The Social Security (Northern Ireland) Order 1998

Cases of error N.I.

Restrictions on entitlement to benefit in certain cases of error N.I.

F1 27 .—F2 (1) Subject to paragraph (2), this Article applies where—

(a) the effect of the determination, whenever made, of an appeal to a Commissioner or the court ( “the relevant determination”) is that the adjudicating authority's decision out of which the appeal arose was erroneous in point of law; and

(b) after the date of the relevant determination a decision falls to be made by the Department in accordance with that determination (or would, apart from this Article, fall to be so made)—

(i) in relation to a claim for benefit;

(ii) as to whether to revise, under Article 10, a decision as to a person's entitlement to benefit; or

(iii) on an application made under Article 11 for a decision as to a person's entitlement to benefit to be superseded.

(2) This Article does not apply where the decision of the Department mentioned in paragraph (1)(b)—

(a) is one which, but for Article 25(2) or (3)(a), would have been made before the date of the relevant determination; or

(b) is one made in pursuance of Article 26(3) or (5).

(3) In so far as the decision relates to a person's entitlement to a benefit in respect of—

(a) a period before the date of the relevant determination; or

(b) in the case of a widow's payment, a death occurring before that date,

it shall be made as if the adjudicating authority's decision had been found by the Commissioner or court not to have been erroneous in point of law.

(4) In deciding whether a person is entitled to benefit in a case where his entitlement depends on his having been entitled to the same or some other benefit before attaining a particular age, paragraph (3) shall be disregarded for the purpose only of deciding whether he was so entitled before attaining that age.

(5) Paragraph (1)(a) shall be read as including a case where—

(a) the effect of the relevant determination is that part or all of a purported regulation or order is invalid; and

(b) the error of law made by the adjudicating authority was to act on the basis that the purported regulation or order (or the part held to be invalid) was valid.

(6) It is immaterial for the purposes of paragraph (1)—

(a) where such a decision as is mentioned in sub-paragraph (b)(i) falls to be made, whether the claim was made before or after the date of the relevant determination;

(b) where such a decision as is mentioned in sub-paragraph (b)(ii) or (iii) falls to be made on an application under Article 10 or (as the case may be) Article 11, whether the application was made before or after that date.

(7) In this Article—

• “adjudicating authority” means—

  (a)

  the Department;

  (b)

  any former officer, tribunal or body; or

  (c)

  any officer, tribunal or body in Great Britain corresponding to a former officer, tribunal or body;

• “benefit” means—

  (a)

  benefit under Parts II to V of the Contributions and Benefits Act, other than Old Cases payments;

  (b)

  benefit under Part II of the [1975 c. 15.] Social Security (Northern Ireland) Act 1975 (in respect of a period before 1st July 1992 but not before 6th April 1975);

  (c)

  benefit under the [1946 c. 23 (N.I.).] National Insurance Act (Northern Ireland) 1946 or [1966 c. 6 (N.I.).] 1966, or the [1946 c. 21 (N.I.).] National Insurance (Industrial Injuries) Act (Northern Ireland) 1946 or [1966 c. 9 (N.I.).] 1966 (in respect of a period before 6th April 1975);

  (d)

  a jobseeker's allowance;

  (dd)

  [F3 state pension credit;]

  (de)

  [F4 an employment and support allowance;]

  (df)

  [F5 personal independence payment;]

  (e)

  any benefit corresponding to a benefit mentioned in[F6 paragraphs (a) [F7 to (df)]] ; and

  (f)

  any income-related benefit; [F8 and

  (g)

  state pension or a lump sum under Part 1 of the Pensions Act (Northern Ireland) 2015.]

• “the court” means the High Court, the Court of Appeal, the Court of Session, the High Court or Court of Appeal in England and Wales, the[F9 Supreme Court] or the Court of Justice of the European Community;

• “former officer, tribunal or body” means any of the following, that is to say—

  (a)

  an adjudication officer or, in the case of a decision given on a reference under section 19(2) or 23(1) of the Administration Act, a social security appeal tribunal, a disability appeal tribunal or a medical appeal tribunal;

  (b)

  an adjudicating medical practitioner appointed under section 47 of that Act or a specially qualified adjudicating medical practitioner appointed in accordance with regulations under section 60(2) of that Act; or

  (c)

  the National Assistance Board for Northern Ireland, the Supplementary Benefits Commission for Northern Ireland, the Attendance Allowance Board for Northern Ireland, a benefit officer, an insurance officer or a supplement officer.

(8) For the purposes of this Article, any reference to entitlement to benefit includes a reference to entitlement—

(a) to any increase in the rate of a benefit; or

(b) to a benefit, or increase of benefit, at a particular rate.

(9) The date of the relevant determination shall, in prescribed cases, be determined for the purposes of this Article in accordance with any regulations made for that purpose.

(10) Regulations made under paragraph (9) may include provision—

(a) for a determination of a higher court to be treated as if it had been made on the date of a determination of a lower court or a Commissioner; or

(b) for a determination of a lower court or a Commissioner to be treated as if it had been made on the date of a determination of a higher court.

F1 mod. by SR 1999/349, 350

F2 prosp. in pt. certain functions transf. by 2002 c. 21

F3 2002 c. 14 (NI)

F4 Art. 27(7): words in the definition of "benefit" inserted (27.10.2008) by Welfare Reform Act (Northern Ireland) 2007 (c. 2), ss. 28(1), 60(1), Sch. 3 para. 10(5)(a); S.R. 2008/276, art. 2(2)(d), Sch. Pt. 2

F5 Words in art. 27(7) inserted (2.5.2016 for specified purposes, 20.6.2016 in so far as not already in operation) by The Welfare Reform (Northern Ireland) Order 2015 (S.I. 2015/2006), art. 2(2), Sch. 9 para. 39(a); S.R. 2016/215, arts. 2(5)(h)(vi), 3(2)

F6 2002 c. 14 (NI)

F7 Words in art. 27(7) substituted (2.5.2016 for specified purposes, 20.6.2016 in so far as not already in operation) by The Welfare Reform (Northern Ireland) Order 2015 (S.I. 2015/2006), art. 2(2), Sch. 9 para. 39(b); S.R. 2016/215, arts. 2(5)(h)(vi), 3(2)

F8 Art. 27(7)(g) and word inserted (6.4.2016 unless brought into operation earlier by an order under s. 53(1) of the amending Act) by Pensions Act (Northern Ireland) 2015 (c. 5), s. 53(3), Sch. 12 para. 31

F9 Art. 27(7): words in the definition of "the court" substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40(4), 148(1), Sch. 9 para. 67; S.I. 2009/1604, art. 2(a)(d)

Correction of errors and setting aside of decisions N.I.

28 .F10 —F11 F12 (1) Regulations may make provision with respect to—

(a) the correction of accidental errors in any decision or record of a decision made under any relevant statutory provision; and

(b) the setting aside of any such decision in a case where it appears just to set the decision aside on the ground that—

(i) a document relating to the proceedings in which the decision was given was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party's representative or was not received at an appropriate time by the person who gave the decision; or

(ii) a party to the proceedings or a party's representative was not present at a hearing related to the proceedings.

[F13 (1A )F14  In paragraph (1) “decision” does not include any decision made by an officer of the Inland Revenue, other than a decision under or by virtue of Part III of the Pension Schemes (Northern Ireland) Act 1993.]

(2) Nothing in paragraph (1) shall be construed as derogating from any power to correct errors or set aside decisions which is exercisable apart from regulations made by virtue of that paragraph.

(3 )F14  In this Article “relevant statutory provision” means any statutory provision contained in—

(a) this Chapter;

(b) the Contributions and Benefits Act;

(c) the [1993 c. 49.] Pension Schemes (Northern Ireland) Act 1993;

(d) the Jobseekers Order;F15 . . .

(e) the Recovery of Benefits Order[F16 ; F17 . . . ]

[F16 (f) the State Pension Credit Act (Northern Ireland) 2002][F18 ;F19 ...

(g) Part 1 of the Welfare Reform Act (Northern Ireland) 2007.]

[F20 (h) Part 2 of the Welfare Reform (Northern Ireland) Order 2015.][F21 or

(i) Part 5 of that Order.][F22 or

(j) Part1 of the Pensions Act (Northern Ireland) 2015.]

F10 mod. by SR 1999/349, 350

F11 temp. mod. by SI 2002/2926

F12 prosp. in pt. certain functions transf. by 2002 c. 21

F13 SI 1999/671

F14 mod. by SI 2005/191

F15 2002 c. 14 (NI)

F16 2002 c. 14 (NI)

F17 Word in art. 28(3)(e) repealed (27.10.2008) by Welfare Reform Act (Northern Ireland) 2007 (c. 2), ss. 58, 60(1), Sch. 8; S.R. 2008/276, art. 2(2)(d), Sch. Pt. 2

F18 Art. 28(3)(g) and preceding word added (1.7.2008 for certain purposes, otherwise 27.7.2008) by Welfare Reform Act (Northern Ireland) 2007 (c. 2), ss. 28(1), 60(1), Sch. 3 para. 10(6); S.R. 2008/276, art. 2(2)(a)

F19 Word in art. 28(3)(f) repealed (2.5.2016 for specified purposes) by The Welfare Reform (Northern Ireland) Order 2015 (S.I. 2015/2006), art. 2(2), Sch. 2 para. 39(a); S.R. 2016/215, art. 2(2)(c)(v)(hh)

F20 Art. 28(3)(h) inserted (2.5.2016 for specified purposes) by The Welfare Reform (Northern Ireland) Order 2015 (S.I. 2015/2006), art. 2(2), Sch. 2 para. 39(b); S.R. 2016/215, art. 2(2)(c)(v)(hh)

F21 Art. 28(3)(i) and word inserted (2.5.2016) by The Welfare Reform (Northern Ireland) Order 2015 (S.I. 2015/2006), art. 2(2), Sch. 9 para. 40; S.R. 2016/215, art. 2(5)(h)(vii)

F22 Art. 28(3)(j) and word inserted (6.4.2016 unless brought into operation earlier by an order under s. 53(1) of the amending Act) by Pensions Act (Northern Ireland) 2015 (c. 5), s. 53(3), Sch. 12 para. 32