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

Annex of Relevant Legislation

In the annex to the Code of Practice, a list of relevant legislation was set out which, alongside the Code itself, would guide the agency in implementing and carrying out investigations. This included various criminal justice, data protection and human rights legislation links. Comments were sought on whether there was any other relevant legislation which should be applied in guiding the investigation of fraud offences which had been overlooked in the draft Code.

Additional Legislation to be Included

Q14. Do you believe we have identified the correct legislation and Codes of Practice that will be relevant to fraud investigations for devolved benefits? If not, what else do you think should have been included?

	Number of Respondents	% of Respondents
Yes	6	33%
No	3	17%
No response	9	50%
Total	18	100%

Three respondents provided details of additional legislation which they felt should have been included.

One organisation commented that reference should be made to both the Proceeds of Crime Act 2001 and the Investigatory Powers Act 2016 (but did not say why).

Another organisation commented that reference should also be made to the statutory data sharing Code of Practice produced by the Information Commissioner's Office under section 121 of the DPA. It was suggested that this would help to inform Social Security Scotland's approach to obtaining evidence and making arrangements for access to electronic records.

One other organisation used this question to comment more broadly on what they perceived to be the inappropriate granting of RIPA powers to the Social Security Scotland Agency, although this response was based on a misunderstanding of what was being proposed.

Content of the Code

A more general question was also asked around whether the content of the draft Code of Conduct for Investigations was right or, again, if anything had been overlooked.

Q15. Is the content of the Code of Practice for Investigations right? If not, what else do you think should have been included?

	Number of Respondents	% of Respondents
Yes	6	33%
No	5	28%
No response	7	39%
Total	18	100%

Some respondents simply cross-referenced their substantive comments in relation to the earlier consultation questions, suggesting that any perceived gaps or limitations with the Code had been highlighted in their earlier responses. Five respondents provided specific suggestions for additional material that could have been included (with some suggesting more than one addition).

Two organisations suggested that clearer differentiation should be made in the Code between instances of genuine fraud and incorrect benefit claims that had occurred by error since both may require a different investigative approach. This echoed earlier comments about unintentional versus wilful fraud cases:

"There is an opportunity to uncouple the link that is mistakenly made between error and fraud. Social Security Scotland can play a role in tackling the incorrect public perceptions of fraud levels for disability benefits…Strategies for dealing with both fraud and error are concerned with protecting public money, but causes of error are not the same as causes of fraud and one strategy does not fit both fraud and error."

One of these organisations also highlighted that the Code of Practice does not make clear what would trigger the start of an investigation, beyond a situation "where a suspicion has arisen". Addressing this perceived gap in the Code, may also help to more clearly differentiate between intentional fraud and error, it was suggested:

"Due to the wide scope of the new offences, the Code of Practice should be strengthened to provide clear guidance as to when an investigation should be opened. Doing this could make clearer the distinction between possible fraud and innocent error."

One individual commented that it would be helpful if the Code made reference to obtaining warrants to search premises in cases where it was deemed proportionate and necessary.

One organisation suggested that there may be some disconnect between the two documents being consulted upon, i.e. the draft regulations and the Code, and suggested that this needed to be addressed before either were finalised:

"There is at times a gulf between the policy intent outlined in the Code of Practice and the content of the draft regulations. We think that this needs to be addressed before the final version of the Code and regulations are sent for Parliamentary approval."

A different organisation supported this view and suggested that the Code may be "unnecessarily bulky" and "open to criticisms caused by different interpretations" when put into practice:

"…the language in which the document is written moves uncomfortably between the formality of a CoP and informality of an information leaflet. A separate document, designed for the public to consume, could better convey the principles and values that the SSSA intends [to] uphold in its operational approach."

Code of Practice for Investigations

To provide respondents with an opportunity to comment on the Code of Practice for Investigations as a whole, or to identify any issues which were not covered by specific consultation questions, a single open-ended question was included towards the end of the consultation.

Q16. Is there anything else you would like to tell us about the Code of Practice for Investigations?

Three additional comments were provided in relation to the Code of Practice for Investigations - all provided by organisations.

One organisation noted that the duty placed on Ministers in the Code to "establish effective whistle-blowing procedures" was also a requirement of section 81 of the DPA. Cross-referencing of the legislation may be appropriate.

Two other organisations commented that there should be some clearly communicated strategy for reviewing the Code of Practice (perhaps on an annual basis) to ensure that it remained fit for purpose:

"…we would encourage the Scottish Government to provide further details on the process for reviewing the Code of Practice and assessing its impact, and in particular its value in realising the principles of dignity, fairness and respect."

One of these organisations commented that, this aside, the Code of Practice was "informative and well thought out."

Investigation of Offences Regulations

A similar open-ended question was included to capture wider feedback on the Investigation of Offences regulations.

Q17. Is there anything else you would like to tell us about the Investigation of Offences regulations?

Four additional comments were provided - two from individuals and two from organisations.

One individual commented that affording people the right to legal advice during investigations (the same as DWP investigations) would have an impact on solicitor input/legal aid budgets and this may need further consideration.

One local authority also commented that further consideration should be given to the additional administrative burdens which may be placed on other public bodies once the agency was up and running, especially in the context of information gathering/sharing. This should be monitored over time to ensure that sufficient funding is allocated to public bodies to help them resource any additional requirements placed upon them.

One organisation stressed that they viewed the proposals for detecting cases of fraud related to social security assistance as being 'reactive' and not seeking to diminish fraud. An audit of the patterns of fraud and more engagement with benefit claimants and support organisations to learn about professional and lived experience may give a better insight into what needs to be changed to tighten up what they perceived to be a "frail system."

Finally, one organisation highlighted that there appeared to be no powers to suspend payment of benefit during an investigation. This may be detrimental, it was suggested, as it may result in increased overpayment while investigations are being carried out and result in a greater burden of debt for the recipient if found guilty. To minimise any risks in this regard, a commitment to conclude investigations as soon as possible should be made, as well as any re-determination of entitlement taking place "as sufficient evidence is available, even if an investigation of possible fraud is still underway." It was suggested that any consequences of the lack of a power to suspend payments should be monitored with a view to considering whether legislative changes are needed^[10].

Overarching Comments

Other more general comments that were received in relation to the consultation as a whole included a view that there was an opportunity for organisational learning by publishing statistics on the number of investigations that are undertaken, the number of investigations that result in no case to answer and the number that result in prosecution:

"Measures of success of this policy must include how well it is aligned with principles of dignity and respect and a rights-based approach."

Some respondents pointed out that overall levels of benefit fraud were quite low and that any proposals for investigating fraud should be proportionate rather than too heavy handed (as well as being mindful of the difference between intentional fraud and unintentional error).

One organisation urged the Scottish Government to continue to engage with relevant stakeholders in finalising the draft documents, adopting the same co-production principles that had been evidenced with other areas of development and planning for the new Social Security Scotland agency.

One organisation highlighted that where a 'competent authority' is processing personal data for the purpose of preventing, investigating, detecting or prosecuting criminal offences, they must comply with the law enforcement provisions in Part 3 of the Data Protection Act 2018 (the DPA). Scottish Ministers are listed as a competent authority in schedule 7 of the DPA and, as an executive agency of the Scottish Ministers, Social Security Scotland will be subject to the law enforcement provisions (rather than the GDPR) when processing personal data as part of investigating an offence related to devolved social security matters. This could, perhaps, have been made clearer in the draft regulations and Code of Practice.

Finally, one individual expressed a view that the consultation itself asked the same questions, in different ways. This same individual commented that they viewed the proposals as "illegal and an abuse of various acts including the Human Rights Act." Again, however, this was a lone view and no other negative comments were made about the nature of the consultation per se or the way in which questions had been asked.