Explanatory Notes

Social Security (Scotland) Act 2018

2018 asp 9

1 June 2018


Part 2 (Giving of Assistance by Scottish Ministers)

Chapter 5 (Recovery of value of assistance)
Assistance given in error

91.Sections 63 to 69 deal with the recovery of overpaid assistance as a result of an error.

92.Section 63(1) makes an individual liable to repay where an error has been made resulting in an overpayment (but this basic rule is qualified by section 64). Subsection (4) of section 63 defines what constitutes an error that will give rise to a liability for an overpayment. An example might be where the Scottish Ministers were unaware that a person’s circumstances had changed such as to make them no longer entitled to ongoing assistance which it had been assumed the person would be entitled to (see paragraph 80 above).

93.Section 63(2) clarifies that the liability is limited to the difference between the assistance given and the assistance that should have been given. So if, in error, Ministers have given someone £200 instead of £150, the person will only be liable for the £50 difference not the full £200.

94.Subsection (3) provides for how the value of assistance is to be calculated if it is not provided in money. For example, if a disabled person agreed that Ministers should provide a mobility aid rather than cash, its value for the purposes of calculating any liability for overpayment would be what it cost Ministers to provide the aid, not what it might have cost the individual to buy it.

95.Section 64 limits the circumstances in which an individual can be held liable to repay an overpayment. It provides that the individual has no liability unless either:

96.Section 64(2) sets out when an individual is to be treated as having some responsibility for an overpayment being made. In essence, it is where the individual provided false or misleading information, causing Ministers to determine entitlement on an erroneous basis, or where the individual failed to disclose a change of circumstances which the individual had a duty to tell Ministers about because, had they known about it, Ministers would have looked again at a determination of the individual’s ongoing entitlement to assistance.

97.Section 64(3) sets out two things that may be considered when deciding whether an overpayment has resulted from the sort of error that someone could reasonably be expected to notice. One factor is the size of the overpayment; it would, for example, be more reasonable to expect someone who had been routinely receiving £200 a month to notice an error resulting in a payment of £2,000 one month than an error resulting in a payment of £201. The other factor is whether information given to the individual by the Scottish Ministers before, or immediately after, the assistance was given should have made the error apparent. Section 64(3) is not exhaustive of the matters that can be considered in deciding whether someone can reasonably be expected to have noticed that an error was made. Where there is dispute, it will be for the court or tribunal dealing with the case to decide, on the strength of all the evidence presented, whether a reasonable person would have noticed the mistake.

98.Where the Scottish Ministers are aware of a person’s financial circumstances, section 65 provides that they must consider those circumstances in deciding whether to pursue recovery of a liability and also in considering how that money is to be recovered, for example in considering whether to make deductions from other assistance that is to be provided to the individual. Only the schedules dealing with those types of assistance that may be given on an ongoing basis provide for deductions from assistance and in each case, in addition to the protection afforded by section 65, they provide that deductions can only be made if the individual has agreed to that, or has unreasonably refused to agree a repayment plan (see schedule 2, paragraph 11(3); schedule 5, paragraph 17(3); schedule 7, paragraph 13(3); and schedule 9, paragraph 12(3)).

99.As a decision to make deductions will form part of a determination of entitlement, it will be open to challenge through the processes for challenging any aspect of a determination of entitlement set out in Chapter 3 of Part 2.

100.Section 66 provides that a prescriptive period of 5 years is to apply to any liability to repay money to the Scottish Ministers. The basic effect is that if Ministers are aware that a liability to repay exists, but take no steps to recover the debt, after 5 years Ministers may lose the ability then to pursue the debt. This basic rule is subject to the other provisions of the Prescription and Limitation (Scotland) Act 1973.

101.Section 67 prevents the Scottish Ministers from seeking to recover assistance under Part 2 of the Act that was given in error by using common-law remedies for unjustified enrichment. This means that the Scottish Ministers cannot bypass the protections that sections 64, 65 and 66 give to individuals by invoking a common-law basis for liability instead of section 63.

102.Section 68 would allow the Scottish Ministers, by regulations, to provide for the First-tier Tribunal for Scotland to deal with actions to recover assistance given in error that otherwise fall to be pursued in the Sheriff Court.

103.Section 69 provides that where assistance is given to an individual, but the individual has died, any payment for the period after the individual died is recoverable from the individual’s estate. The effect is to enable (but not require) the Scottish Ministers to seek to recover overpayments where, for example, Ministers continued to pay assistance under a determination of ongoing entitlement, being unaware that the individual had died. Section 64 would prevent an overpayment in those circumstances being recovered under section 63 because the error resulting in the overpayment could not sensibly be described as the deceased’s fault nor something that the deceased could reasonably be expected to notice.

Liability of deceased’s estate for funeral expense assistance

104.Funeral expense assistance is assistance to help someone pay for the costs of another’s funeral (see section 34). The assistance is given on the basis that the individual meeting the funeral costs would struggle to meet them. It may be, however, that the deceased’s estate is large enough to meet some or all of the costs, but that money is not in the hands of the person paying the costs when they fall due (and indeed may never be in that person’s hands if the person has no claim on any part of the deceased’s estate). Section 70 allows the Scottish Ministers to recover some or all of the value of the assistance given from the deceased’s estate once it has been in-gathered.