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

Chapter 1 - The Investigation of Offences Regulations

Regulation 1- 3 – Citation and Commencement, Interpretation and Authorisations for Investigators

17. As the consultation contained no specific questions in relation to draft regulations 1-3 and only a small number of comments were received in relation to them as part of the process, the Scottish Government does not intend to review the content of these regulations or make any changes at this time.

Regulation 4 – Power to require information.

18. Regulation 4 of the Investigation of Offences Regulations 2018, provides a power to require information from any person thought to have information relevant to one or more of the matters that may be investigated.

19. The flexibility of this proposed investigative approach follows a similar principle to that in the Revenue Scotland and Tax Powers Act 2014. It recognises that the Scottish Government is engaged in a rolling programme of benefit implementation where the detailed eligibility criteria of some of the benefits have yet to be defined. As a result, it was not thought possible to prescribe a discrete list of organisations from whom information could be sought when drafting the Investigation of Offences Regulations.

20. Just over half of the consultation respondents expressed concerns regarding the level of discretion afforded by the proposed regulation. It was suggested that it was not compatible with the rights based approach underpinning the Act and the principles enshrined within it and the Social Security Charter. Although it should be noted that one respondent did welcome the 'clear statutory basis for this power'.

21. The Scottish Government is keen to reassure stakeholders that the policy intent underpinning the draft regulations is solely to ensure that appropriate powers are in place to investigate possible cases of fraud. The intention is not to use regulatory powers to cause undue stress to individuals, nor to displace confidentiality between individuals and organisations that provide support and advice. Information will only be sought where necessary to enable the proper investigation of a suspected offence.

22. To ensure this, the proposed power in regulation 4 is strictly limited to requesting information relevant to a matter whose investigation is allowed by the Regulations. An authorised officer may only exercise the power in regulation 4 if they have cause to believe that the person from whom it is being required is in possession of relevant information. It must also be reasonable for the authorised officer to require the information in connection with the investigation.

23. Nevertheless, taking into account the potential negative impacts of any displacement of confidentiality between support organisations and their client, and to address the concerns raised by respondents in the consultation, the Scottish Government is engaging with stakeholders to consider alternative approaches.

Regulation 5 – Power of Scottish Ministers to require electronic access to information.

24. Regulation 5 of the draft Investigation of Offences Regulations will allow authorised officers to enter into arrangements to access information electronically where facilities exist to do so. This power was considered necessary to reflect modern efficient methods of investigation and, by comparison, the DWP already has a similar power under the Social Security Administration Act 1992.

25. One example of how this power might be exercised is in relation to credit reference agencies who could provide direct on-line access to their databases instead of processing individual enquiries in writing. Only authorised officers will be able to access such facilities and only information already within the scope of regulation 4 would be affected by regulation 5. Regulation 5 is not intended to be used gather information not already within the scope of regulation 4.

26. While the respondents were split on the content of regulation 5, with the same percentage agreeing with the proposal as disagreed, the Scottish Government acknowledges the concerns regarding potential intrusion into individuals' privacy.

27. It is recognised that particular care must be taken in the design of processes to access electronic information to ensure compliance with the law enforcement processing provisions of the Data Protection Act 2018 ('DPA'). A Data Protection Impact Assessment (DPIA) has been completed and the Scottish Government is grateful for detailed comments and suggestions of the Office of the Information Commissioner (ICO) in this regard.

Regulation 6 – Entry and search of premises.

28. Regulation 6 of the draft Investigation of Offences Regulations gives authorised officers the power to enter premises, either alone or accompanied, to make inquiries and gather evidence in relation to fraud. The draft regulation states that this would only be done with the permission of the owner or occupier of the premises and this power does not apply to premises used solely as an individual's dwelling place.

29. Almost half of respondents did not agree with this proposal as it required Social Security Scotland to seek permission from either the owner or the occupier, to enter and search premises. There was a particular concern that this could lead to the owner of a premises giving permission, without the occupier being consulted.

30. The Scottish Government agrees with the views expressed by the respondents and will revise regulation 6 to make clear that, where the owner and occupier of premises are separate, permission should be sought from the occupier before entry. The deciding factor relates to who currently has use of the premises, rather than who owns them. The owner should not be able to intervene if the occupier gives, or withholds, permission; the occupier's decision will be final.

31. It was noted that the proposed power in regulation 6 was a departure from the existing practice of the DWP. While the proposed powers do not correspond exactly with the powers exercised by the DWP, it is the Scottish Government's understanding that in practice, the DWP would seek permission before entering premises. As a result the proposed powers within regulation 6 will more accurately reflect the standard practice that actually occurs.

32. In the consultation exercise, a question was raised regarding would happen in the case of a premises such as a women's refuge, used predominantly for residential purposes, but which is also a place of work. It is not the policy intention to enter these premises and the Scottish Government will give further consideration to how this can be addressed.

Regulation 7 – Delay, obstruction etc of an investigation.

33. When investigating fraud, it is important that authorised officers are able to gather any relevant supporting information as quickly as practicable and draft regulation 7 related to obstruction of an investigation. This is a necessary element of a professional investigation and the respondents to the consultation seemed broadly supportive of the proposed power.

34. One area of concern highlighted a lack of clarity around what might constitute a 'reasonable excuse' for failing to comply with a requirement under the regulations. In particular, whether this would this cover maintenance of client confidentiality by welfare rights advisers.

35. A blanket consideration of client confidentiality as a reasonable excuse would be inappropriate as it would enable individuals and organisations not to comply with the requirements laid out within the regulations and undermine Social Security Scotland's ability to prevent and detect fraud. However this is balanced against the stringent circumstances in which information can be required, as laid out in regulation 4.

36. While the Scottish Government does not consider that client confidentiality would be considered as a 'reasonable excuse', in the event that a matter is reported to the Procurator Fiscal and a defence agent is appointed, legal professional privilege would then apply.

Regulation of Investigatory Powers (Scotland) Act (2000)

37. A number of respondents raised concerns about the intention of Social Security Scotland to exercise proposed powers of covert surveillance, as they believed this was disproportionate and overly intrusive.

38. This may be founded upon the misunderstanding that Social Security Scotland would operate within the regulatory framework of the UK Regulation of Investigatory Powers Act (RIPA) 2000 rather than the Regulation of Investigatory Powers (Scotland) Act (RIP(S)A 2000.

39. It is not clear whether all or some of the perceptions about the use of surveillance more generally were informed by this misunderstanding, but some respondents indicated that surveillance was a disproportionate response to tackling fraud and a misuse of powers primarily targeted to tackle matters relating to prevention of terrorism and protection of national security.

40. RIP(S)A provides a regulatory framework, which ensures that any surveillance carried out by public sector bodies is compliant with the European Convention on Human Rights (ECHR). RIP(S)A creates a system of authorisation that must be obtained before surveillance can be used, regulates the use of these techniques and safeguards the public from unnecessary invasions of their privacy.

41. RIP(S)A contains no statutory purpose in relation to national security and the Scottish Government considers it a proportionate tool to prevent and detect offences. It should also be noted that RIP(S)A is already used by several public bodies such as Marine Scotland, NHS Scotland and the Scottish Environmental Protection Agency (SEPA).

42. The Scottish Government recognises that improper use of covert surveillance could have potentially detrimental impacts on clients and any surveillance carried out under RIP(S)A is subject to formal authorisation procedures by the Chief Executive of Social Security Scotland and two codes of practice, which Social Security Scotland will comply with.

43. The power to make these types of authorisations is overseen by the Office of Surveillance Commissioners. The Investigatory Powers Tribunal also has jurisdiction to investigate and determine complaints against the use of investigatory powers and human rights claims. The Scottish Government is content that these measures will prevent improper use of covert surveillance and should alleviate the concerns raised by stakeholders.

Rights Based Approach

44. A number of respondents noted that, in their view, the powers contained within the Investigation of Offences Regulations were in contrast to the 'rights based approach' that underpins the Social Security (Scotland) Act 2018.

45. The Scottish Government is fully committed to a rights based approach and to ensuring that every client is treated with dignity, fairness and respect at all times. While all investigations will proceed with the presumption of innocence, money lost to fraud is money that cannot be used to support people in need.

46. As outlined in the Scottish Government Public Finance Manual^[1], the Scottish Government has a zero-tolerance approach to fraud and in line with the Scottish Government's Counter Fraud Strategy 'Protecting Public Resources in Scotland'^[2], any possible cases of fraud will be investigated proportionately and professionally.

47. The Scottish Government will ensure that the powers contained within the amended regulations are consistent with the 'rights based approach', and balance the principles enshrined within the Act and our Charter with the need to prevent and detect crime by investigating possible cases of fraud in a professional manner.

48. It was also noted in relation to Chapter 1 of the draft Code of Practice that a number of domestic abuse related issues may impact on fraud investigations. The Scottish Government understands the sensitivity of this issue, and will ensure that awareness of this is an integral part of training for Authorised Officers. In addition the use of the RIP(S)A regulatory framework for the use of surveillance puts in place important safeguards to ensure it is used proportionately and when necessary.

49. One respondent suggested that the draft Code of Practice should be amended to confirm that authorised officers making use of publicly available information to assist with their investigations, would still be required to comply with relevant data protection legislation. The Non-Statutory Code of Practice has been updated to reflect this.