social work assessment. The case manager makes a determination that David is entitled to the highest rate of the care component of Scottish Adult DLA, as the assessment has both daytime and nighttime needs.
During David’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 David 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 lowest rate of the care component Scottish Adult DLA only, as David has significant adaptions to his home which were not reflected in the social work report. These adaptions mean that David is able to attend to his care needs independently. 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 Scottish Adult DLA.