Annex B: Extracts from published DSS scheme of financial redress for maladministration (as revised September 1998)
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Parliamentary Commissioner for Administration
State earnings-related pension scheme (SERPS) inheritance provisions: redress for maladministration
Annex B - Extracts from published DSS scheme of financial redress for maladministration (as revised September 1998)
On misdirection:
"Documentary or incontrovertible proof of misdirection is not an essential requirement for the authorisation of a payment: the fact that documents may have been destroyed in the normal course of events, or that an officer cannot remember the case, would not in itself justify a refusal to make a special payment.
Each case must be decided on its own merits. When there is no, or little, clear and confirmed evidence of official misdirection/error a judgement must be made on the plausibility of the allegation. In making such a judgement the following points should be considered:
- the likelihood that wrong advice could have been given in the particular situation—taking into account the experience of the staff involved and whether the particular statutory provisions/procedures were well known or new;
- whether the customer's account of events seems reasonable;
- the consistency of the allegations made;
- whether the passage of time could have distorted the customer's recollection of events;
- the level of knowledge the customer could reasonably be expected to have from their past contacts with the department;
- whether there has been confusion rather than misdirection—e.g. where a customer has been claiming more than one benefit and misinterpreted advice;
- the fact that whilst an enquiry or question may be a routine transaction for the department and the agency, it could be more complicated for the customer.
A decision may ultimately depend on the balance of probabilities. It must not be arbitrary, based on bias or prejudice and must be publicly defensible."
On financial disappointment:
"Special payments are not generally made for financial disappointment. Financial disappointment may arise when a customer is advised that entitlement to benefit ... will be at a higher rate than the actual entitlement when a formal adjudication is made.
However, if a customer has relied on incorrect information to alter their circumstances to their financial detriment a special payment should be considered for the financial loss actually suffered. In such cases it will be necessary to consider whether it was, in all the circumstances, reasonable for the customer to have accepted in good faith, and to have acted upon, the incorrect information provided. Depending on the circumstances there are a number of options, including:
- to make continuing payments if, for example, the customer has taken on a regular financial commitment; or
- to make a lump-sum payment to clear any debt incurred as a result of such incorrect advice.
The circumstances of the case should be carefully examined to determine appropriate redress. For example where a customer has entered into a financial arrangement on the strength of information provided by the department ... it may be appropriate to make either a continuing special payment or a lump sum payment to clear the debt. The emphasis should be on trying to restore the customer to the position he/she would have been in had they not proceeded on the basis of wrong advice. Any special payment made must not therefore exceed the amount of ... pension ... that was expected plus compensation for sums actually spent in reliance on the wrong information."
On retirement pension forecasts:
"Care should be exercised when a claim is received in respect of an incorrect retirement pension forecast. A forecast is only a prediction and not, therefore, a guarantee of payment.
A special payment can only be considered in these cases where:
- the forecast made was clearly incorrect in view of information held (i.e. an erroneous forecast); and
- the customer suffered a financial loss by acting on the information."
