NI260 - A guide to Revision, Supersession and Appeal (April 2009)

Previous / Contents / Next

Supersession

• Supersession following a reasoned application
• What the Decision Maker can do following an application for supersession
• Supersession – change of circumstances
• Other circumstances where supersession may occur

Supersession applies to all benefits (except for Social Fund payments) in two circumstances: [SS Act 1998 10, SSCS (D&A) Regs 1999 6]

• where you make a reasoned application to have a decision changed after one month and revision does not apply
• where there is a relevant change in your circumstances

An application can be made in writing, by phone or in person.

top of page

Supersession following a reasoned application

If you apply to have a decision changed after one month, and none of the above exceptions (which apply to revision) applies to you, the decision can only be superseded. [SSCS (D&A) Regs 1999 6]

The key difference between supersession and revision is that:

• you have to satisfy specified reasons
• if your application is successful, payment of benefit is generally restricted. For further information see also the effective date of payment following a supersession.

A Decision Maker may supersede a decision in the following circumstances (but see also other circumstances where supersession may occur):

• where a decision was made in ignorance of a material fact, or was based on a mistake about a material fact
• where a decision is made in error of law
• where a qualifying benefit is awarded. Where you are in receipt of a benefit (known as the linked benefit) and either you or a member of your family is awarded another benefit (known as the qualifying benefit), which has the effect of increasing the linked benefit, the linked benefit can be superseded
• where a decision was made which does not carry the right of appeal.

Please note that you may be asked to provide more information to support your application. If this happens, you will generally have one month to reply. If you do not reply within the time limit, the application is likely to be decided on the basis of the original application.

top of page

What the Decision Maker can do following an application for supersession

1. The Decision Maker can change the decision to award more or less benefit. For the effective date of any change see below.
2. The Decision Maker can make a decision not to supersede. He will do this where it is decided that, while the application either changes the basis of the decision or has the potential to change the decision, it does not actually change the rate of benefit in payment. This will still be a decision with dispute and appeal rights.
3. In exceptional circumstances, where it is decided that the application would not, in any way, affect the decision, the Decision Maker can decide to take no further action. That will be the end of the matter – you will not be given further dispute or appeal rights.

Effective date of payment for supersession following a reasoned application - not change of circumstances

The general rule is that a superseded decision takes effect from the date of application for supersession or, where the Decision Maker initiates the supersession, from the date of their decision. There is no backdating. [SS Act 1998 10(5)]

For example:

The Decision Maker agrees that the decision made on 1 May was made because of error of fact, but because there are no reasons for accepting the application as a late application for revision, the decision can only be superseded. The decision is superseded from the date of the application, that is 1 September.

Exceptions to the rule about effective date of payment for supersession following a reasoned application

[SSCS (D&A) Regs 1999 7]

The general rule described in the previous section may not apply in the following cases:

• where a qualifying benefit is awarded, the linked benefit can be superseded from the date the qualifying benefit was awarded from
• where a Jobseeker’s Allowance (JSA) sanction is lifted, the effective date is the date the sanction is lifted
• where there has been a delay in including an amount of housing costs in your award of Income Support, JSA or Pension Credit, because the necessary information was not available, benefit can be backdated up to eight weeks
• where an Incapacity Benefit or Severe Disablement Allowance (SDA) decision can be superseded because you are exempt from the ‘personal capability assessment’, benefit is backdated to the date of exemption
• where you become entitled to Disability Living Allowance (DLA) higher rate care component and as a result your Incapacity Benefit should have been paid at the long-term rate after 28 weeks (instead of after 52 weeks), the long-term rate can be fully backdated.

top of page

Supersession – change of circumstances

[SSCS (D&A) Regs 1999 6(2)]

Any decision (including a revised decision), except a decision refusing benefit, made by a Decision Maker can be superseded for a relevant change of circumstances or where such a change is expected. The change can be instigated by the claimant or the Decision Maker.

A decision can be changed at any time where there is a relevant change of circumstances. Even where the change occurs within one month of the decision that decision would be superseded, not revised.

You can notify a change of circumstances in writing, by telephone or in person. In writing includes fax and e-mail. A change should be notified to the office whose address is indicated on the last decision notification you received. If you have any doubts you should get in touch with your local office before notifying the change.

Please note that the following are not relevant changes of circumstances: repayment of a student loan and, in certain cases, absence from a nursing or residential home for a period of less than a week.

Effective date of payment for supersession following a change of circumstances

[SSCS (D&A) Regs 1999 7(2)]

There are important rules about the date of payment which you should note, otherwise you may lose benefit.

Decision advantageous

Where:

• the notification of the change is received within one month of the change, payment will be increased from the date of change (subject to benefit week payment rules)
• the notification is received more than a month after the change, payment will be increased only from the date of notification (subject to benefit week payment rules).

Decision not advantageous

Where the change results in less benefit being due, the decision is effective from the date of change (subject to benefit week payment rules). The rules for disability benefits are slightly different. If you could not reasonably have been expected to know about the change, then the new decision will be effective from the date the change was reported.

Other circumstances where supersession may occur

Late notification

[SSCS (D&A) Regs 1999 8]

The time limit can be extended up to a maximum of 13 months where there are special circumstances for the delay in notifying the change. All the following conditions must be satisfied for a late notification to be accepted:

• it is reasonable to grant the application
• the change is relevant to the decision to be superseded
• special circumstances apply for why the change could not have been notified within one month.

Please note that the later you notify the change, the more compelling the special circumstances for lateness must be. And also, that when deciding whether it is reasonable to grant the application, the Decision Maker will take no account of:

• ignorance or misunderstanding of the law or time limits
• the fact that a Commissioner or court has taken a different view of the law from that which was previously understood and applied.

The Decision Maker makes the change

[SSCS (D&A) Regs 19996(2)(b)(ii) & 7(2)(bb)]

When the Decision Maker starts action leading to a supersession, the change to benefit will be from the date they started this action. It does not matter when the superseding decision is actually made.

Certain Attendance Allowance (AA) or Disability Living Allowance (DLA) changes

[SSCS (D&A) Regs 1999 7(9)]

If you are applying for a higher rate DLA and AA component, or another DLA and AA component, benefit can be paid from the date you first satisfy the 3- or 6-month qualifying period, as long as you notify the change of circumstances within one month of first completing the qualifying period.

Jobseeker’s Allowance

[SSCS (D&A) Regs 1999 6(2)(f) &7(8)]

If the Decision Maker imposes a sanction on your payment of Jobseeker’s Allowance, the decision shall take effect from the first day of the week following the date on which it is determined that a sanction is to be applied, or the first day of the period of the sanction, as appropriate.

Failure to attend a Work Focused Interview

[SSCS (D&A) Regs 1999 6(2)(h) &7(2)]

If you have been held not to have attended a Work Focused Interview and you have either reached the age of 60 or you no longer live in an area subject to Work Focused Interviews, the decision shall take effect from the date of the normal rules concerning an advantageous change of circumstances.

Fraud or breach of Community Order

[SSCS(D&A) Regs 1999 6(i)(j)(k) & 7(27) and (28)]

If a Decision Maker reduces or stops benefit because you have been convicted of certain fraud offences or breached a community order, the decision shall take effect from the first day of the disqualification period as set out in the Social Security (Loss of Benefit) Regulations 2001 or the beginning of the period specified in the Social Security (Breach of Community Order) Regulations 2001, as appropriate.

Pension Credit and the Assessed Income Period

[SSCS (D&A) Regs 1999 6(l) & 7(29)]

There are special rules for Pension Credit. If the Assessed Income Period has ended or is about to end, the superseding decision shall take effect from the day following the day on which the Assessed Income Period ended or is due to end if that is the first day of your benefit week, but if not, the next such day.

The Personal Capability Assessment

[SSCS (D&A) Regs 1999 6(2)(g) & SA Act 1998 10(5)]

Where, having already passed the PCA, you have failed to satisfy the Decision Maker that you are still incapable of work, the effective date will be the date the Decision Maker makes that decision.

A change in the legislation

[SSCS (D&A) Regs 1999 6(2)(a)(i) & 7(30)]

Where there has been a change in the legislation, the relevant change of circumstances takes effect from the date the new legislation had effect.

Superseding a tribunal’s or Commissioner’s decision

[SSCS (D&A) Regs 1999 6(2)(c)]

Decisions of tribunals and Commissioners can be superseded in either of the following situations:

• where they are made in ignorance of a material fact, or based on a mistake about a material fact
• where there has been a relevant change of circumstances since the decision was given.

If the decision to be superseded is more advantageous to you than it would otherwise have been if the tribunal or Commissioner had known all the facts, payment of benefit will be changed from the same date that the tribunal’s decision or Commissioner’s decision took effect. In any other case, the payment would increase from the date of the application or the date the new decision is made. [SS Act 1998 10(5) SSCS Act (D&A) Regs 1999 7(5)]

Supersession – test cases

Where a Social Security Commissioner or a court reinterprets the law in a different case so that the decision that has been made in your case is wrong in law, you can ask for that decision to be superseded. [SS Act 1998 27]

However, payment of any arrears due will usually only be paid back to the date of the Commissioner’s decision or the court’s decision.

Correction of accidental errors

An accidental error in a decision, for example a slip of the pen, can be corrected at any time. You will be given a written notice of the correction. Where this occurs the one month period for disputing or appealing the decision shall start again. [SSCs (D&A) Regs 1999 35]

Decision against which there is no appeal

[SSCS(D&A) Regs 1999 6(2)d)]
If the decision made on your application is one for which there is no right of appeal, eg the amount of benefit allowed by the law, this decision may be superseded.

Where a second benefit is awarded or is increased

[SSCS (D&A)Regs 1999 6(2)(e)]

Where the award of or increase in a second benefit paid to the claimant or a member of their family means that an existing award is affected, the decision on the latter benefit can be superseded.

Entitlement to the severe disability premium (SDP) where a non-dependant’s benefit changes and affects an existing award

[SSCS (D&A)Regs 1999 6(2)(ee)]
If a non-dependant’s benefit entitlement changes such that the claimant can be awarded a SDP, the claimant’s benefit can be superseded and increased from the date that the non-dependant’s benefit changed.

Setting a new Assessed Income Period (AIP) in State Pension Credit

[SSCS (D&A) Regs 1999 6(2)(m)]
Where it has not been possible to set a new AIP because information has not been provided in time but is later provided, the decision awarding SPC will be superseded to set a new AIP from thed ate the information was provided. 

Payment of IS where a tribunal finds someone incapable of work after a previous  tribunal has found the same person capable of work

[SSCA (D&A) Regs 1999 6(2)(n)
Where a second appeal tribunal decides that someone is incapable of work, the decision of a previous tribunal which found the person capable of work, can be superseded to reflect the decision of ther later tribunal. The effective date is the date from which IS was terminated.

State Pension Credit where a lump sum of SP is awarded or re-paid

[SSCA (D&A) Regs 1999 6(2)(o)
Where a claimant to SPC elects for a lump sum payment of SP or re-pays a lump sum, the SPC award can be superseded to reflect these choices.

Employment Support Allowance where there has been a failure determination

[SSCA (D&A) Regs 1999 6(2)(p)]
Where someone fails to take part in a work-focussed health-related assessment or a work-focussed interview, the decision awarding ESA can be superseded, effective from either the 14 week of the award where the failure takes place before that week or from the date of the failure in any other circumstance.

ESA where ESA is paid at a reduced rate because there has been a failure determination and the reduction ceases

[SSCA (D&A) Regs 1999 6(2)(q)]
Where a decision reducing the payment of ESA ceases that decision can be superseded effective from the week in which the reduction stops.

ESA where ESA is not in payment because the claimant failed to attend for medical examination but susbequently does so

[SSCA (D&A) Regs 1999 6(2)(r)]
Where a claimant is treated as not having limited capability frow rok because he failed to attend a medical examination, that decision can be superseded where he subsequetnly attends and found to have limited capability. The effective date will be  either the beginning of the 14th week of the claim if it is the first determination as to capability or the date the claimant applies if later.

Treatment of late or unpaid national insurance contributions

[SSCA (D&A) Regs 1999 6(2)(s)]
Where a contributory benefit has been awarded but at later date the contribution record changes because contributions have been paid late or were unpaid but treated as paid, the benefit-awarding decision can be superseded to reflect the changed record. The effective date is the date from which the record changed.

Previous / Contents / Next