Social Security Fraud: Code of Practice for Investigations

Chapter 4

Outcome of an investigation

89. A completed investigation will have one of a number of possible outcomes.

No case to answer

90. Where there is no case to answer and the person under investigation was not aware that an investigation had been taking place, the investigation will be closed with no further action. If the person was aware of the investigation, or had already been interviewed, this closure will always be confirmed in writing and where necessary in an appropriate format.

Evidence suggests there is a case to answer

91. Once all evidence has been gathered, the Counter Fraud Officer will pass the information to a person trained to administer the specific benefit, or benefits, that have been paid. With the new information they have been given, that decision maker will decide whether it was paid correctly or incorrectly. Correctly means that an individual was entitled to receive the benefit at the level at which it was paid. Incorrectly means they were not entitled to receive it at all, or, alternatively, that they were not entitled to receive it at the level at which it was paid.

Benefit was paid correctly

92. If the decision maker decides that the benefit was paid correctly, no further action will be taken and the investigation will be closed. Social Security Scotland would then communicate with the person to confirm this.

Benefit was paid incorrectly

93. If benefit was paid incorrectly, the decision maker will also consider whether or not Social Security Scotland should ask for the money to be paid back. The individual would then be notified in writing of the outcome.

94. If money is to be recovered, it will usually be done under sections 63-69 of the Act. However, where the overpaid benefit is not paid under the Act, for example Job Start Payment, the common law powers for recovery of overpayments will be relied upon.

95. If the decision maker confirms that the benefit was paid incorrectly, they will also consider whether the recipient has acted in good or bad faith. If the facts of the case and evidence suggest an offence has been committed, the counter fraud team may also decide that it should be reported to COPFS.

96. COPFS is Scotland's independent prosecution service and is responsible for all prosecutions in Scotland. Part of their role is to consider whether the evidence presented in a report from the police or other reporting agency is sufficient and capable of proving beyond reasonable doubt that an offence has been committed. If so, COPFS will decide what action if any it is appropriate to take in the public interest. More information about the role of COPFS can be found on their website^[17].

97. If a decision is taken to report a case to COPFS, Social Security Scotland would then write to the person to advise of this and to let them know that their investigation has concluded. Where COPFS decide that the case should not be taken any further, they will notify the individual.

Data

98. Article 5(1)(e) of the GDPR^[18] and the fifth principle^[19] of the Law Enforcement Processing provisions of the DPA require that personal data is not kept longer than is necessary. Regular reviews will be conducted to ensure that data is stored only for as long as it is needed. When the investigation and all related action has concluded, the documents and evidence gathered will be retained and destroyed in line with Social Security Scotland's data retention policy, which will be published separately at a later date.