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

Chapter 2 - Standards for Counter Fraud Officers

Chapter 2 of the Code of Practice sets out the standards for counter fraud officers - i.e. the civil servants working in Social Security Scotland who will be responsible for implementing fraud investigations. The proposals specify that only a small number of specially trained and accredited officers will be able to use the powers set out in the investigation regulations (referred to as 'authorised officers') and that a formal process would be in place to authorise and restrict the use of powers by these individuals.

Limiting Activities of an Authorised Person

Under the proposals, prescribed limits to the circumstances under which an authorised person can use their information gathering powers are limited to:

• securing the evidence required to prove whether social security assistance has been provided where there is reasonable suspicion that there was no entitlement 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; and
• investigating the possible commission of devolved social security offences.

Views were sought on the appropriateness of this approach.

Q6. Do you agree with our approach to authorising a person to use the information gathering powers set out in the Investigation of Offences regulations? If not, please explain why.

	Number of Respondents	% of Respondents
Yes	5	28%
No	9	50%
No response	4	22%
Total	18	100%

Half of respondents said that they did not agree with the approach to authorising a person to use the information gathering powers as set out in the regulations.

While respondents generally welcomed the overall approach and the inclusion within the Code that authorised officers must demonstrate integrity, honesty, objectivity and impartiality, most felt that they did not go far enough in specifying what would be required and, specifically, that the training specified would be insufficient for people in this role. Four organisations expressed concern that there was a lack of clarity in the regulations about the training that would be provided and/or indicated that the training described in Chapter 2 of the Code was inadequate:

"Whilst the chapter notes that 'all counter fraud officers will be specially trained members of staff', no further detail of this special training is given, aside from the mandatory data protection, equality and diversity training which is given to all Social Security Scotland staff."

Several organisations suggested that a more rigorous and bespoke training programme for counter fraud officers should be provided. As well as covering mandatory data protection, equality and diversity training, it should also include training on investigation practices, relevant legislation, equalities, causes of fraud and rights-based approaches to communication. Other specific areas that could be covered included poverty awareness, domestic abuse training and mental health training. Enshrining mandatory data protection, equality and diversity training of staff within the regulations would safeguard against this being abandoned in the future without anyone being accountable for its abandonment, it was suggested. One organisation pointed out that advice on the specialist training required could/should be sought from academic experts^[7].

While the consultation noted that only a small number of specially trained officers would be able to use the powers to obtain information set out in the regulations, comments were made about the unspecified number of officers who would actually be authorised to use the powers, as set out:

"Unfortunately, the draft regulations do not specify in any way whatsoever that the number of authorised officers will be small nor how their numbers will be limited now or in the future. As the draft regulations stand any, or all, individuals who are employees of a public body within the meaning of section 12(2) of the act could be authorised to have investigatory powers. That in turn means that a future Minister could give a blanket authorisation for many or all Agency staff to be granted investigatory powers… we would suggest that Scottish Government clarifies how authorisations will be limited to a small number of specially trained officers - e.g. they could specify that Ministers can only authorise the granting of investigatory powers to those who have undergone lengthy, specialist training."

One individual also noted that they felt that all counter fraud officers should be authorised, rather than only some, indicating that the regulations could be misinterpreted (i.e. if the intention is that all officers be authorised, this could be made more explicit in the regulations). Authorising all officers may reduce bureaucracy and delays, it was suggested. Another individual also suggested that more detail was needed as to how Scottish Ministers would decide in which cases authorisation would/would not be given.

Overall, feedback concentrated on the need for limiting authorisation and training to just a small number and the need for more specialised and clearly defined training regimes:

"We feel counter fraud officers should have specially tailored training. The training as defined in the consultation document does not give enough detail of what that would involve. We believe that it should show how permissions will be restricted to specially trained officers and so the regulations should specify that only those staff who have undergone tailored, expert training would be granted investigatory powers."

Additional Restrictions on Authorised Officers

Q7. Do you think the restrictions placed on authorised officers are correct as shown in regulation 3? If not, what other restrictions do you feel are required?

	Number of Respondents	% of Respondents
Yes	9	50%
No	2	11%
Agree in part	1	6%
No response	6	33%
Total	18	100%

Half of respondents agreed that the restrictions placed on authorised officers were correct and a further third of respondents gave no response to this question.

Of the two that did not agree (one individual and one organisation), one gave no explanation why and the other indicated that they disagreed on the basis that they perceived that RIPA (Regulation of Investigatory Powers Act 2000) powers were to be made available to the new Scottish Social Security (which was an inaccurate view).

One other respondent who supported the restrictions also commented that there needed to be clarity regarding the use of powers and that they should only be used if the person being investigated had failed to provide information.

One organisation agreed in part on the basis that authorised powers should only be used as a last resort. While they agreed with the restrictions overall, they commented that alternative, less intrusive means of information gathering should be used wherever possible and that this should always include making direct contact with the person under investigation to afford them adequate opportunity to provide the information being sought:

"In order to ensure that these powers are used with the highest degree of dignity and respect… the claimant should, in the majority of cases, be notified in writing that, unless they provide the information themselves within a given timeframe, the authorised officers will seek to gather the information from third parties."

Another organisation suggested that specially trained, authorised officers should only use the powers described in extreme circumstances:

"We feel to sit with the principles of dignity, respect and a person-centred approach then information gathering should be done where possible through communication with the person under investigation."

No other suggestions were made for additional restrictions and comments mainly related to narrowing and clarifying restrictions wherever possible.

Other Comments

Q8. Do you have any other comments about the contents of Chapter 2 of the Code of Practice for Investigations?

There were very few other comments offered in relation to the Standards for Counter Fraud Officers, and most simply reiterated their comments above regarding limiting authorisation and ensuring rigorous and wide-ranging training for authorised officers.

One organisation specifically stressed that they were not reassured by the fact that counter fraud officers would be subject to the Civil Service Code since this was often not demonstrated in practice, they felt, and the same organisation also stressed that there were no safeguards around monitoring appropriate practice in the field:

"Nowhere in the regulations does it state that counter fraud officers will receive special training. Nor does it state that any training is needed before or after being granted a certificate issued in accordance with regulation (3) of the draft regulations in order to be granted, or to exercise use of, additional powers. Nor are we reassured that use of the powers will be overseen by other counter fraud officers."

More was needed to safeguard against counter fraud officers supporting one another inappropriately in cases where powers may have been abused, it was perceived.

One comment was also made that Paragraph 49 of the Code of Practice, as currently drafted, does not adequately reflect the Information Commissioner's role and should be rewritten to cover his/her tasks under article 57 of the GDPR and schedule 13 of the DPA.