Estimating fraud and error in the Scottish social security system: Consultation

4. Powers introduced by Sections 87B-E of the 2018 Act ‘Information for Audit’

Section 87B-E of the 2018 Act provide the statutory framework for requests for information required for audit, including:

Section 87B - Obtaining information for audit:

• Who can be asked for information: persons receiving social security assistance under the 2018 Act
• What can be asked for: information relevant to the individual’s entitlement and payments of assistance.
• The purposes for which the information can be used: Information may be requested only for auditing the monetary value of error and fraud in the Scottish social security system, and carrying out corrections of apparent errors and investigations into potential fraud (and other activities connected to auditing).
• The format in which a response to a request may be required: in person, by phone/video call, in writing, or in any other forms specified by the Scottish Ministers in the relevant regulations.
• Exemptions: The Scottish Ministers may make regulations to exclude certain categories of individuals from having to provide information
• Suspension: if a person does not provide the requested information within a specified timeframe, their payment(s) may be temporarily paused. They will be given another opportunity to provide the information before any further action is taken.

Section 87C of the 2018 Act - Right to seek withdrawal of a request

• Right to request withdrawal: A person may ask Social Security Scotland to withdraw the request for information. This must be done before the deadline set out in the regulations.
• Ministers’ decision: Social Security Scotland must make a decision-within a separate timescale (that may be specified in regulations) - on whether the individual’s reason for withdrawal is a ‘good reason’ for the request to be withdrawn. The decision is final, and the individual must be notified of the outcome, including the reasons for it and a formal record of that decision. If it is decided there is a good reason, the original information request must be withdrawn.

Sections 87D and 87E of the 2018 Act - Right to support to respond and Right to Advocacy

• Right to a supporter: Individuals may wish to have another person (i.e. a “supporter”) present during any interview, telephone call, video call, drafting of a written response or any other form of a response relating to a request to provide information. The Scottish Ministers must comply with this wish unless it is unreasonable.
• Right to advocacy: Certain individuals have the right of access to independent advocacy in connection with their engagement with the process for a request for information. The Scottish Ministers must ensure independent advocacy services are available so that the right can be exercised by the individuals who have it.

Failure to respond

If someone repeatedly fails to respond to Social Security Scotland’s requests for information for audit, payments will be suspended. This is not a penalty but reflects that the individual’s ongoing entitlement cannot be confirmed (e.g. they may have moved away or died). Some individuals may also seek to avoid review to conceal misrepresentation or withheld information. Suspension in these cases helps to prevent overpayments accruing.

Individuals will be given another chance to provide the information. If they still do not respond within the set timeframe, the case will be referred for an unscheduled entitlement review. A Case Manager will determine what information is needed to confirm entitlement, and this could ultimately lead to termination of entitlement. ^{[3] [4]} The individual retains the right to challenge any new determination through existing redetermination or appeal rights.