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

Chapter 4 - Outcome of an Investigation

Chapter 4 of the draft Code of Practice for Investigations sets out the responsibilities of Social Security Scotland staff to clearly communicate the outcome of investigations to individuals concerned, including 'next steps' with regards to their benefit payments. It also sets out the range of options available to Social Security Scotland depending on the facts of the case, these being:

• If benefit was paid correctly or there is no case to answer, no further action will be taken;
• If evidence suggests a determination of entitlement is wrong, Social Security Scotland will correct the determination of entitlement to assistance and ask for any overpaid assistance to be repaid; and
• If the benefit was paid incorrectly and the facts of the case and evidence suggest an offence has been committed, Social Security Scotland may send a report to the COPFS, allowing that body to consider prosecution.

The Code also sets out clearly how data that have been gathered during investigations will be handled, including what, if any, data will be retained or destroyed in line with Social Security Scotland data retention policy (a link to which was provided in the Code).

Communicating Outcomes

Views were sought on the specific procedures outlined for communicating outcomes.

Q11. Does Chapter 4 of the Code of Practice clearly set out how the potential outcome of an investigation will be explained to an individual? If not, what else should this chapter explain?

This section of the consultation received the least feedback overall. Almost all who provided a response to this question agreed that the Code of Practice was clear in relation to how the potential outcome of an investigation would be explained to an individual. Only three people said that it was not clear, and one agreed only in part.

The main thing that should be added to the Code, which was mentioned by one individual and two organisations, was that information on decisions would be provided in a range of accessible formats, as preferred by the individual under investigation (e.g. in writing, electronically, by audio file, etc.):

"…in keeping with the recognition of inclusive communication and accessible information set out in sections 4 and 5 of the Social Security (Scotland) Act, the information should be given to the individual in a format that is accessible to them."

One local authority also suggested that consideration should be given to including an explanation of what would happen in the case of joint investigations, for example, those run between the Social Security Agency and a local authority. For example, would both parties be responsible for notifying the individual of the outcome of the investigation.

The only other comment received, from an individual, put forward a view that cases where fraud is suspected after the investigation should be referred to the criminal courts for determination, unless there was good reason not to do so (thus supporting the third outcome option set out in the Code).

Other Comments

More general views were also sought on whether the procedures set out would help to ensure that individuals were treated with fairness, dignity and respect.

Q12. 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? If not, please indicate what else you think we might do to ensure this.

Again, this question attracted very few responses with most either agreeing with the Code, as written, or offering no response.

Of the five who did not agree with the approach, one organisation provided a view that the Code of Practice needed to be clearer in setting out that referral to COPFS would not occur in cases where it was decided that overpayment did not require to be paid back. The same organisation also expressed that a rights-based approach would entail giving individuals the opportunity to challenge decisions made by the agency regarding repayment before the case is referred to COPFS.

The same organisation also highlighted that there was ambiguity in the regulations and Code of Practice around changes made to an individual's entitlement due to a change in circumstances and the point at which this may become a fraud investigation:

"Concern was raised during the Stage 2 debate that the legislation was drafted in such a way that those who made a genuine error could be caught by the definition of fraud. Reassurance was given that the Code of conduct, and additional guidance, would ensure this is not the case…In line with the Minister's assurances the Code of Practice should be strengthened to provide clear guidance as to when cases should be referred, including detailed guidance to ensure cases of genuine error are not referred for prosecution (although in these cases it may be that any overpayment can be recovered)."

Several organisations noted that, where there was no case to answer, it was important that the individual be made aware of the investigation which had been carried out into their case (and the fact that the investigation would be on their record), but that this be done in a way that does not cause distress or alarm. Indeed, another organisation pointed out the Scottish Government (and Social Security Scotland as an executive agency) has a duty to provide individuals with any information that they hold about them (if requested) and this would include individuals being told that an investigation had been/was being conducted. Trust and respect need to be upheld in such cases and the Code could be clearer in detailing or stipulating this duty.

Four (including the one that agreed 'in part') commented that their support was contingent on individuals also being referred to independent advocacy, advice or other forms of support, as required, to help them in understanding and managing the outcome of investigations (including access to legal advice or specialist domestic abuse support, where appropriate).

Finally, one organisation commented that, while they agreed with Chapter 4 on the whole, they felt that cases where the individual was evidenced to have done no wrong (including cases where they may have been overpaid due to an administrative error), a written apology should be issued by Social Security Scotland. This was in keeping with the Social Security principles, it was felt.

Overall, Chapter 4 of the Code of Practice received little feedback and most comments related to strengthening the proposals by ensuring that individuals were supported with clear communication and advice both before, during and after investigations were carried out.