Changing Decisions
Index
DLA
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Revision
Material Facts
More or less advantageous
"Disability/non-disability benefit decisions"
Revision, some worked examples
Supersession (DLA and AA)
From what date is a supersession effective?
Supersession on the basis of ignorance or mistake as to material fact
Supersession, some worked examples
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3
4
4
5
6
7
8
9
PIP
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Revision
Supersession
Effective date of supersession
Supersession for change of circumstances
13
13
14
14
Overpayments
 Overpayment decisions (DLA, and AA)
 Overpayments, some worked examples
 Revision and supersession, some general advice
 Overpayments (PIP)
16
17
19
20
This is a topic which continues to trouble tribunal members of all descriptions.
"Revision" and "Supersession" refer to the mechanisms through which existing
awards can be terminated or altered, either by increasing, reducing or removing
entitlement.
The ambition of this paper is limited to setting out the very basic structure of the
revision and supersession provisions. It does not attempt to provide any kind of
comprehensive review. There is, however, a document entitled "DLA Technical
Guide" available on the Social Entitlement Chamber Judicial website (hereafter
referred to as “the SEC website”) which, although out of date in some respects,
remains bang up-to-date insofar as revision and supersession in relation to DLA and
AA appeals is concerned and will prove a valuable resource for those who wish to
come to a better understanding of this difficult topic.
As if the present position was not complicated enough, we now also have separate
rules for revision and supersession of PIP decisions. These are very similar to, but
not the same as, the rules which govern revision and supersession of DLA and AA
decisions. I deal with them separately towards the end of this paper and, for the
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moment, will concentrate on revision and supersession as it applies to DLA and AA
decisions.
DLA and AA
The statutory authority in relation to revision is contained within section 9 of the
Social Security Act 1998. You will find this and its associated commentary at pages
211 to 214 of volume III (2014/15 edition Social Security Legislation). The
corresponding authority in relation to supersession is contained at section 10 (pages
214 - 218).
However, the detailed rules relating to revision are contained in regulation 3 of the
Social Security and Child Support (Decisions and Appeals) Regulations 1999 (pages
566-582 of volume III) and the detailed rules governing supersession at regulation 6
of those regulations (pages 586-601). In general, a supersession decision will take
effect from the date upon which it is made or the date upon which the application for
it is made (section 10 (5) of the 1998 Act). However, regulation 7 sets out a large
number of exceptions to the general rule. Regulation 7 contains 40 paragraphs which
in itself says something about the complexity of this topic. You will find regulation 7
and its commentary at pages 621- 639.
Revision, as the name suggests, involves going back to the original decision and
revising that decision in order to make a new decision effective from the date of that
original decision.
The Secretary of State is entitled, within one month of the relevant decision, either on
his own initiative, or on application by the benefit recipient, to revise the decision by
changing it. This is sometimes referred to as a "change of mind" revision and is a
sensible provision which does not require any particular grounds to be identified but
simply allows the Secretary of State's decision maker to change his mind if, for
example, some new piece of evidence or information pops up. There is also provision
to allow the one-month period to be extended in certain circumstances.
In addition, the regulations allow the Secretary of State to revise any decision which
later becomes the subject of an appeal. In other words, as soon as an appellant
appeals against the decision, the Secretary of State is perfectly entitled to look at that
decision again and, if so minded, to revise it by changing it as a consequence of
being confronted with the fact of the appeal and indeed any information which may
have been produced in connection with the appeal. The revised decision may be
more or less advantageous to the appellant.
A revised decision which is more advantageous to the appellant will result in the
appeal lapsing: see regulation 30 of the Decisions and Appeals regulations 1999
(pages 667- 669). However, this new decision will carry with it separate appeal rights.
If the appellant remains dissatisfied with the new decision, even if it is more
advantageous than the previous decision, s/he is still entitled to make a new appeal
against that decision.
However, most of the revisions which you will see are revisions where the Secretary
of State is revising an earlier decision on the basis that the decision was based upon
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ignorance or mistake as to some material fact pertinent to the original decision.
Revision on this ground is competent at any time and the Secretary of State is
permitted to go back to any earlier decision, no matter how far back in time. It is not
uncommon to see such revisions going back to decisions taken years ago.
The important point to understand is that the rules governing revision and
supersession were never designed to be and are not even handed insofar as the
positions of the Secretary of State and the appellant are concerned. The rules are
designed to allow the Secretary of State to go back for an unlimited period of time
where the original decision has been tainted by ignorance or mistake as to some
material fact, but only where the decision which is to be the subject of the revision
was more advantageous to the appellant than it would have been but for the
ignorance or mistake.
As a consequence, the rules do not permit an appellant to seek revision of an earlier
decision which was less favourable to him/her than it otherwise would have been
except on the limited grounds that there had been an official error in the making of
that decision. Official error is defined in Regulation 1. Otherwise, all that an appellant
can do is seek revision providing he does so within the one-month period already
referred to (or such limited extension for such period as the rules permit).
Alternatively, s/he can make an application for supersession of the earlier decision.
The problem for the appellant is that the supersession application will only be
effective from the date upon which it is made and the appellant will have lost
entitlement to any enhanced component for the whole period from the date of the
original decision up until the point when the supersession application is made.
The material facts
When dealing with an appeal involving revision on the basis of error or mistake as to
material fact, one of the first problems to confront the tribunal is to establish what
material facts the original decision maker had before him at the point when the
decision which is to be the subject of the revision was made.
It is important, at the outset, to make a distinction between what I am referring to as
"material facts" from conclusions of fact.
If we take the example of the higher rate of the mobility component, your "material
facts" might be as follows:
"Mr Smith's ability to walk outdoors is significantly limited by osteoarthritis of his left
knee and COPD. In general, he is only able to walk distances of between 50 to 100
metres without severe discomfort before he needs to stop in order to alleviate
discomfort in his back and to catch his breath. He normally stops for a minute or so
before being able to continue in a similar fashion for a similar distance. His walking
pace is slower than normal, being about half the normal pace for a man of his age.
He walks with a slight limp on his left side and normally uses a walking stick which he
holds in his right hand when walking outdoors. His balance is not significantly
impaired."
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However, identifying these "material facts" is not always straightforward. You may not
necessarily have all of the information which was before the decision maker at that
time, particularly if the decision which is to be the subject of the revision was made a
significant number of years ago. It may be possible to draw necessary inferences
from the information which is available, but then again, it may not be.
However, having established what the material facts were (the original claim pack or
supporting information may be in your bundle), you must then go on to consider
whether or not the Secretary of State was either ignorant or mistaken in relation to
any of them.
If, having considered these issues, you either do not know what the material facts
before the original decision maker were or you are not satisfied, on the basis of the
information before you, that it has been demonstrated there was any ignorance or
mistake as to these facts, there are then no satisfactory grounds to revise and the
original decision still stands.
However, if you are satisfied that the original decision was made in ignorance or
mistake as to some material fact, you must then go on to consider the other issues.
More or less advantageous to the appellant?
It is important to note that, before revision is competent, the original decision which is
to be the subject of the revision must have been more advantageous to the claimant
than it otherwise would have been but for the ignorance or mistake as to material
fact. This effectively prevents a benefit claimant from being able to go back to an
earlier award and revise it to his advantage by increasing entitlement unless there is
an "official error" – see above.
"Disability/non-disability benefit decisions"
Having got this far down the line, you must now go on to consider whether or not the
decision which is to be the subject of the revision is a "disability benefit decision".
This is defined in regulation 7A (1) as being:
"A decision to award a relevant benefit embodied in or necessary to which is a
disability determination".
This last phrase is further defined in the same regulation. To cut a long story short, a
"disability determination" is a determination which involves consideration of the
substantive criteria for entitlement, i.e. whether or not an individual, as a matter of
fact, meets or does not meet the criteria for entitlement to either the mobility or care
components.
A decision where those criteria are not engaged is referred to by me in this paper
(but not in the legislation) as a "non-disability benefit decision". Examples of this type
of decision relate to situations where, although the basic criteria for entitlement
continue to be met at some level, the benefit is not payable for some other reason,
for example, the appellant has gone into hospital, prison or has left the country.
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The distinction is important for this reason. Where the Secretary of State is purporting
to revise a “non-disability benefit decision" all that he requires to establish is that the
original decision was based upon ignorance or mistake as to some material fact and
that, as a consequence, the original decision was more advantageous to the claimant
than it otherwise would have been.
Once these facts have been established, the decision can then be revised from the
date of that original decision.
However, in the case of a "disability benefit decision", in addition to the above two
matters, the Secretary of State must establish in accordance with the provisions of
regulation 3 (5) (c) of the Decisions and Appeals Regulations that at the time of the
original decision the claimant knew or could reasonably have been expected to know
of the fact in question and that it was relevant to the decision.
This constitutes an important additional burden which the Secretary of State must
discharge in order to competently revise the original decision, but only when dealing
with a "disability benefit decision".
In other words, if the tribunal is not satisfied at the time of the original decision that
the claimant knew or could reasonably have been expected to know of the fact in
question and that it was relevant to the decision, then there are no grounds to revise
and the original decision still stands, notwithstanding the fact that it was indeed
based upon some ignorance or mistake as to fact.
However, in these circumstances, the tribunal is entitled, instead of revising, to
supersede the decision on the basis of ignorance or mistake as to material fact
because, insofar as supersession is concerned, there is no equivalent of regulation 3
(5) (c). However, any such decision is only effective from the date upon which it is
made and cannot be retrospective in its effect. See pages 8 and 9 of this note.
Revision: a worked example
Mrs Bradford
Mrs Bradford has been in receipt of the higher rate of the mobility component
following a decision made to that effect dated 26/4/10.
Anonymous information comes to the Secretary of State to the effect that Mrs
Bradford has, for some years, been running car boot sales every second Sunday at
her local racecourse.
The Secretary of State conducts a fraud investigation and obtains video footage of
Mrs Bradford over the course of several months walking significant distances up and
down the racecourse. She is seen walking, sometimes using and sometimes carrying
her walking stick, at a reasonable pace and clearly able to walk distances, without
stopping, of at least 100 metres without any appearance of discomfort of any kind.
The information in the appeal bundle suggests that she is suffering from
osteoarthritis. In her original claim pack, she asserted that she is unable to walk
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distances of more than 25 metres before the onset of severe discomfort, it taking her
3 minutes to achieve this distance.
A previous tribunal has adjourned in order to obtain a report from an examining
medical practitioner. The EMP considers that she is able to walk distances of up to
250 metres without severe discomfort and without requiring to stop.
Your tribunal now requires to decide whether or not it is satisfied that the original
decision maker, at the time of the original decision, was ignorant or mistaken as to
some material fact. The material fact in question relates to Mrs Bradford's ability to
walk before the onset of severe discomfort.
It is a reasonable inference, on the basis of the above information, that at the time of
the original decision, the decision maker made the award on the basis that she was
unable to walk more than 25 metres before the onset of severe discomfort.
If (but only if) the tribunal is satisfied by the later evidence that Mrs Bradford's ability
to walk at that time was significantly better than her assertion, then it is a natural
conclusion that the original decision maker was either ignorant or mistaken as to
material facts about her ability to walk.
As the original decision was more advantageous to Mrs Bradford than it otherwise
would have been, the tribunal must go on to consider (as this is a "disability benefit
decision") whether or not the additional test set out at regulation 3 (5) (c) is met. This
will not always be straightforward. It will usually be a matter of appropriate inference
from the available evidence to determine whether or not the likes of Mrs Bradford
knew or could reasonably have been expected to know of the fact in question and
that it was relevant to the decision.
On the basis of the facts as stated in Mrs Bradford's case, it would seem to me to be
a reasonable inference from those facts that she knew the true state of affairs and
that it was relevant to the decision. I would therefore conclude that the departmental
decision maker was entitled to revise the original decision, and to remove her
entitlement to the higher rate of the mobility component from 26/4/10.
Supersession
Supersession, on the other hand, involves changing an existing decision either by
removing entitlement or by changing entitlement effective from some later date. For
example, someone in receipt of an existing award of the mobility component may
apply to have that decision superseded by including some element of the care
component.
Although supersession on the basis of error of law or ignorance or mistake as to
material fact is a competent ground for supersession, the vast majority of
supersession decisions are based upon the fact that there is alleged to be a relevant
change of circumstances.
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Most commonly, an appellant will apply to have a decision superseded on the basis
that their condition has deteriorated. The Secretary of State is also perfectly entitled
to supersede an existing award if they receive information tending to suggest that an
appellant's condition has improved.
In many ways supersessions are easier to deal with since usually all the tribunal has
to establish is whether or not there has been any relevant change of circumstances
since the original decision. If the answer to that question is "no" then that is an end of
the matter and the original decision still stands since there are no grounds to
supersede. If, on the other hand, the answer to the question is "yes" then the tribunal
goes on to determine what the new award should be by applying the criteria for
entitlement in the normal way.
From What Date Is a Supersession Effective?
The general rule (which can be found in section 10 (5) of the Social Security Act
1998) is that the supersession takes effect from the date of the decision or the date
the claimant applies for it. In other words, if the new (supersession) decision is made
on the Secretary of State's initiative, the decision is effective from the date of that
new decision.
On the other hand, if the new (supersession) decision follows from an application
made by the benefit recipient, then it becomes effective from the date of his/her
application.
Sadly, there are a number of important exceptions to this simple general rule. The
devil is in the detail and this can be found in regulation 7 of the Social Security and
Child Support (Decisions and Appeals) Regulations 1999.
The main issues are similar to (but not quite the same) as those pertinent to our
consideration of revisions being:

Whether or not the new decision is more or less advantageous to the claimant;

Whether the original decision was a "disability benefit decision" and

Whether or not the claimant knew or could reasonably have been expected to
know that the change of circumstances should have been notified.
In a change of circumstances supersession where the new decision is not
advantageous to the claimant (i.e. their benefit is reduced or removed) the
supersession decision becomes effective from the date of the change (regulation 7
(2) (c) (iv) or (v)).
However, this rule is varied where the change of circumstances relates to the
disability conditions. Regulation 7 (2) (c) (ii) provides that in the case of a disability
benefit decision where there has been a failure to notify a change of circumstances
which the claimant knew or could reasonably have been expected to know should
have been notified, the supersession is effective from the date on which the claimant
ought to have notified the change.
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In other words, if it can be established that the claimant could reasonably have been
expected to know that the change of circumstances should have been notified and
failed to make appropriate notification, the decision is effective from the date upon
which the change ought to have been notified.
On the other hand, if it cannot be established that the claimant knew or could
reasonably have been expected to know the change of circumstances should have
been notified, the decision only takes effect from the date of the supersession
decision.
Once again, this is frequently a difficult question of fact which is often only resolvable
by inference from the available evidence.
If the new decision is advantageous to the claimant (i.e. an increased award of
benefit) the new decision can be effective from the date of the change but only where
the supersession request from the appellant is made within one month of the change
occurring (regulation 7 (2) (a)). Regulation 8, in theory at least, provides that this one
month period may be extended up to 13 months from the date of the relevant change
where the appellant can demonstrate that it was not practicable for him to notify the
change of circumstances within one month of it occurring. Otherwise, the new
decision is effective from the date of the application.
Supersession on basis of ignorance or mistake as to material fact
Although, as indicated, most supersession decisions are premised upon a change of
circumstances, it is nevertheless competent to supersede on the basis of ignorance
or mistake as to material fact (regulation 6 (2) (b)).
However, this is only competent in so far as an application from the claimant is
concerned where the time limits in relation to applications for revision have expired.
The Secretary of State, as already explained, is entitled to revise on these grounds at
any time.
The only other point to make is that, since supersession on this basis does not come
within any of the exceptions in regulation 7, the effective date of the supersession is
determined in accordance with the rule in section 10 (5) of the Social Security Act
1998. In other words, the effective date will be the date when the claimant makes the
application and the application cannot therefore be retrospective in its effect.
Please also note that where it might appear that there is a choice between revision
and supersession, only revision will be competent. Regulation 6 (3) provides that a
decision which can competently be revised may not be superseded save in very
restricted circumstances which you are most unlikely to see in practice.
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Supersession: some worked examples
Mr Carlisle
Mr Carlisle is a 60-year-old gentleman suffering from a variety of different health
problems. In addition, he has learning difficulties which are described as "moderate"
has a low IQ and is illiterate.
He had been in receipt of incapacity benefit (IB) for a number of years, and was then
migrated onto Employment and Support Allowance (ESA). Unlike DLA (where you
are perfectly entitled to either start or continue in work), IB/ESA claimants cannot
both work and receive IB/ESA, (except under the limited “permitted work” rules,
which are not relevant to this example).
Information reaches the ears of departmental officials to the effect that Mr Carlisle
started part time employment in September 2008. Subsequent investigation reveals
that he has been employed on a part-time basis (20 hours per week) working in a
local timber yard. His duties are basically to take bags of kindling from one part of the
timber yard to a sales point (a large hut) where he sells these bags of kindling direct
to the public. He is closely supervised by his employer who is usually on site and who
is sympathetic to Mr Carlisle and his family.
He has been in receipt of the higher rate of the mobility component since 21/6/07. As
a result of the investigation into his incapacity benefit claim, departmental decision
makers reconsider his entitlement to disability living allowance.
They supersede his award of the higher rate of the mobility component from the point
when he started part time employment in September 2008. He appeals. His
representative comes in on the morning of the appeal with significant new medical
evidence demonstrating that his condition has not improved but has in fact, slowly
deteriorated.
The case set out in the Secretary of State's written response is to the effect that there
has been a relevant change of circumstances, namely that his mobility has improved
as evidenced by the nature of his employment. He is able to walk up and down the
timber yard and carry bags of kindling to and fro.
The first task of the tribunal is to establish whether or not there has, in reality, been
some relevant change of circumstances. This example has been chosen as the
Secretary of State's decision makers frequently latch onto employment as
demonstrating a relevant change of circumstances when the truth might lie
elsewhere.
If the tribunal concludes that there has, in reality, been no relevant change of
circumstances, then the appropriate decision is simply to say so and allow the
appeal. The result is that he remains entitled to the higher rate of the mobility
component. Whether or not the tribunal can or should consider either revision or
supersession on some other basis will be discussed later.
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If however, the tribunal is satisfied, for any reason, that there has been a relevant
change of circumstances, then it must go on to consider (since this is a "disability
benefit decision" in that it is the basic criteria for entitlement which are being
engaged) whether or not Mr Carlisle either knew or could reasonably have been
expected to know that there had been a relevant change of circumstances and that
he ought to have notified departmental officials of this change (regulation 7 (2) (c)
(ii)).
This is not straightforward. The test is one of what is reasonable in the circumstances
and will, once again, usually be a matter of necessary inference from the known
facts. Given what we know of Mr Carlisle, the appropriate inference may very well be
that he could not reasonably have been expected to know that there had been a
relevant change of circumstances which he should have reported.
If this were the tribunal's conclusion, then the supersession decision cannot be
effective from the date of the change but would only be effective from the date of
decision. In other words, Mr Carlisle would lose his entitlement to the higher rate of
the mobility component but only from the date of the supersession decision.
However, as indicated above, even where the tribunal is satisfied that the Secretary
of State's assertion that there has been a relevant change of circumstances is clearly
wrong, the tribunal has the power to correct defective decision-making at first-tier
level by substituting its own decision.
In Mr Carlisle's circumstances, the tribunal is entitled to go on to consider whether or
not the original decision to award him higher rate mobility in the first place should
properly be revised on the basis that, at that time, the original decision maker was
ignorant or mistaken as to some material fact (relating to Mr Carlisle's ability to walk).
However, the tribunal is not entitled to subject Mr Carlisle to "trial by ambush". It
would need to advise Mr Carlisle of its intention to consider this matter and, at the
very least, give him an opportunity of an adjournment to reflect upon his position. As
to this matter more generally, please read Adrian Rhead’s excellent article in judicial
information bulletin number 57. Bluntly, like Adrian, I often consider that this is a
matter best left to the Secretary of State.
Mrs Durham
Mrs Durham is a 56-year-old lady suffering from fibromyalgia. She has been in
receipt of an award of the lower rate of the mobility component and the lowest rate of
the care component since February 2007.
She makes an application for supersession of her existing award and makes plain
that she seeks an award of the higher rate of the mobility component and the middle
rate of the care component. Her application is dated 20/3/12.
On receipt of her application, the Secretary of State refers her for assessment by a
health care professional (HCP).
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The subsequent HCP report is unsympathetic. The HCP considers that she is
capable of walking several hundred metres before the onset of severe discomfort. He
does not identify any significant need for assistance in connection with her bodily
functions. For good measure, he considers that she is perfectly capable of preparing
a main cooked meal for herself.
On receipt of this information, the Secretary of State then removes her award of both
components. The Secretary of State's decision is effective from the date upon which
it is made. She appeals. In the written response, the Secretary of State's decision
maker indicates that the supersession is based upon a relevant change of
circumstances, namely that her condition has improved, as evinced by the recent
HCP report.
The first matter for the tribunal to determine is whether or not there are any grounds
upon which it is appropriate to supersede her existing award. The important point to
emphasise is that the tribunal cannot change her award simply because it does not
agree with it. Before doing so, it must identify appropriate grounds to justify
supersession before it is able to interfere with her existing award.
In many cases, the fact that there has been a relevant change of circumstances will
be obvious from the known facts. For example, someone has had a hip replacement
or heart bypass operation which has clearly been successful and significantly
improved their functional ability.
However, in many cases (and Mrs Durham is one of them) the situation will be much
less clear. The new HCP report does not necessarily demonstrate that she has
improved. It may simply represent a different opinion based upon essentially the
same facts.
If the tribunal concludes that there has, in reality, been no change of circumstances,
then the obvious course is to say so, and allow the appeal on the basis that there are
no grounds to supersede the existing award. She keeps her entitlement.
If, on the other hand, the tribunal considers that there has been a relevant change of
circumstances, then there are grounds to supersede and the tribunal is then obliged
to review her entitlement to disability living allowance and make whatever award it
considers appropriate. If it accepts Mrs Durham's evidence which is to the effect that
she now meets the criteria for an award of the higher rate of the mobility component
and the middle rate of the care component, then it will make that award. The new
award will be effective from the date of her application for supersession.
If the tribunal prefers the evidence of the HCP report, then it will confirm the
Secretary of State’s decision to remove her award effective from the date of that
decision.
As with Mr Carlisle's appeal, it is open to the tribunal to consider either revising the
original award or to supersede the award from an earlier date than that selected by
the Secretary of State. However, as with Mr Carlisle, fairness dictates that Mrs
Durham has to be advised about this possibility (Adrian Rhead's article again).
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Mr Exeter
Mr Exeter is an 82-year-old gentleman who has been in receipt of the higher rate of
attendance allowance for a number of years. His wife is his principal carer but his
health gradually deteriorates to an extent where she is no longer able (given her own
health problems) to properly look after him. As a consequence, he goes into a care
home which is partially funded by his local authority on 1/3/11.
Neither Mr Exeter not his wife are aware that they should notify the appropriate
Department of the fact that he has gone into care.
The relevant Department only finds out about the fact that Mr Exeter has gone into
care on 29/4/13. On the same date, a departmental decision maker supersedes his
award of attendance allowance by determining that attendance allowance is not
payable to him with effect from 30/3/11.
To understand the context, you need to know that regulations 7 and 8 of the Social
Security (Attendance Allowance) Regulations 1991 provide that attendance
allowance is not payable where the individual in question is resident in a care home
in the circumstances specified in regulation 7. Regulation 8 provides that attendance
allowance can be paid for only the first 28 days following the persons entry into the
care home.
There are similar provisions in relation to disability living allowance which are
contained in the Social Security (Disability Living Allowance) Regulations 1991.
The important point to emphasise here is that, in order to justify this supersession
decision, all that the Secretary of State's decision maker requires to do is to
demonstrate that there has been a relevant change of circumstances (Mr Exeter's
entry into the care home).
As explained above, regulation 7 (2) (c) (ii) provides that, in the case of a disability
benefit decision where there has been a failure to notify a change of circumstances,
the supersession decision is effective from the date upon which the claimant ought to
have notified the change. This rule does not apply where the claimant establishes
that they could not reasonably have been expected to know that the change should
have been notified.
However, in Mr Exeter's case, as the criteria for an attendance allowance are not
otherwise engaged, this is not a "disability benefit decision" and the Secretary of
State does not therefore have to discharge that additional burden. The Secretary of
State will be entitled to supersede his award purely on the basis that he has gone
into a care home.
However, if for example, instead of going into a care home, the change of
circumstances had been that Mr Exeter's health had significantly improved (for
example he had undergone a successful hip replacement) the Secretary of State
would only be entitled to supersede from the date the improvement took place if he
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were able to establish that this was a change which Mr Exeter knew or could
reasonably have been expected to know should have been notified.
If Mr Exeter, in these circumstances, was able to establish that he could not
reasonably have been expected to know that the change should have been notified,
then the supersession decision can only be effective from the date upon which it is
made and cannot have the retrospective effect indicated above.
PIP
As indicated at the outset, the rules governing revision and supersession in relation
to PIP are very similar to, but not quite the same as the rules which govern revision
and supersession in relation to DLA, and AA appeals.
I will now try and deal with the differences.
The rules themselves are contained within the Decisions and Appeals Regulations
2013.
Revision
The Secretary of State retains the power to revise a decision either for “official error”
(as defined), or on the basis that the original decision was taken in ignorance or
mistake as to some material fact or in any case where an appellant appeals against a
decision.
The appellant retains the power to seek a revision of a decision but only (as with
DLA) where the application is made within specified time limits. There is now a new
provision which obliges an appellant to request a revision of the PIP decision before
the appellant is entitled to appeal against it (regulation 7 (2)).
However, in the case of revision based upon ignorance or mistake as to material fact,
the additional burden which the Secretary of State continues to shoulder in DLA
appeals imposed by regulation 3 (5)(c) of the Decisions and Appeals Regulations
1999 (as discussed in the case of Mrs Bradford) has been removed in relation to PIP
appeals.
In other words, the Secretary of State no longer needs to demonstrate that the
claimant knew or could reasonably have been expected to know of the fact in
question and that it was relevant to the decision. In a PIP appeal, all the Secretary of
State now requires to do is to demonstrate that the original decision was the based
upon some ignorance or mistake as to material fact and that the decision was, as a
consequence, more advantageous to the appellant than it otherwise would have
been.
Supersession
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The rules governing supersession of existing awards are essentially the same as
those already discussed in relation to DLA and AA. However, we now have a new set
of regulations in the Universal Credit etc (Decisions and Appeals) Regulations 2013.
These new regulations have created two new grounds of supersession insofar as PIP
is concerned.
The first of these is where the Secretary of State receives medical evidence from a
healthcare professional or such other person as is approved by the Secretary of
State. This fact in itself allows the Secretary of State to supersede an existing award
The new power is contained within regulation 26 (1) (a).
Regulation 26(1)(b) allows the Secretary of State to supersede a PIP decision where
a determination has been made that the claimant is to be treated as having limited
capability for work in accordance with regulations 16,21,22 or 29 ESA regulations
2013 or Part 5 of the universal credit regulations.
In addition, the Secretary of State may remove an existing award of PIP where an
appellant does not comply with the evidence gathering processes which are
associated with the assessment (regulations 8 and 9 of the PIP regulations). This
appears to link with the otherwise rather odd provision in regulation 26 (2) of the
Universal Credit etc (Decisions and Appeals) Regulations 2013.
In addition, a decision to supersede on this basis can itself be the subject of a
revision if it contains an error to which the claimant did not materially contribute
(regulation 18 (3)) of the last mentioned regulations. In effect, where this power is
used, it would allow a claimant’s benefit to be reinstated from the date of
disallowance
Effective Date of Supersession
The general rule continues to be that set out at section 10 (5) of the Social Security
Act 1998. As indicated above, this provides that the supersession decision will be
effective either on the date was made or, where the application is made by the
appellant, on the day upon which the appellant makes his application.
The detailed rules are contained in part 2 of schedule 1 of the 2013 Decisions and
Appeals regulations.
They operate in much the same way as described above in relation to DLA and AA
appeals but the language used is different.
Supersession for change of circumstances
The rules continue to distinguish between decisions which are advantageous to the
appellant from decisions which are not. The general rule is that a change of
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circumstances is effective from the date upon which it occurs or is expected to occur
(paragraph 12 of schedule 1). For example, this will allow the Secretary of State to
supersede a decision by reducing or removing entitlement where a claimant’s
condition has improved and this decision will be effective from the date the change
occurred whether or not the appellant reported the improvement. However, the rigour
of this rule is softened by paragraph 13 of schedule 1 which provides that the
decision will not take effect from the date of the change if the claimant could not
reasonably have been expected to know that the change should have been notified.
In effect, this replicates the same rule which applies in relation to DLA and AA
decisions.
Where the supersession decision is advantageous to the appellant (i.e. increases his
entitlement) the change of circumstances upon which the supersession is based
must be reported within one month of the change occurring. The rigidity of this rule is
only slightly relaxed by provisions which allow the one month period to be extended
for up to a maximum period of 13 months, but only in very limited circumstances.
However, paragraphs 16 and 17 of schedule 1 preserve the existing rules applicable
to DLA and AA in that the effective date of the supersession decision will be the date
upon which a change of circumstances should have been reported where the
Secretary of State is satisfied that the claimant could reasonably have been expected
to know that the change should have been notified.
Paragraph 15 of schedule 1 contains an additional provision which, at first glance, is
not easy to understand. It provides that, where the change of circumstances is
relevant to entitlement to a particular rate of PIP, the change must be notified within
one month of satisfying the conditions of entitlement to that particular rate.
So, for example where C has an existing award of the standard rate of the daily living
component but his condition, for some reason, dramatically deteriorates to the extent
that he will now meet the conditions for an award of the enhanced rate of that
component, the one month period for reporting the change only commences 3
months from the date of the change occurring.
This is clearly intended to apply the three-month prequalifying period to applications
for supersession.
As indicated above, if the supersession decision is not advantageous to the appellant
and involves a personal independence payment decision, the supersession decision
will be effective from the date upon which the change occurred.
Finally, where the change of circumstances does not involve the criteria for
entitlement to PIP set out in sections 78 and 79 of the Welfare Reform Act 2012 (i.e.
it is what I describe as a “non-disability benefit decision") the decision will be effective
from the date upon which the change occurs.
So, for example, where someone goes into a care home and therefore benefit
ceases to be payable, the supersession decision is effective from the date upon
which that change occurred (as with the case of Mr Exeter).
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Overpayment Decisions (DLA, and AA)
Up until now, I have been exclusively concerned with the grounds upon which it is
appropriate to change an earlier decision by either revising or superseding it. We
have only been concerned with entitlement. It is important to understand that all the
issues I have been discussing such as whether or not the decision is more or less
advantageous, whether or not it is a disability benefit decision etc are pertinent only
to the issue of revision/supersession.
However, when we come to consider the issue of overpayment, an entirely different
set of considerations now requires to be taken into account. The subject of appeals
which involve alleged overpayments of DLA is rather complex. You will find on the
SEC website a paper which was produced several years ago for the panel member
refresher programme and which is entitled "Lecture Notes, Overpayments" by my
colleague Steve Jones and which explores the whole topic in detail. You would do
well to read this when you encounter your first DLA overpayment appeal.
To cut a long story short, section 71 (5A) of the Social Security Act 1998 provides
that any overpayment which might have occurred is not recoverable unless and until
the decision creating the original award has been either revised or superseded by a
subsequent decision. In other words, you must first be satisfied that there has been a
valid revision or supersession of the original decision before you even begin to
consider, quite separately, the overpayment issue.
Decision makers normally make 2 separate decisions, an earlier decision which
affects entitlement by revising or superseding the original decision and then, usually
several weeks later, a quite separate decision on overpayment which, of course, is
based upon the revision/supersession decision. Although the 2 decisions are selfevidently very closely connected, it is essential that you keep the concepts pertinent
to revision/supersession quite separate from those pertinent to overpayment.
Once you are satisfied that there has been a valid revision/supersession, you then go
on to consider the issues pertinent to overpayment.
The authority to recover overpayments is contained in section 71 (1) of the Social
Security Administration Act 1992. This provides that:
"Whether fraudulently or otherwise, any person has misrepresented, or failed to
disclose, any material fact and in consequence of the misrepresentation or failure –
(a) a payment has been made in respect of benefit to which this section applies; or
(b) any sum recoverable by or on behalf of the Secretary of State in connection with
any such payment has not been recovered,
the Secretary of State shall be entitled to recover the amount overpaid as a
consequence of the misrepresentation or failure to disclose.
Accordingly, the 2 issues for the tribunal are to determine whether or not there has
been either a misrepresentation or failure to disclose.
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"Misrepresentation" is dealt with in Steve's article. The only point I would make is that
it does not need to be fraudulent and even an innocent misrepresentation can be
relevant.
When considering "failure to disclose" we must pay close attention to regulation 32 of
the Claims and Payments Regulations.
This comes in 2 parts. Regulation 32 (1A) requires claimants to
"Furnish in such manner and at such times as the Secretary of State may determine
such information or evidence of the Secretary of State may require in connection with
payment of the benefit claimed or awarded."
This is normally fairly straightforward. The Secretary of State will produce, by way of
example, a copy of an information leaflet which is a document sent to all benefit
recipients and which explains to them the type of changes they require to report and
to whom they have to be reported.
All the Secretary of State requires to do is establish that this obligation was placed
upon the appellant and that the appellant has failed to appropriately discharge it.
However, even where this is not established, the tribunal nevertheless requires to
consider the terms of regulation 32 (1B). This requires beneficiaries to:
"Notify the Secretary of State of any change of circumstances which he might
reasonably be expected to know might affect ".
his entitlement to benefit.
This last provision, when it requires to be considered, invests the tribunal with a good
deal of discretion since the test is one of reasonableness in which all circumstances
require to be taken into account.
Overpayments: some worked examples
Mrs Bradford
Once the position has been reached where there is a valid revision of her entitlement
and the Secretary of State has made an overpayment decision, the issue for the
tribunal is whether or not there has been either misrepresentation or alternatively a
failure to disclose.
The issue in Mrs Bradford circumstances is likely to be closely focused on
misrepresentation. You already know that she represented, in her original claim pack
that she could only walk 25 metres before the onset of severe discomfort. If, on the
available evidence, your tribunal concludes that this amounted to misrepresentation,
then that is all the Secretary of State requires to demonstrate unless some issue is
taken in relation to the period or calculation of the resulting overpayment.
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Mr Carlisle
The recoverability of the DLA overpayment is not so straightforward. Even if the
tribunal accepts that there has been a valid revision of entitlement, the tribunal
requires to be satisfied that he has somehow either misrepresented some material
fact or failed to disclose some material fact.
On the stated facts, it is not at all clear whether or not he has done so. This would
very much depend upon the information which the Secretary of State produces in an
attempt to establish some form of misrepresentation. Failure to disclose is unlikely to
be much of an issue.
For example, it is not appropriate to conclude that there has been misrepresentation
because an appellant asserts that they are unable to walk 50 metres before the onset
of severe discomfort when the conclusion of the tribunal is that they were, in fact able
to walk 75 metres before the onset of severe discomfort. A mere difference of opinion
in relation to factual matters is an unsatisfactory basis upon which to conclude that
there has been misrepresentation. Something more substantial is usually required.
Mrs Durham
The situation is even more complex in relation to Mrs Durham. As the Secretary of
State's decision only took effect from the date upon which it was made, no issue of
overpayment arises.
In her case, there will be no issue of overpayment unless the tribunal chose to
exercise its own discretion to either revise or supersede her award from some earlier
date than that identified by the Secretary of State.
As a consequence, it will therefore generally only be in those cases where the
tribunal is satisfied that either:

the original decision is to be revised due to ignorance or mistake as to material
fact or;

there has been a relevant change of circumstances and the appellant could
reasonably have been expected to know that there had been a change and
that it should have been reported
that any issue of overpayment falls to be considered.
However, determining exactly why and when an appellant should have reported a
change can be extremely difficult. This is particularly so when changes are subtle
and occur over a lengthy period of time. It is one thing to conclude that a change
should have been reported when someone has an important operation (hip
replacement, heart bypass etc). It is quite another matter where they are suffering
from a variable condition such as fibromyalgia.
In such circumstances, the tribunal might be driven to the conclusion that, even
although they are satisfied entitlement requires to be revised or superseded, it is not
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satisfied that there has been any misrepresentation or failure to disclose on the part
of the appellant and that therefore any overpaid benefit is not recoverable.
Everything will depend upon the precise circumstances of the case you are dealing
with.
Mr Exeter
You will remember that he is the 82-year-old gentleman who goes into a care home.
His circumstances do not seem to raise any issue of misrepresentation. Accordingly,
insofar as the issue of overpayment is concerned, the tribunal's attention will be
closely focused upon the terms of regulation 32 of the claims and payments
regulations which deal with the duty to disclose.
As indicated above, regulation 32 (1A) places all benefit recipients under an
obligation to report changes which they have been advised they require to report.
An information booklet is issued routinely to all benefit recipients and, in the case of
both DLA and AA, they are placed under an obligation to report the fact that they go
into a residential care home (and many other things besides).
The fact that both Mr Exeter and his wife were not very well and may genuinely not
have understood the nature of this obligation will not assist them. The obligation in
terms of regulation 32 (1A) is strict in the sense that all the Secretary of State
requires to do is to demonstrate that he was placed under the obligation (by having
the information leaflet sent to him) that he was aware of the material fact (his entry
into a care home) and that he failed to make appropriate notification.
Regulation 32 (1B) will not normally require to be considered unless there has been
some failure on the part of the Secretary of State which makes it inappropriate to
apply the provisions of regulation 32 (1A), for example, the information leaflet
containing the obligation was never sent to him.
Regulation 32 (1B) does, however, allow the tribunal to take into account the
particular circumstances (including the health) of the benefit recipient in determining
whether or not the "he might reasonably be expected to know" test is met.
Revision and Supersession, Some General Advice
Perhaps the most obvious advice is to remind you that this paper and the additional
papers on the SEC website are a resource which you are expected to use and which
you should read (and standing the complexity of the subject, perhaps re-read)
whenever your preparation uncovers a revision/supersession issue.
Representatives will occasionally encourage you to deal with the
revision/supersession issue as a preliminary point on the basis that, if successful,
you will not require to consider the merits. Although superficially attractive, such an
approach is seldom the best option.
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Experience has shown that it is, generally speaking, much better to proceed with the
hearing in the usual fashion and to take evidence in the usual way. Having done so,
the revision/supersession point can then be considered with the advantage of a
detailed understanding of the evidence.
"Change of circumstances" supersessions are generally fairly straightforward.
Remember, however, that you must carefully consider the date from which any
supersession will be effective.
Where you are dealing with a revision on the basis of ignorance or mistake as to
material fact it is often helpful to structure your deliberations as follows:




What were the material facts?
Was the original decision maker ignorant or mistaken as to any of these facts?
If the answer is "no" there are no grounds to revise and the original decision
must stand (unless it is appropriate to supersede it).
If the answer is "yes" grounds for revision have been established and the
tribunal then goes on to consider its own decision on the merits of the case.
In your preparation, clearly identify the decision which is to be the subject of the
revision/supersession. Don't worry if, as often happens, the departmental decision
maker has got revision/supersession mixed up. The tribunal can correct this, if
necessary by switching from revision to supersession and vice versa (R(IB) 2/04).
At the stage of preparation, preview and hearing (and, for Tribunal Judges, when
preparing a statement of reasons), always keep at the front of your mind that neither
the departmental decision maker nor the tribunal can change a decision simply
because it does not agree with it. You must therefore remain closely focused upon
the fact that there have to be appropriate grounds to either revise or supersede.
Although these appeals can often appear complex, having heard the evidence,
sometimes the question "Are there grounds to revise or supersede?" is simply
answered "no" in which case revision or supersession is not appropriate and the
original decision stands.
Overpayments (PIP)
The situation in relation to alleged overpayments of PIP is the same as that in
relation to DLA and AA by virtue of paragraph 10 of schedule 9 to the Welfare
Reform Act 2012 which amends section 71 (11) of the Social Security Administration
Act 1992 by including PIP in the list of benefits to which the general power to recover
overpayments contained in section 71 (1) applies.
The one additional point which is perhaps worth making is that even although the
Secretary of State, when revising a PIP decision does not have the additional burden
imposed by regulation 3 (5) (c) in relation to DLA and AA revisions, it continues to be
necessary to demonstrate that there has either been misrepresentation or failure to
disclose before any consequential overpayment will be recoverable.
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Finally, the provisions in regulations regulation 32 (1A) and 32 (1B) are effectively
repeated, insofar as PIP is concerned by regulation 38 (3) and (4) of the Universal
Credit etc (Claims and Payments) Regulations 2013.
Bob Forrest
Revised December 2013
Further revised by Isabel Montgomery April 2015
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