Social Security Fraud: Code of Practice for Investigations

Introduction

1. Social security is an investment in the people of Scotland, and we start from the premise that everyone may be entitled to support. To ensure this public investment is maximised and spent appropriately, one of the key principles is that the Scottish social security system is efficient and delivers value for money. As part of this we need to prevent and protect against social security fraud.

2. Social Security Scotland's systems and processes are being designed to reduce the risk of fraud and error. Social Security Scotland's approach to prevention is set out clearly in its 'Counter Fraud Strategy'^[5]. However, firm action is needed where deliberate attempts to defraud the social security system are made. Social Security Scotland has a duty to identify and manage risk, make sure there are both internal whistle-blowing and external reporting procedures, and to effectively, professionally and sensitively investigate where there is a suspicion of fraud.

3. The Scottish Public Finance Manual (SPFM)^[6] also sets out principles to guide the Scottish Government and other relevant bodies on the proper handling of fraud and reporting of public funds. It sets out legal, parliamentary and administrative requirements and promotes good practice and high standards of behaviour.

4. The Social Security (Scotland) Act 2018 (the Act) provides the basis for claims and payments of devolved benefits. Sections 71-74 set out the specific social security offences that may be committed. Where there is a suspicion that an offence may have been committed, thorough investigation to establish the facts will be needed. This is a key aspect of the Scottish Government's counter fraud strategy "Protecting Public Resources in Scotland"^[7].

5. Section 75 sets out that Scottish Ministers may make regulations to confer investigatory powers upon some staff within Social Security Scotland specifically in relation to these offences. All staff who undertake tasks in relation to the investigation of fraud are considered to be Counter Fraud Officers. Those authorised to utilise the statutory powers outlined within the regulations under Section 75 of the Act will be referred to as 'Authorised Officers'.

6. Section 76 of the Act requires that Scottish Ministers publish and lay in Parliament a Code of Practice that explains how powers of investigation given by regulations made under section 75 will be used. The publication of this document fulfils that statutory obligation. However, the Scottish Government has always been clear that this Code will also set out how pre-existing powers will be used. It will also set expectations about standards that must be met in the course of any investigation.

7. Section 76 of the Act also sets out a duty to keep the Code under review. As recognised by respondents to the consultation, this is particularly important in relation to the first version of the Code to be published. As Social Security Scotland matures, it will seek to continuously improve and update the Code at appropriate times when there is feedback and experience from a period of operations to inform changes.

8. The powers within the Social Security Assistance (Investigation of Offences) (Scotland) Regulations 2020 only apply to benefits paid under the Act. However, the Code of Practice describes how investigations will be undertaken using both powers created under the Act and existing statutory powers (for example the information-sharing provisions in section 34 of the Scotland Act 2016).

9. Fraud investigations relating to benefits that the Department for Work and Pensions (DWP) will continue to deliver in Scotland are not covered by this Code. Further information can be found online at www.gov.uk/benefit-fraud.

10. Fraud investigators, social security tribunals and civil and criminal courts should take this code into account when deciding questions to which it is relevant. However, a failure to comply with it does not of itself give grounds for any legal action.