Catalogue of errors - when an incorrect benefit decision is due to official error

Official error – a powerful tool to obtain arrears

A decision about a DWP benefit or housing benefit that is incorrect because of an ‘official error’ gives a claimant a right1 to have it revised by the decision maker regardless of how long ago the decision was made.2 That can allow a claimant to correct mistakes about entitlement to benefit going back years, in some cases leading to payment of arrears of thousands of pounds.

If a claimant is unhappy with a decision made within the last 13 months (one month plus the further 12-month extension for an ‘any grounds’ revision), then identifying that the decision arose from official error is unnecessary. An application for an any-grounds revision allows amendment of a decision regardless of why it was incorrect. In those cases, the new decision maker is free simply to take a different view of the same evidence as the previous decision maker.

However, for many cases where it cannot be argued that the claimant is still within that 13-month period, then identifying an official error is crucial in order to obtain a complete remedy for the incorrect decision (although note that sanction decisions can be revised at any time3. If a decision was made more than 13 months ago and cannot be revised, then the claimant is left with only getting the decision amended via supersession (which usually takes effect from the date of application for supersession or, in universal credit (UC) cases, the start of the assessment period in which the application was made).

Given that obtaining revision on the ground of official error has the potential, in appropriate cases, to make such a big difference to a claimant, being able to spot situations where decisions arose from official error and then write applications for revision which demonstrate that there was an official error is important.

Definition of official error

An official error is defined4 as an error made by an officer of the DWP (and/or the local authority in housing benefit (HB) cases) in the course of their work. There are two caveats.

• Firstly, no person outside the DWP (and/or local authority for HB) can have contributed to the error. That caveat may need careful consideration: firstly, there is the issue of whether the decision itself arose from (was made in consequence of) an official error; secondly, in situations where that is the case, there is the issue of whether there was an external contribution to the error itself. Those two considerations are not the same and arguably should not be conflated (although note in another context Sier v Cambridge CC [2001] EWCA Civ 1523).
• Secondly, where the error is a legal mistake only shown to have been an error by a later test case decision, then that will not count as an official error. That part of the definition indicates that all other legal mistakes (‘errors of law’) will count as official errors. Issues can arise as to whether a legal mistake made in a particular case was only revealed to be a mistake by a subsequent test case (eg, Smith v SSWP [2018] UKUT 270 (AAC) arose because the Secretary of State mistakenly took the position that a legal interpretation that had long been accepted as correct was first established only in a case heard in 2014. When challenged, the Secretary of State accepted that in that earlier case she had conceded the point was correct so it could not have been that case which first showed the error). Where an error is genuinely only shown to have arisen as a result of a subsequent test case5 then although official revision is unavailable, a supersession should have effect from the date on which the relevant test case was decided.

Typology of official errors

While consideration of the definition of official error provided in the regulations sheds some light on when official error revision may be available, it does not provide a complete understanding. DWP guidance does not take the matter much further, although paragraph A3103 of Advice for Decision Making (‘ADM’) at least gives an insight into what the DWP view as official error.

It helps therefore to attempt to set out a typology of official error types.

1. Errors about facts

While many mistakes about the facts made by a decision maker will not amount to an official error, some will. An official error arises where the factual conclusion arrived at was one which the decision maker could not rationally have come to based on the evidence that was available. For example, in CDLA/1707/2005 a decision maker accepted evidence of ‘walking ability before the onset of severe discomfort as 50 metres in four minutes at a slow pace with one halt after two minutes for 20 seconds due to pain and shortness of breath’. The decision maker was held to have made an error in concluding that did not mean the claimant was virtually unable to walk.

Similarly, a decision maker who makes a decision without looking at all the evidence might have made an error.

2. Errors in gathering evidence

Another type of error arises where the decision maker fails to gather evidence relevant to determining whether a particular condition of entitlement or procedural rule is satisfied. For example, at present decisions are made on entitlement to the UC housing element and the number of bedrooms to which a claimant is entitled without gathering evidence to know whether any of the rules allowing a claimant an extra bedroom due to disability needs are met – ie, the claimant is unable to share with partner due to disability. In any case, where the claimant met the rule allowing an extra bedroom, the decision that had failed to award it, following such a flawed process, would have arisen from official error – that is clear from Kerr v DSDNI [2004] UKHL 23 which explains that benefit administrators are required to ask the relevant questions.

A related type of error may arise where the decision maker would, in an ordinary case, be judged to have asked sufficient questions but where the particular evidence in that case shows that further enquiries should have been made to determine what the facts were. For example, where a claimant states when claiming UC that s/he pays the full rent but is a joint tenant despite living alone, a decision maker who only awards 50 per cent of the housing costs may well make an error. On that evidence a question clearly arises as to whether it is reasonable to apportion the rent, as it appears the joint tenant is not paying a share and does not live in the property.

Paragraph A3103 of the ADM is therefore unhelpful in suggesting it is for claimants to explain all their circumstances to the DWP: that advice fails to take account of the collaborative nature of fact finding in social security adjudication described by Lady Hale in Kerr.

3. Procedural mistakes

An official error may also occur where, although the decision maker was entitled to come to the conclusion, s/he came to on the evidence available and had asked the relevant questions, a specific procedure had not been followed. Typically such errors will raise the issue of whether the decision maker acted fairly in the way the decision was made.

For example, if a claimant is told s/he has seven days to accept a claimant commitment on her/his journal, a decision maker who checks on the seventh day whether the commitment has been accepted, finds that it has not and therefore ends the award or refuses the claim will make an official error. The claimant was told s/he had seven days to accept her/his commitment but a decision that s/he had not done so was made before the end of the seventh day s/he had been promised.

Similarly, where a claimant fails to attend a medical examination and a request is sent to her/him asking for her/his reasons for not attending, then a decision that s/he is to be treated as not having limited capability for work-related activity due to that failure made before s/he has had a chance to give her/his reasons could well contain a procedural error of this type.

4. Getting the law wrong

Getting the law wrong is, as already discussed above, an official error unless the legal mistake is only shown to be a mistake by a subsequent test case judgment.

Practical considerations

In some cases, the reasons why a decision maker got an issue wrong will be difficult to establish. Obtaining any papers still held by the DWP about such decision can sometimes reveal an error.6 However, often detailed reasons for why a decision was made are not recorded and so one is left to try and establish via inference that an error must have occurred.

For all benefits except HB then, a refusal to revise for official error following an application will give rise to a right of appeal where the First-tier Tribunal can decide whether an error occurred.7