SAAS - fraud cases (FOI/19/01351) further questions: FOI release

Information requested

1. 14 out of the 19 cases where Fraud was identified were not reported to COPFS. Could I please get an understanding as to why, is it your processes that lacked such that the evidence wouldn't be admissible in court. How they did you come to the conclusion that it was fraud if you didn't have substantial evidence.

2. Of the monetary value that was involved what is SAAS doing to recover these amounts considering some of them are large sums (over £25k) especially considering most of the recipients would be in well paying jobs by now

Response

In terms of your first question, as a Specialist Reporting Agency SAAS is responsible for investigating any allegation of fraud. We have powers to gather information and evidence and can apply a range of sanctions where there is evidence of fraud which can include, if appropriate, reporting a case to the Crown Office Procurator Fiscal Service (COPFS).

When considering whether or not to report a case to COPFS there are guidelines that we must follow in the form of the Prosecution Code. Please note that the Prosecution Code is set by COPFS and the ultimate decision whether or not to prosecute an individual also lies with COPFS.

Each case is considered individually and the circumstances surrounding each of our investigations is always different. As such we are unable to provide specific information relating to any individual case but it may be helpful if we provide you with further information that describes the factors that are taken into consideration and applied when making a decision to report a case to COPFS.

The Prosecution Code is available publicly online at the following address and may aid in your understanding of the processes that we follow.

https://www.copfs.gov.uk/images/Documents/Prosecution_Policy_Guidance/Prosecution20Code20_Final20180412__1.pdf

In this you will find detailed explanation of the criteria which broadly cover both legal and public interest considerations. As well as the legal considerations of sufficiency, admissibility and reliability of evidence (which are explained in the Code), the assessment of the public interest is also conducted and often includes consideration of competing interests such as the interests of the victim, the accused and the wider community. This can include factors such as the motive for the crime, the age of the offence and other personal circumstances. Not all of them will apply in every case and the weight to be attached to any applicable factor will depend on the circumstances of each case as discussed above. The availability and suitability of civil action is also considered.

Similarly for your second point in relation to the recovery of any overpayment, SAAS follows the guidance set out in the Scottish Public Finance Manual (SPFM) which states that Public sector organisations should always pursue recovery of overpayments, irrespective of how they came to be made. However, it is also recognised that there are legal and practical factors that may limit our ability to do this. When deciding on an appropriate course of action, taking legal advice where appropriate, organisations according to the Manual should consider:

In this you will find detailed explanation of the criteria which broadly cover both legal and public interest considerations. As well as the legal considerations of sufficiency, admissibility and reliability of evidence (which are explained in the Code), the assessment of the public interest is also conducted and often includes consideration of competing interests such as the interests of the victim, the accused and the wider community. This can include factors such as the motive for the crime, the age of the offence and other personal circumstances. Not all of them will apply in every case and the weight to be attached to any applicable factor will depend on the circumstances of each case as discussed above. The availability and suitability of civil action is also considered.
Similarly for your second point in relation to the recovery of any overpayment, SAAS follows the guidance set out in the Scottish Public Finance Manual (SPFM) which states that Public sector organisations should always pursue recovery of overpayments, irrespective of how they came to be made. However, it is also recognised that there are legal and practical factors that may limit our ability to do this. When deciding on an appropriate course of action, taking legal advice where appropriate, organisations according to the Manual should consider:

• whether the recipient has acted in good or bad faith;
• the cost-effectiveness of recovery action;
• any relevant personal circumstances of the payee, including defences against recovery;
• the length of time since the payment in question was made; and
• the need to deal equitably with overpayments to a group of people in similar circumstances.
• More detailed explanation of the above points can be found in the online document.

https://www.gov.scot/publications/scottish-public-finance-manual/background-and-applicability/background-and-applicability/

In addition to SPFM guidelines, SAAS also has in place a civil recoveries policy which explains how we recover any overpayment. This is available to read in full on our website. https://www.saas.gov.uk/_forms/saas_recoveries_policy.pdf

There are two ways for SAAS to collect an overpayment. We may reduce an award for student support or ask for direct payments to be made. In some circumstances, it may be appropriate to agree a combination of both.

Direct payments can be accepted for the full value of the overpayment, or payment arrangements can be agreed, taking into account individual financial circumstances. One-off lump-sum payments can also be made in addition to a regular monthly payment to; reduce the overpayment amount.

If we have reached an agreement for a student to make regular direct payments to us and they default on the arrangement, we will deduct the overpayment from any current or future award when possible. If a student fails to agree or maintain a suitable payment arrangement, we may proceed to raise legal action and seek a court decree to secure repayment.

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