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

Chapter 4 – Outcome of an Investigation

67. Chapter 4 of the draft Code of Practice set out the possible outcomes of an investigation and how these will be communicated to an individual, in line with the underlying principles of dignity, fairness and respect.

68. A majority of respondents were content that the potential outcomes of an investigation would be communicated appropriately and they noted no significant concerns beyond a number of practical matters relating to the provision of information in a range of accessible formats.

69. The Scottish Government is committed to providing information in a range of accessible formats through the Act. Our Charter commits us to ensuring that any communications are as simple and clear as possible and adapting any communications as far as reasonably possible to meet individual's needs and preferences.

70. To ensure this is the case in practice, communications, processes and systems remain as simple and clear as possible and these will be tested with the people who will use them.

71. The need to ensure that those who have made a genuine error are not treated in the same way as those individuals who have committed fraud was raised in relation to Chapter 4 of the draft Code of Practice.

72. The purpose of any investigation is to establish the facts that will allow a decision to be made whether unintentional error, deliberate fraud or neither has occurred. The draft Code is clear that investigations will always be carried out under a presumption of innocence and each case will be approached with an open mind. The Scottish Government has also set out separate Fraud^[3] and Error^[4] Strategies which make the clear distinction between them.

73. For a number of reasons e.g. the rights of the individual, the fact that it may remain on their record and the impact on an individuals' right to complain, it was suggested that individuals who had been investigated but no evidence of fraud had been found should be notified. Some respondents also highlighted the emotional impact of investigations both during and after, even where it was only suspected by an individual that an investigation may be taking place.

74. While the Scottish Government understands the reasoning behind these points, the draft Code of Practice notes that investigations are, by their nature, carried out discreetly. An individual will not normally be told that they are under investigation while the facts are still being established, this is to avoid prejudicing the detection, investigation or prosecution of criminal offences. This is consistent with section 44(4)(b) of the DPA.

75. This will also prevent unnecessary worry and distress to those who are found to have no case to answer. Where an individual exercises their right under section 45 of the DPA, this information will be provided in so far as this is thought compatible with the purpose of the processing.

76. There is a balance to be struck between an individual's right to information and the activity associated with the investigation of offences. It is not yet known how many allegations of fraudulent activity might be received, but given that it has been reported^[5] that in excess of 80% of allegations of fraud in the reserved benefits system result in no action, the Scottish Government believe the benefits of notifying the subjects of an allegation in all cases would be outweighed by the potential detriment.

77. Notifying individuals where no action has been taken could also potentially have unintended consequences, such as exposing victims of domestic abuse to repeated vexatious accusations of fraud that negatively impact upon their wellbeing or potential worries about surveillance or the source of allegations. As some respondents highlighted individuals with a disability may also feel restricted in living their lives to the full.

78. While operational processes are still under development, the Scottish Government is clear that where a person has been investigated with no case to answer there will be no adverse impact on any future benefit claims or interactions with Social Security Scotland.