Social Security Fraud: Code of Practice for Investigations

Chapter 3

What to expect if you are being investigated

68. By their nature, investigations are carried out discreetly. Social Security Scotland will not normally tell a person 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. It will also prevent unnecessary worry and distress to those who are found to have no case to answer.

69. As much information as possible will be gathered before the individual under investigation is informed. Where there are reasons to suspect they may have committed an offence, they will always be given an opportunity to offer their account of the events and a reasonable explanation at an interview.

Interview under caution

What is the interview for?

70. An interview under caution is a fact-finding exercise that helps the Counter Fraud Officer understand what has happened and decide what to do next. It does not necessarily mean the individual has done anything wrong or that they will be prosecuted.

71. The interview is voluntary and is a chance to provide a reasonable explanation or to dispute or clarify any of the evidence gathered during an investigation. A person can also provide any documents that may support their explanation. Social Security Scotland will be impartial and treat that person with dignity, fairness and respect and in accordance with the law.

What happens?

72. A letter will be issued with an invitation to attend the interview. If another person such as an appointee, guardian or a person with power of attorney is acting for the person who is receiving benefit, they will normally be dealt with directly. The agency will aim to ensure accessibility and be as flexible as possible about the time and place of the interview, working with the individual to assess any reasonable adjustments that are required. For example, it may be appropriate to conduct an interview in a person's home if they have restricted mobility, or somewhere local to their place of residence.

73. The person who received the benefit payment will usually be interviewed, but in some circumstances, it may be another person, for example if it is suspected they have helped someone else to claim benefits fraudulently.

74. The interview will be recorded and is carried out under caution. This means the suspect does not have to say anything, but that anything that is said may be used in evidence if there is a criminal prosecution. This will always be made clear to the person being interviewed before the interview begins. Recordings will be carefully stored with a clear audit trail to show how the evidence was obtained and handled until it is either produced in court or the investigation ends. A copy of the recording may be provided to the individual who was interviewed on request.

75. Where a case is passed to the Crown Office and Procurator Fiscal Service (COPFS), a person would also be able to obtain a copy of interview recordings through their solicitor. This will include a sealed copy of the interview, which will ensure the content of the interview cannot be amended.

76. The person being questioned is entitled to have someone with them if they choose. This is important in ensuring that people are treated with dignity, fairness and respect. A person can be accompanied by, for example, a friend, relative, advocate, welfare rights or legal representative, but there is no requirement in law for another person to be present. The agency will be very clear about the rights of the accompanying person in terms of what they can and cannot do during an interview. Information about this will be made available in advance.

77. In exceptional circumstances where the accompanying person is themselves suspected of involvement in the offence it may be necessary to exclude them from attending the interview.

78. If the person being interviewed is an adult and because of a disability they appear to be unable to understand sufficiently what is happening or communicate effectively with the investigators, arrangements must be made to ensure that a suitable person is present at the interview to provide support.

79. The role of an individual accompanying someone to an interview under caution, is to provide support to the person being interviewed to help them understand what is happening and to facilitate effective communication between that person and the interviewer. They should not answer questions on behalf of the person being interviewed, but can help them or ask investigators to clarify questions during the interview. They will be given the opportunity to speak at appropriate times.

80. The person being interviewed is also entitled to have a solicitor present during the interview or to consult with a solicitor at any time. Although a person may choose not to exercise their right to have a solicitor present during the interview, they may change their mind at any time. If necessary, the interview should be adjourned until the person is given the opportunity to seek legal advice.

81. A person should not be interviewed without a solicitor being present in the following situations:

• if the person is under 16 years old;
• if the person is aged 16 or 17 years old, unless there is agreement from a parent or other responsible adult that the interview may proceed without a solicitor being present; or
• If the person is an adult and, owing to a disability, they appear to be unable to understand sufficiently what is happening or communicate effectively with interviewing officers.

82. It is the responsibility of the person to contact their own solicitor for the purposes of any private consultation or to arrange their attendance during the interview. They will be told about this in advance of the interview taking place.

83. The interview may be paused at any time for a break or to allow a person being interviewed to seek legal advice, and they are free to end the interview at any time.

84. The person being questioned can always refuse to answer a question or to say anything at all.

85. At least two Counter Fraud Officers will always be present.

86. An interpreter will be provided where appropriate. In accordance withsection 4 of the Act, Social Security Scotland will ensure that individuals who have difficulty communicating (in relation to speech, language or otherwise) can understand questions and express themselves in ways that best meet their needs. This may be, for example, where English is not the first language, or the individual has a sensory impairment or communication difficulty. Religious or cultural sensitivities will also be taken into account where officers are aware of them.

Documents

87. If information or documents are needed from the person being interviewed to help with the investigation, the reason they are needed will be explained and they will be asked to provide them voluntarily. A reasonable amount of time will be given to provide them, but if the time given is not long enough, the person under investigation should contact Social Security Scotland to explain how much more time they need and why.

88. If the request is reasonable, more time will be allowed. However, if it is not deemed to be reasonable, or more time cannot be given, this will be explained. If the person being investigated has any difficulty getting the information and documents requested, they should make contact immediately to discuss how they will get it.