Social security fraud investigation regulations and code of practice: consultation

Section 2 - The Code of Practice for Investigations and Powers in the Investigation of Offences Regulations

How we have set out this consultation

22. As noted earlier in this document, we are consulting on both the Code of Practice and the Investigation of Offences regulations. We have set out the consultation with reference to the different sections of the Code of Practice and, where a section relates to powers in the regulations, we have set these out in a box.

23. The draft Code of Practice contains five chapters and one annex :

• Chapter 1 Powers to Investigate and Safeguards
• Chapter 2 Standards for Counter Fraud Officers
• Chapter 3 What to expect if you are being investigated
• Chapter 4 Outcome of an investigation
• Chapter 5 Complaints
• Annex of relevant legislation

24. In this chapter of the Code of Practice, we explain the offences that will be investigated, the principles and legislation that govern investigation and the range of information gathering powers that counter fraud officers of Social Security Scotland will have available to them as tools in their investigation. Some of these derive from Part 3 of the Investigation of Offences regulations, some from other legislative gateways, interdepartmental agreements or common law.

25. We also explain the rights and responsibilities of those we may ask to provide us with information under regulations 4, 5 and 6 of the Investigation of Offences regulations and about how we propose to do this. It describes the range of methods that may be used such as the gathering of documents, taking witness statements, visiting premises, surveillance and joint working with other fraud investigation bodies.

Powers for authorised persons to obtain information

26. An important element of an investigation into offences will be the need to obtain relevant information from individuals and organisations. An example might be earnings information from an organisation that employs staff, or details of funeral costs from a funeral director.

27. DWP currently have the power to do this through existing UK benefit legislation, which allows them to request information from a prescribed list of organisations, for example telecommunications companies and utilities.

28. However, we are proposing a different approach. Through the Investigation of Offences regulations, we are proposing the power to request information from any person thought to have information relevant to one or more of the matters that may be investigated (see Box 1). This may refer to both individuals and organisations and this approach follows a similar principle to that in the Revenue Scotland and Tax Powers Act 2014. This approach also recognises that the Scottish Government is engaged in a rolling programme of benefit implementation with as yet unknown benefit rules and criteria, administered by a brand new agency.

29. This will enable us to be flexible in our investigative methods without having to revisit the regulations every time a different relevant source of information becomes apparent. However, the use of this power is tighly controlled by a requirement for authorisation set out in regulation 4 of the Investigation of Offences regulations.

30. The power is strictly limited to only requesting information relating to a particular person of interest and who it is believed may have committed an offence provided for in Section 71 – 73 of the Act. An authorised officer must have cause to believe an organisation has information relevant to a social security offence and this must be evidenced. They must consider the known facts of the case and be satisfied that it is necessary and proportionate to obtain information via the statutory powers. No-one can be compelled to provide information that might incriminate them or their civil partner/spouse, or divulge legally privileged information.

Box 1. Proposed regulation 4 of the Investigations and Offences regulations

Question 1a.

Do you agree with our approach to requesting information in regulation 4 of the Investigation of Offences regulations, as shown in Box 1 and outlined in paragraphs 26 to 30?

Yes / No

Q1b. If No, please explain why.

Electronic Records

31. Through regulation 5 of the Investigation of Offences regulations we are proposing to allow authorised officers to obtain information that may be held electronically (see Box 2). This follows common modern practice, reflecting the fact that many records are now stored electronically. This power can only be used to investigate an offence under the Social Security (Scotland) Act 2018 and only authorised Social Security Scotland officers may use it. The regulation sets out the rules around how the electronic information may be handled by authorised officers, including its destruction.

Box 2. Proposed regulation 5 of the Investigation of Offences regulations

Question 2a.

Do you agree with our approach to obtaining electronic information under regulation 5 shown in Box 2 and outlined in paragraph 31?

Yes / No

Q2b. If No, please explain why.

Visiting Premises

32. There may be times when it is necessary for authorised officers to visit premises to search them, for example to carry out inquiries, obtain relevant documents or to question people they find there. Current UK legislation gives DWP the power to enter certain premises for the purposes of examination and inquiry in connection with the prevention, detection and securing evidence of social security benefit fraud. However, DWP's policy is that officers can only enter premises with consent, which is set out clearly in guidance.

33. Our proposal, through regulation 6, is to allow authorised officers to do this but subject to specified restrictions (see Box 3). Authorised officers may not enter a dwelling house (this means premises that are used solely for residential purposes, and not, for example, as a venue for working from home). The regulation also expressly states that an authorised officer can only enter premises with the permission of the owner or occupier.

34. The regulation also requires that officers must produce proof of their authorisation if required. Information obtained in this way may only be kept for as long as it is needed and, similarly to regulation 4, a person cannot be made to provide information that is self incriminating to them or their spouse/civil partner or that would be subject to legal privilege.

Box 3. Proposed regulation 6 of the Investigation of Offences regulations

Question 3a.

Do you agree with our approach to entry and search of premises for the purposes of a fraud investigation under regulation 6 , shown in Box 3 and outlined in paragraphs 32 to 34?

Yes / No

Q3b. If No, please explain why

Deliberate Obstruction or Delay of an Investigation

35. It will be important that authorised officers are able to obtain the information they require as part of a fraud investigation as quickly as possible, in order to conduct it swiftly and efficiently. We believe that is a necessary element of ensuring a person is treated fairly and with dignity and respect. If an authorised officer is deliberately hampered in their attempts to do that, and without any form of reasonable excuse, we believe there should be a penalty for failure to provide the information requested.

36. We are proposing a number of offences that may be committed in connection with impeding an investigation, set out in regulation 7 (see Box 4). The proposed offences would only be committed where for example an individual or organisation fails without justification to comply with a request, deliberately provides false information or does anything else deliberately to delay or obstruct an authorised officer in carrying out their duties under the regulations. This may incur a penalty in the form of a fine of up to £1,000.

Box 4. Proposed regulation 7 of the Investigation of Offences regulations

Question 4a.

Do you agree with our proposal for new offences relating to delay or obstruction of an investigation, as outlined in paragraphs 35 to 36 and in regulation 7 shown in Box 4?

Yes / No

Q4b. If No, please explain why.

Question 5.

Do you have any other comments about Chapter 1 of the Code of Practice for Investigations?

37. Chapter 2 of the Code of Practice is designed to provide both information and reassurance about what is our most important protection against the abuse of power – our staff. It describes the standards required of civil servants working in Social Security Scotland and their mandatory training, but also checks and balances that have been put in place to prevent misuse of investigatory powers.

38. We recognise that the powers to obtain information provided by these regulations are significant. Therefore, we think it is important that only a small number of specially-trained officers are able to use them. We are proposing a formal process for authorising and restricting the use of the powers to obtain information to those people who are required to use them (what we call 'authorised officers'). This process for authorising officers is proposed in regulation 3 of the Investigation of Offences regulations (see Box 5), with chapter 2 of the Code of Practice describing how authorised officers will be given appropriate specialist training and accreditation.

Setting the limits of the activities of an authorised person

39. It is important that the powers to be used by authorised persons can only be used in certain defined circumstances. We believe there must be clarity on what those circumstances are, so that people can be reassured that they cannot be misused.

40. We believe the circumstances when an authorised person can use information-gathering powers should be limited to:

• Securing the evidence required to prove whether social security assistance has been provided where there is reasonable suspicion that there was no enititlement or reduced entitlement.
• Investigating the circumstances of accidents, injuries, etc in relation to employment-injury assistance claims and any other claims where this is relevant.
• Investigating the possible commission of devolved social security offences.

Box 5. Proposed regulation 3 of the Investigation of Offences regulations

Question 6a.

Do you agree with our approach to authorising a person to use the information gathering powers set out in the Investigation of Offences regulations, as shown in regulation 3 in Box 5 and outlined in paragraph 38?

Yes / No

Q6b. If No, please explain why?

Question 7a.

Do you think the restrictions placed on authorised officers are correct as shown in regulation 3 in Box 5 and outlined in paragraphs 39 and 40?

Yes / No

Q7b. If No, what other restrictions do you feel are required?

Question 8.

Do you have any other comments about the contents of Chapter 2 of the Code of Practice for Investigations?

41. Chapter 3 of the Code of Practice is perhaps most important to individuals under investigation. It describes our expectations of what will happen when an investigation reaches the stage that evidence has been gathered, and the counter fraud officer needs to hear directly from the person being investigated in the form of a voluntary interview. This will often be the first time someone will become aware of the investigation and the only time there is direct interaction between the counter fraud investigators and the person they have been investigating.

42. This chapter explains that the purpose of an interview is to allow the person being investigated the chance to put their side of the story and offer a reasonable explanation for the circumstances that have arisen or to provide any documentary evidence they think may clarify matters. In line with the Scottish Government's commitment to a rights based approach, it stresses that the counter fraud officer carrying out the interview will always approach this with an open mind and ensure the person is treated with dignity and respect.

43. This section draws on best practice and codes of practice from the criminal justice system and covers the purpose of an interview, what the person can expect, in terms of setting up an interview under caution, and their rights. We are keen to ensure that this chapter reflects how the legislative principles of fairness, dignity and respect will be applied during a fraud investigation.

Question 9a.

Does Chapter 3 of the Code of Practice provide sufficient detail to explain how a person will be treated with fairness, dignity and respect during a fraud investigation?

Yes / No

Q9b. If No, please explain what else you think could be added to ensure this

Question 10.

Do you have any other comments about the contents of Chapter 3 of the Code of Practice for Investigations ?

44. Social Security Scotland staff will have to be clear with people regarding the outcome of an investigation. If it becomes evident to a person they have been the subject of a fraud investigation, it is important, in terms of a rights based approach, dignity and respect that they are clearly told the outcome and next steps. How we will go about this is set out in Chapter 4 of the Code of Practice. It explains what will happen when enough information has been gathered to draw the investigation to a conclusion. It sets out the range of options available to Social Security Scotland depending on the facts of the case.

45. These will be:

• Do nothing
• Correct the determination of entitlement to assistance and ask for any overpaid assistance to be repaid
• Send a report to the COPFS if we believe an offence may have been committed, allowing that body to consider prosecution

Chapter 4 also refers to what will happen to the information that has been gathered and the relevant law that applies.

Question 11a.

Does Chapter 4 of the Code of Practice clearly set out how the potential outcome of an investigation will be explained to an individual?

Yes / No

Q11b. If No, what else should this chapter explain?

Question 12a.

Do you believe that our approach set out in Chapter 4 of the Code of Practice will help to ensure a person is treated fairly, with dignity and respect?

Yes / No

Q12b. If No, please indicate what else you think we might do to ensure this.

46. It is important that both individuals and organisations who have come into contact with a fraud investigation have a way to express dissatisfaction about Social Security Scotland's action or lack of action, or about the standard of service provided by it.

47. This process must be clear, simple and provide confidence that a complaint will be heard fairly. We have set out, in Chapter 5 of the Code of Practice, the complaints procedures that will be available in relation to the different aspects of a fraud investigation - direct interaction with Social Security Scotland and authorised surveillance. However, some of the procedures in relation to the Agency's complaint process are not yet finalised and will be available for the final published version of the Code.

Question 13a.

Do you agree with our approach to complaints in Chapter 5 of the Code of Practice for Investigations?

Yes / No

Q13b. If No, please tell us what else you would like to see included.

48. Fraud investigation is a law enforcement activity, and we will therefore follow a number of protocols and procedural codes normally associated with criminal investigations carried out by the Police e.g. the Criminal Justice and Licensing (Scotland) Act 2010 Code of Practice - Disclosure Of Evidence In Criminal Proceedings. This is similar to agencies such as Local Authorities and DWP.

49. In an annex to the Code of Practice we have set out a list of the relevant legislation and, where appropriate, other Codes of Practice that we believe the agency will need to be guided by in terms of how we conduct our investigations.

Question 14a.

Do you believe we have identified the correct legislation and Codes of Practice that will be relevant to fraud investigations for devolved benefits?

Yes / No

Q14b. If No, what else do you think should have been included?

Question 15a.

Is the content of the Codes of Practice for Investigations right?

Yes / No

Q15b. If No, what else do you think should have been included?

General Questions

Question 16.

Is there anything else you would like to tell us about the Code of Practice for Investigations?

Question 17.

Is there anything else you would like to tell us about the Investigation of Offences regulations?