Social security: independent analyst's report on consultation on the investigation of offences regulations

Introduction

Background

The Social Security (Scotland) Act 2018 created new social security powers for Scotland including responsibility for the investigation of fraud in relation to the benefits being delivered under the Scottish social security system. This includes investigation of the offences set out in sections 71-74 of the Act that may be committed by individuals and organisations, including obtaining social security assistance by deceit, failing (or causing another person to fail) to notify a change of circumstances, and individual culpability for corporate offending.

Social Security Scotland will be a Specialist Reporting Agency (i.e. an agency able to report cases to the Procurator Fiscal) and will be responsible for investigating and gathering evidence in relation to allegations or suspicions of fraud. To guide the operation of this new organisation, section 75 of the Act sets out a power for Scottish Ministers to make regulations for the investigation of fraud offences as well as placing a duty on Ministers to produce a Code of Practice for Investigations.

In developing initial proposals for how suspicions of fraud will be investigated, the Scottish Government sought views as part of a wider Consultation on Social Security in Scotland^[1] during 2016. It also worked directly with a range of stakeholders and public sector organisations to understand the types of fraud that might face Social Security Scotland in relation to devolved benefits. This included the Department for Work and Pensions (DWP) which currently undertakes investigations of benefit fraud in Scotland.

The draft Investigation of Offences regulations specifically sets out the information gathering powers that allow authorised officers to compel people and organisations to provide information, shifting the onus of accountability onto Social Security Scotland. The draft regulations also set out the consequences for non-compliance with a request for information.

The draft Code of Practice sets out how the agency will use the powers in the Investigation of Offences regulations, as well as detailing the standards of conduct to be employed during investigations more generally, to ensure that the overarching principles that people are treated with dignity, fairness and respect are met by Social Security Scotland.

Given their integrated nature, a consultation was launched in August 2018 to gather feedback on both the draft Investigation of Offences regulations and the Code of Practice for Investigations. This report presents the findings from that consultation.

Respondent Profiles

The consultation opened on 6 August 2018 and ran for 12 weeks, closing on 29 October 2018.

A total of 18 responses were received - ten via the Scottish Government's online portal Citizen Space, and eight by email directly to the Scottish Government. A total of 12 responses came from organisations (including local authorities, NHS and third sector support organisations) and the remaining six came from individuals.

All respondents who contributed written responses were asked to submit a Respondent Information Form (RIF) alongside their consultation response, indicating if they were willing for their response to be published (or not), either with or without their name. All agreed to their responses being published, with 10 requesting to remain anonymous and eight indicating that they were happy for their identity to be disclosed. The full published responses can be found here.

Analysis and Reporting

The Scottish Government appointed an independent research company to undertake analysis of the consultation responses and provide a report.

The consultation contained a total of 19 questions and was structured to seek views on each of the five separate chapters contained within the Code of Practice, these being:

• Powers to Investigate and Safeguards;
• Standards for Counter Fraud Officers;
• What to expect if you are being investigated;
• Outcome of an investigation; and
• Complaints.

The consultation made reference, where appropriate, to the corresponding powers as set out in the draft regulations and also asked for views in relation to other relevant legislation. It also contained dedicated questions to explore impacts of the proposals, both business related impacts and equalities impacts.

All but two questions had both a closed 'tick box' component, (asking participants if they agreed/disagreed with the proposals) and an open 'text box', which gave participants a chance to express their views in more detail.

All responses were read and logged into a database and all were screened to ensure that they were appropriate/valid. Only one response was removed for analysis purposes, because one individual submitted a response via both Citizen Space and directly to the Scottish Government and the substantive content was the same.

Closed question responses were quantified and the number of respondents who agreed/disagreed with each proposal is reported below. Comments given at each open question were examined and, where questions elicited a positive or negative response, they were categorised as such. For most of the questions, respondents were also asked to state the reasons for their views, or to explain their answers. The main reasons presented by respondents both for and against the various specific proposals were reviewed, alongside specific examples or explanations, alternative suggestions, caveats to support and other related comments. Verbatim quotes were extracted in some cases to highlight the main themes that emerged.

Narrative feedback from respondents is presented alongside a summary of the number of respondents who agreed or disagreed with each of the questions, or who provided substantive responses to the more general questions. Raw numbers are presented alongside percentages, for ease of interpretation although these percentages should always be interpreted with caution, since they relate to small actual numbers of responses. Due to the small number of responses received overall, it was also not appropriate to provide disaggregated analysis by respondent 'type' e.g. individual, support organisation, local authority, etc., however, where a view was expressed by only one 'type' of respondent group, this is indicated in the text.

As a guide, where reference is made in the report to 'few' respondents, this relates to three or less respondents. The term 'several' refers to more than three, but typically less than ten.

Despite most respondents being willing for their names to be published alongside their response, a decision was made to anonymise all responses in the final report. Similarly, where verbatim extracts have been included in the report, these have also been anonymised.

Responses to each of the questions are summarised below, in the order that they appeared in the consultation document.

Research Caveats

While the number of responses to the consultation was encouraging, it is important to remember that this report presents only the views of those who contributed. It should not be considered as representative of the wider stakeholder population, nor should the findings be generalised too broadly.

Importantly, the Scottish Government welcomed the views of people who may have had experience of a benefit fraud investigation and, recognising the potential sensitivity around sharing experiences of this nature, anonymity was offered. Despite this, the number of individuals who responded was small and there was also no clear evidence in the responses received from those individuals to indicate that they had personal experience of fraud investigations. Indeed, most feedback regarding individuals who had been subject to an investigation was received via support organisations who responded on their behalf. There will, inevitably, be a wide range of responses to the proposals set out which may never be captured by a consultation exercise of this kind, as some people choose not to engage.

Finally, it is important to note there may be some inherent bias into the findings presented here. While supportive comments in relation to the regulations were welcomed, the main purpose of the consultation was to identify any potential issues with the draft documents so Scottish Ministers could consider if they could be improved. This means that most of the feedback included offered negative sentiments or views against the proposals. While the findings presented below may, therefore, highlight mostly the perceived gaps or weaknesses of the draft regulations or the Code of Practice, it is important to remember the numbers of people who supported the proposals too (and this can be seen in the response summary tables presented throughout).