Social security fraud investigation regulations and code of practice: consultation

Section 1 - About the Consultation

What are we consulting about?

10. We are consulting on our proposals for Investigation of Offences regulations and a Code of Practice for Investigations under Sections 75 and 76 of the Social Security (Scotland) Act. The full text of the draft Code of Practice and the Investigation of Offences regulations are set out at Annex A and Annex B respectively.

11. The main purpose of the Code of Practice is to set out how we will use the regulatory powers in the Investigation of Offences regulations. However, we feel it is appropriate to extend its scope further, setting out the standards of conduct to be employed during investigations, and how people will be treated with dignity and respect. The Investigation of Offences regulations will set out information-gathering powers that allow authorised officers to compel people and organisations to provide information, shifting the onus of accountability onto Social Security Scotland. They also set out the consequences for non-compliance with a request for information.

12. Given the integrated nature of the Code of Practice and the Investigation of Offences regulations, we think it is appropriate to consult on both at the same time.

13. The Scottish Government ran an overarching Consultation on Social Security in Scotland ^[1] from July to October 2016. The section on fraud asked a number of questions about the Department for Work and Pensions ( DWP) existing Fraud Investigation Service , its investigatory powers under the Social Security Administration Act 1992 and Code of Practice for Obtaining Information.

14. Over 100 responses from both organisations (including the public sector) and individuals were received. While views were mixed, it was clear that in addition to technical information about how the statutory powers of investigation would be used, respondents felt that there should be more information about how people would be treated during an investigation. For example, many respondents felt there should be a stronger emphasis on safeguards against misuse of powers, and reassurance about how those being investigated will be treated when they come into direct contact with an investigation, such as when they are being interviewed.

15. This has helped to inform our approach to our own Code of Practice for Investigations, which goes further than simply describing how the agency will use the statutory powers through the Investigation of Offences regulations. The Code also sets out the broader expectation for the process including interview under caution, and in particular aspects which have potential to impact on dignity, respect and fairness.

How has the Scottish Government developed the Investigation of Offences regulations and the Code of Practice for Investigations

16. In developing the regulations and the Code of Practice, Scottish Government has worked with a range of other public sector organisations to understand the existing types of fraud that might face Social Security Scotland in relation to devolved benefits. A key stakeholder in this is DWP which currently undertakes investigations of benefit fraud in Scotland alongside Local Authorities. We have also worked with NHS Scotland, The Student Awards Agency for Scotland and the Northern Ireland Social Security Agency among others. We have taken into account responses to the 2016 Consultation on Social Security in Scotland in relation to existing powers used for the fraud investigation and the existing Code of Practice, and have sought views from stakeholder reference groups.

Who do we want to hear from?

17. We are keen to gather the views of people with a working knowledge of social security and experience of working with fraud in the social security system, for example solicitors, welfare rights officers, Local Authorities, tribunals and the counter-fraud community.

18. In addition we are keen to hear from individuals, organisations and groups with an interest or experience in this particular area including, for example organisations who are already asked routinely to provide information to DWP or Local Authorities in relation to fraud investigations.

19. We would welcome the views of people who may have experience of a benefits related fraud investigation. We recognise the potential sensitivity around sharing experiences of this nature and will treat any such information carefully. Respondents do not need to provide their name unless they want to and may request that their response is not published.

How will the regulations be taken forward?

20. The responses to the consultation will be analysed and fully considered, informing decisions on our final policy position. The regulations and Code will then be revised as needed and both will then be laid in Parliament. As set out in the Social Security (Scotland) Act, the fraud investigation regulations will be subject to affirmative procedure in the Scottish Parliament. Post-consultation, the Code of Practice requires to be published and a copy laid in the Scottish Parliament. This will take place before any investigations are undertaken by the agency.

What comments are requested and by when?

21. All responses should be submitted to us by Monday 29 October 2018.

More information, including how to respond, can be found at Annex C and D.