The Social Security (Adjudication) Regulations 1995

SECTION C— REVIEW OF DECISIONS

Date from which revised decision has effect on a review

57.—(1) In the case of a review to which either paragraph (2) or paragraph (3) applies, the decision given shall have effect from the date from which the decision being reviewed had effect or from such earlier date as the authority giving the decision being reviewed could have awarded benefit had that authority taken account of the evidence mentioned in paragraph (2) or not overlooked or misconstrued some provision or determination as mentioned in paragraph (3).

(2) This paragraph applies to a review under sections 25(1)(a), 30(2)(a) and (4) and 35(1)(a) of the Administration Act (review for error of fact) of any decision, whether that decision was made before or after the coming into force of this regulation, where the reviewing authority, that is to say the adjudication officer or, as the case may be, the appeal tribunal, is satisfied that—

(a) the evidence upon which it is relying to revise the decision under review is specific evidence which the authority which was then determining the claim or question had before it at the time of making the decision under review and which was directly relevant to the determination of that claim or question but which that authority failed to take into account; or

(b) the evidence upon which it is relying to revise the decision under review is a document or other record containing such evidence which at the time of making the submission to the authority which was then to determine the claim or question, the officer of the Department of Social Security, the Department for Education and Employment, the former Department of Employment or the former Department of Health and Social Security who made the submission had in his possession but failed to submit; or

(c) the evidence upon which it is relying to revise the decision under review did not exist and could not have been obtained at that time, but was produced to an officer of one of those Departments or to the authority which made that decision as soon as reasonably practicable after it became available to the claimant.

(3) This paragraph applies to a review under sections 25(2) and 30(2)(d) of the Administration Act (review for error of law) of any decision, whether that decision was made before or after the coming into force of this regulation, where the adjudication officer or, as the case may be, the appeal tribunal, is satisfied that the adjudication officer, in giving the decision under review, overlooked or misconstrued either—

(a) some provision in an Act of Parliament or in any Order or Regulations; or

(b) a determination of the Commissioner or the court, which, had he taken it properly into account, would have resulted in a higher award of benefit or, where no award was made, an award of benefit.

(4) The following provisions of this Section, including regulation 63, are subject to the provisions of this regulation.

(5) In this regulation “court” has the same meaning as it has in section 68 of the Administration Act.

Review of decisions in cases to which section 69(1) of the Administration Act applies

58.  In any case to which section 69(1) of the Administration Act applies, the decision given on review shall have effect from the date of the relevant determination within the meaning of that subsection whether the decision which is being reviewed was made before, on or after 9th March 1992.

Review of decisions involving payment or increase of benefit other than industrial injuries benefit, disability working allowance, income support or family credit

59.—(1) Where on a review a decision relating to benefit other than industrial injuries benefit, disability working allowance, income support or family credit is revised so as to make benefit payable, or to increase the rate of benefit, then subject to the following provisions of this regulation, the decision given on the review shall have effect from such date as may be specified in the decision, being a date not earlier than—

(a) in the case of unemployment benefit and maternity allowance, the date of the application for the review;

(b) in the case of incapacity benefit or severe disablement allowance the date 2 weeks before the date of the application for the review;

(c) in the case of widow’s benefit under sections 36 to 39 of the Contributions and Benefits Act (and benefit under section 78(9) of that Act corresponding to a widow’s pension or a widowed mother’s allowance), an invalid care allowance, a child’s special allowance, a guardian’s allowance, a retirement pension of any category or an age addition, the date 3 months before the date of the application for the review;

(d) in the case of child benefit, the date 12 months before the beginning of the week in which the application for review is made;

(e) in the case of attendance allowance or disability living allowance, where the decision is reviewed—

(i) under section 30(1) of the Administration Act and paragraph (ii) of this sub-paragraph does not apply, the date of claim,

(ii) under section 30(1) of the Administration Act as that subsection is applied by sections 31(2) and 35(8) of that Act, 3 months before the date of the application for review made under section 30(2) or (4) of that Act which preceded the application for review under section 30(1) of that Act,

(iii) under section 30(2) or (4) or section 35 of that Act, 3 months before the date of the application for review.

(2) Where in any case to which paragraph (1) applies (other than child benefit) a claimant proves—

(a) that on a date earlier than the date on which the application for review was made, he was (apart from satisfying the condition of making a claim for it) entitled to benefit; and

(b) that throughout the period between the earlier date and the date on which the application for review was made, there was good cause for delay in making the application; subject to paragraphs (3) to (5) he shall not be disqualified by virtue of paragraph (1) for receiving any benefit to which he would have been entitled in respect of that period.

(3) Except in a case to which regulation 57(2) or (3) or regulation 58 applies, no sum on account of benefit shall, in a case to which paragraph (2) applies, be paid to any person in respect of any part of the period referred to in sub-paragraph (b) of that paragraph earlier than 12 months before the date on which the application for review was made, so however that the foregoing provisions of this paragraph shall not apply to—

(a) any case where it is certified in the decision on review that the original decision was revised by reason only of one or more of the following—

(i) a matter specified in section 17(1)(b) of the Administration Act (contributions and earnings factor); or

(ii) a matter relating to the number of days in respect of which the claimant has been entitled or deemed to be entitled to short-term incapacity benefit;

(b) the review of a decision disallowing a claim for sickness benefit, invalidity benefit, severe disablement allowance or unemployment benefit in so far as it is a decision which, under the provisions of regulations made under section 5(1)(f) of the Administration Act, has been treated as a decision disallowing a further claim for any of those benefits.

(4) In any case, other than a case to which paragraph (5) applies, in which the review to which the foregoing provisions of this regulation relate was based on a material change of circumstances subsequent to the date from which the original decision took effect, it shall not have effect for any period before the date declared by the adjudicating authority making the review to be the date on which that change took place.

(5) In any case relating to attendance allowance or disability living allowance in which the review to which the foregoing provisions of this regulation relate was based on a relevant change of circumstances to which this paragraph applies subsequent to the date from which the original decision took effect, the decision on review shall not have effect for any period before—

(a) the date declared by the adjudicating authority making the review to be the date on which that change took place, or

(b) if more than one change has taken place between the date from which the original decision took effect and the date of the application for review, the date declared by the adjudicating authority making the review to be the date on which the most recent change took place, or

(c) the date 3 months before the date of the application for review, whichever is the later.

(6) Paragraph (5) applies only to a relevant change of circumstances which relates to a deterioration in a person’s physical or mental condition.

(7) Where a claim for an attendance allowance or a disability living allowance has been refused and either—

(a) an application for review of the decision is made under section 30(1) of the Administration Act; or

(b) a further claim for an attendance allowance or a disability living allowance is made within the period prescribed under section 30(1) of the Administration Act and is accordingly treated as an application for review in accordance with section 30(13) of that Act then, if that review results in an award of an attendance allowance or a disability living allowance, the decision on review shall have effect from the date specified in paragraph (8).

(8) The date referred to in paragraph (7) is such date as may be specified in the decision on review being a date not later than—

(a) in the case of an attendance allowance, 6 months; and

(b) in the case of a disability living allowance, 3 months, after the date on which the application for review is made or the further claim is made whichever is appropriate.

(9) For the purposes of this regulation, where a decision is reviewed at the instance of an adjudication officer under section 25(1) or (2) of the Administration Act, the date on which the adjudication officer decided to make that review shall be deemed to be the date of the application for the review.

(10) In any case to which paragraph (1) applies, the decision on review shall not in any event have effect for any period before the date on which the original decision took effect or would have taken effect if any award had been made.

Review of decisions involving payment or increase of industrial injuries benefit

60.—(1) Except in a case to which regulation 57(2) or (3) or regulation 58 applies, where on a review a decision of an adjudication officer, an appeal tribunal or a Commissioner is revised so as to make industrial injuries benefit payable or to increase the rate of such benefit, the decision given on review shall, subject to paragraph (2), have effect as from the date of the application for the review or from such earlier date as appears to the person or tribunal determining the review to be reasonable in the circumstances.

(2) Paragraph (1)—

(a) shall not permit benefit to become payable from a date earlier than the earliest date from which it could have been payable had it been awarded in the decision being reviewed;

(b) in the case of a review made by virtue of section 60(5)(a) of the Administration Act (which permits the review of a decision given before the passing of the National Insurance Act 1972(1) that a claimant was not entitled to industrial death benefit) shall not permit benefit to become payable for any period earlier than 9th August 1972.

(3) Where a decision is reviewed at the instance of an adjudication officer under section 25(1) of the Administration Act, the date on which it was first decided by the adjudication officer that the decision should be reviewed shall be treated for the purposes of this regulation as the date of application for review.

Review of medical decisions on grounds of ignorance of or mistake as to a material fact

61.  A decision of an adjudicating medical authority or a medical appeal tribunal may not be reviewed under section 47(1) of the Administration Act unless the adjudicating medical authority is satisfied as mentioned in that subsection by fresh evidence.

Period to be taken into account by assessments revised on ground of unforeseen aggravation

62.  On review of any assessment under section 47(4) of the Administration Act (review on ground of unforeseen aggravation) the period to be taken into account by any revised assessment may include any period not exceeding 3 months before—

(a) if the review was in consequence of an application by a claimant, or a person acting on his behalf, the date of that application; or

(b) if the review was in consequence of a decision on a recrudescence question, within the meaning of regulation 43(3)(b) given under regulation 7(4) of the Prescribed Diseases Regulations (recrudescence of a prescribed disease), the date of the claim on which that decision was given, if the medical board are satisfied that throughout that period there has been unforeseen aggravation of the results of the relevant injury since the making of the assessment under review.

Review in income support cases

63.—(1) Except in a case to which regulation 57(2) or (3) or regulation 58 applies, a determination on a claim or question relating to income support shall not be revised on review under section 25 of the Administration Act so as to make income support payable or to increase the amount of income support payable in respect of—

(a) any period which falls more than 12 months before the date on which the review was requested or, where no request is made, the date of the review; or

(b) any past period which falls within the period of 12 months mentioned in sub-paragraph (a) above and has been followed by termination or interruption of entitlement to income support and—

(i) the total amount of the increase would be £5 or less, or

(ii) the grounds for review are a material fact or relevant change of circumstances of which the claimant was aware but of which he previously failed to furnish information to the Secretary of State.

(2) Section 159 of the Administration Act (which relates to the effect of alterations in the component rates of income support) shall not apply to any award of income support in force in favour of a person where there is applicable to that person—

(a) any amount determined in accordance with regulation 17(2) to (7) of the Income Support Regulations(2); or

(b) any protected sum determined in accordance with Schedule 3A or 3B of those Regulations(3); or

(c) any transitional addition, personal expenses addition or special transitional addition applicable under Part II of the Income Support (Transitional) Regulations 1987 (transitional protection)(4).

(3) Where section 159 of the Administration Act does not apply to an award of income support by virtue of paragraph (2), that award may be reviewed by an adjudication officer or, on a reference by him, by an appeal tribunal for the sole purpose of giving effect to any change made by an order under section 150 of the Administration Act.

(4) A determination relating to income support made by an adjudicating authority or a Commissioner shall be reviewed by an adjudication officer or, on a reference by him, by an appeal tribunal where this is necessary to give effect to—

(a) regulation 22 of the Income Support Regulations (reductions in applicable amounts in certain cases of actual or notional unemployment benefit disqualification); or

(b) a determination given on a question to which regulation 56 applies; or

(c) a change of circumstances to which regulation 14 (reduction and termination of transitional and personal expenses addition) and regulation 15 (special transitional addition) of the Income Support (Transitional) Regulations 1987(5) apply.

(5) Where a claimant in receipt of income support, other than a claimant to whom Part II of Schedule 4 to the Income Support Regulations (6) applies, lives in a nursing home or residential care home and he is absent from the home for a period of less than one week, that absence shall not be treated as a relevant change of circumstances for the purposes of section 25(1)(b) and (c) of the Administration Act.

(6) In paragraph (5), “nursing home” and “residential care home” have the same meanings as they have in regulation 19 of the Income Support Regulations(7).

Repayment of student loan not a change of circumstances

64.  The repayment of a loan to which regulation 66A of the Income Support Regulations(8) or regulation 42A of the Family Credit (General) Regulations 1987(9) (treatment of student loans) applies shall not be treated as a relevant change of circumstances for the purposes of section 25(1)(b) and (c) of the Administration Act.

Review in family credit cases

65.  Where a review under section 25(1)(a) of the Administration Act of a decision relating to family credit arises from a disclosure of a material fact of which the person who claimed family credit was, or could reasonably have been expected to be, aware but of which he previously failed to furnish information to the Secretary of State, then if that review would result in either a new award of family credit or an increase in the amount of family credit payable, such new award or increase shall not be payable in respect of any period earlier than 12 months before the date on which that person first furnished that information.

Review in disability working allowance cases

66.—(1) Where a claim for disability working allowance has been refused and either—

(a) an application for review of the decision is made under section 30(1) of the Administration Act; or

(b) a further claim for disability working allowance is made within the period prescribed under section 30(1) of the Administration Act and is accordingly treated as an application for review in accordance with section 30(13) of that Act,

then, if that review results in an award of disability working allowance, the decision on review shall have effect from the date on which the application for review is made or the further claim is made whichever is appropriate.

(2) Where a review under section 30(1) or (5)(a) or section 35(3)(a) of the Administration Act of a decision relating to disability working allowance arises from a disclosure of a material fact of which the person who claimed disability working allowance was, or could reasonably have been expected to be, aware but of which he previously failed to furnish information to the Secretary of State, then if that review would result in either a new award of disability working allowance or an increase in the amount of disability working allowance payable, the decision on review shall not have effect in respect of any period earlier than 12 months before the date on which that person first furnished that information.

Review in social fund maternity, funeral or heating expenses cases

67.  Except in a case to which regulation 57(2) or (3) or regulation 58 applies, a determination on a claim or question relating to maternity or funeral expenses or expenses for heating which appear to the Secretary of State to have been or to be likely to be incurred in cold weather out of the social fund under Part VIII of the Contributions and Benefits Act and section 66 of the Administration Act shall not be revised on review under sections 25 to 29 and 69 of the Administration Act so as to make such expenses payable or to increase the amount of such expenses payable in respect of a determination of a claim for such expenses made more than 12 months before the date on which the review was requested or, where no request is made, the date of review.

(1)

1972 c. 57.

(2)

Relevant amending instruments are S.I. 1988/910, 1989/1678, 1991/387.

(3)

Schedule 3A was inserted by S.I. 1988/1445; relevant amending instruments are S.I. 1988/2022, 1989/534, 1648, 1990/547, 2324, 1991/1559, 1992/1326. Schedule 3B was inserted by S.I. 1989/534; relevant amending instruments are S.I. 1989/1678, 1990/547, 2324, 1991/1559, 1992/1326.

(4)

S.I. 1987/1969; relevant amending instruments are S.I. 1988/521, 670, 1989/1626, 2340, 1990/2324, 1991/387, 1600, 1992/1326.

(5)

S.I. 1987/1969; relevant amending instruments are S.I. 1988/521, 670, 1989/1626, 2340, 1990/2324, 1991/387, 1600, 1992/1326.

(6)

Relevant amending instruments are S.I. 1988/663, 1991/1559, 1992/468.

(7)

Relevant amending instruments are S.I. 1988/663, 1445, 2022, 1989/1678, 1991/1033, 1992/3147, 1993/2119.

(8)

Regulation 66A was inserted by S.I. 1990/1549; relevant amending instruments are S.I. 1991/236, 1559.

(9)

S.I. 1987/1973; relevant amending instruments are S.I. 1990/1549, 1991/1520.