Social security: response to consultation on draft investigation of offences regulations

Introduction

1. The Scottish Government consulted on the content of the draft Code of Practice for Investigations and the information gathering powers contained within the proposed Investigation of Offences Regulations between 6 August and 29 October 2018.

2. A total of 18 consultation responses were received. Of the responses, 12 came from organisations (including local authorities, NHS and third sector support organisations) and the remaining 6 were submitted by individuals.

3. The Scottish Government engaged KSO Research Ltd to undertake an independent analysis of the consultation responses and produce a final report. This report can be accessed here.

4. The consultation responses indicated no overwhelming consensus either for or against any of the proposals contained within the draft Code of Practice for Investigations or the information gathering powers contained within the proposed Investigation of Offences Regulations (2018).

5. The analytical report does clearly state that 'the fact that most questions attracted, on average, more supportive responses than non-supportive responses should not, however, be overlooked. Indeed, the only three areas where sentiments were clearly balanced against the proposals were around requests for information, information gathering practices and the proposed rules for entering and searching premises'.

6. This response from the Scottish Government relates to the main views expressed during the consultation process and sets out where the draft Code of Practice will be amended as a result of the feedback received. It also highlights areas within the draft Investigation of Offences Regulations that are being reviewed as a result of the consultation exercise.

About the Consultation Process

7. The initial consultation process on the approach to fraud was carried out as part of a wide ranging consultation on the content of Scottish Social Security Bill between 29 July and 30 October 2016. Respondents to that consultation were invited to express their views on the general principles and approach to fraud and a full written response can be found here.

8. Generally, most respondents to that consultation were content with the proposed approach and supported the distinction that was drawn between error and fraud. Respondents were split upon whether the existing Department for Work and Pensions (DWP) Code of Practice for investigations should be adopted or whether a bespoke Scottish system should be implemented.

9. The Social Security Bill was introduced to the Scottish Parliament in June 2017 and during its passage through Parliament, there was consensus among stakeholders and parliamentarians that there should be a clear distinction between intentional fraud and cases where a genuine error may have led to an overpayment. In response to these concerns, Section 40 (now section 72 of the Social Security [Scotland] Act 2018) was amended to ensure that an individual would not have committed an offence where they had a 'reasonable excuse' for failing to report a relevant change of circumstances that may impact on their eligibility for social security assistance.

10. Section 75 of the Social Security (Scotland) Act 2018 (the Act) enables the Scottish Ministers to make regulations dealing with the investigation of the offences which the Act creates. It provides that the regulations might include, in particular, powers of search and seizure of relevant items, as well as creating offences in relation to a failure to cooperate with an investigation.

11. Section 76 of the Act places a duty on Scottish Ministers to lay a Code of Practice before the Scottish Parliament setting out how investigations carried out relying on powers in regulations made under section 75 are to be undertaken. It should be noted that Section 76 does not specify the content of that Code of Practice. Neither of these sections of the Act were subject to amendment during the Bill's passage.

12. A stakeholder workshop took place on 26 March 2018 to obtain views on what should be contained within the Code of Practice and the Investigation of Offences Regulations. The Scottish Government also consulted with a number of other public bodies with similar investigatory functions such as the Northern Ireland Department for Communities, NHS Scotland, the Student Awards Agency for Scotland and DWP, as well as the Police and Crown Office and Procurator Fiscal Service.

13. As a result, a draft Code of Practice and draft Investigation of Offences Regulations were developed and a public consultation ran for 12 weeks between 6 August and 29 October 2018. Over 200 individuals and relevant organisations were contacted directly to invite views. A further stakeholder workshop to gain feedback on the draft Investigation of Offences Regulations and the draft Code of Practice was held on 2 October 2018 in Glasgow, attended by representatives of five organisations.

14. The consultation contained a total of 19 questions specifically structured to seek respondent's views on the draft Investigation of Offences Regulations and each specific chapter of the draft Code of Practice for Investigations.

15. A total of 18 responses were received, 10 via the Scottish Government's Citizen Space online portal and eight sent directly to the Scottish Government. Of the responses received, 12 were from organisations (including local authorities, NHS and Third Sector Support organisations). The remaining six consultation responses were received from individuals.

16. Permission was sought from each respondent to publish their response and these can be accessed at: https://consult.gov.scot/social-security/fraud-investigations/consultation/published_select_respondent