When the change in entitlement begins
The change in entitlement begins on the date the previous determination took effect (Scottish Adult DLA Regs, reg. 40(1)(d)) where all of the following apply:
- the original determination involved making an official error
- the individual is now entitled to a higher award as a result of the new determination
- the individual has been underpaid as a result
If the individual has been overpaid as a result of an official error, see ‘Error that leads to an overpayment’.
Case managers may choose an earlier date for the new determination to take effect from if (in all the circumstances) it would be unjust not to do so (Scottish Adult DLA Regs, reg. 40(2)).
Example: Previous determination was incorrect due to an official error
Ian has bronchiectasis. He needs oxygen throughout the day and receives support from his partner with bathing due to breathlessness and exhaustion relating to the physical exertion required. Ian receives the middle rate of the care component of Scottish Adult DLA. Following a scheduled review, Social Security Scotland makes a determination on 10 April that no award is due, on the basis that he does not meet the eligibility criteria.
On 14 April, Ian requests a re-determination of this decision. He states he has had the same needs for the past year. The case manager reviews Ian’s review form and looks at the supporting information provided.
The previous case manager had not taken into account that Ian:
- was extremely fatigued and breathless at rest, requiring oxygen 24 hours a day;
- required frequent attention and continual supervision during the day with getting to and from the toilet, and washing and dressing.
This means Ian needs frequent attention throughout the day in connection with his bodily functions.
The case manager:
- decides that the earlier determination was incorrect
- decides that Ian should have been awarded the lower rate of Scottish Adult DLA
- makes a determination without application to correct the error.
This was an official error as the determination was procedurally made correctly, but it came to light that not all of the information that Ian supplied was taken into account. The case manager confirms that Ian’s circumstances meant that he should have been paid for this period, and determines that there has been an underpayment of Scottish Adult DLA. The new determination awards the lower rate of Scottish Adult DLA. The change in entitlement begins on the date that the original determination took effect.
Where an individual was awarded a lower rate award when they should be entitled to a higher rate award, they will be paid the difference between any Scottish Adult DLA already paid under the original determination and any Scottish Adult DLA due under the new determination (if both determinations relate to the same period of time) (Scottish Adult DLA Regs, reg. 40(4)).