Chapter 3 - What to Expect if Being Investigated
The guiding principles for the new Social Security Scotland agency are that people be treated with dignity, fairness and respect. In developing the new investigative Code and regulations, consideration was given to how these principles could be embedded, including how the purpose and scope of an investigation was communicated to individuals and organisations, and what they should expect once asked to engage with the agency in relation to an investigation. Chapter 3 of the Code of Practice sets out what individuals should expect if they are invited to take part in an interview under caution as part of an investigation, as well as what would be required of them in providing documentary evidence to investigations (including timescales for producing the evidence required).
Treating People with Fairness, Dignity and Respect
A catch all question was asked about whether the Code was sufficiently detailed to explain how a person would be treated if subject to an investigation.
Q9. Does Chapter 3 of the Code of Practice provide sufficient detail to explain how a person will be treated with fairness, dignity and respect during a fraud investigation? If not, please explain what else you think could be added to ensure this.
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Just under half of respondents indicated that they did not feel that sufficient detail had been provided to explain how individuals subject to investigation would be treated with dignity, fairness and respect, however, the comments received were comprehensive in nature.
Communicating the Right to Advocacy and Support
While it was welcomed that the Code of Practice recognised that many individuals require support when being interviewed under caution, it was suggested that clear advice needed to be made routinely available to let individuals know what support was available (including interpreters), and how to access that support:
"In order to ensure this support is available, individuals should be asked routinely, before any interview, if they would need someone present or if any other reasonable adjustments are required. Clearly advising individuals of their rights at the point they are invited to an interview under caution may be the best way of getting this information."
Advising all individuals in advance of their right to be accompanied to an interview would help to further strengthen the Code and help it realise the principles of fairness, dignity and respect, it was suggested. Making provisions to routinely offer pre-interview support was also encouraged:
"Independent advice should be given to the individual before the interview under caution takes place, this would ensure that the individual is clear about the status of the interview, how it will be conducted, what will happen to the information provided and the potential implications of this."
Several organisations highlighted that the right to advocacy support should be explicit in the regulations and was particularly important for adults with disabilities, including learning disabilities as well as older adults and other vulnerable groups:
"…we strongly believe that the agency should state explicitly (and also actively encourage) in all communications leading up to the interview that the person should seek support and can bring a friend or advocate to the interview as this will help to ensure that dignity and respect for the person being investigated are upheld."
Importantly, any communications from the agency should differentiate between the right to advocacy and advice during interviews as well as encouraging people to seek support before and after the interview, it was suggested. Adopting this approach as standard was encouraged, with extra safeguards for those with additional support needs.
Additional information and clarity around what an advocate or advisor can and cannot do during an interview was also sought by one organisation.
Based on experience, several support services provided comments that clients were currently often not treated with dignity, fairness and respect during investigations and that these were often perceived to be stressful and intimidating. However, the Code of Practice, as currently drafted, was felt by some not to provide reassurances that client experiences would improve under the new Social Security Scotland agency.
Another specific issue raised was that lack of awareness among interviewing officers may mean that some adults could find themselves interviewed without sufficient advocacy or support, simply because officers are not aware of/able to correctly identify the extent or depth of impairments.
A similar issue was highlighted in the need for officers to be appropriately alert to issues of domestic abuse which may mean tailoring interview approaches differently, i.e. that they be trained to recognise and respond appropriately to domestic abuse related cases.
One organisation stressed that it was important that individuals be made aware that they were "innocent until proven otherwise" and another organisation stressed that interviews must be conducted "with a presumption of innocence at the outset". Counter fraud officers should also demonstrate this in their practice and interview approach:
"Confirmation bias should be avoided and the proceedings should be impartial - the technique of using leading questions and making assumptions from statements should be avoided."
Again, based on experience, this organisation reported that investigations can sometimes be experienced like an interrogation and that individuals would not respond well to an accusatory approach which may cause undue distress - thus going against the principles of dignity, fairness and respect.
One organisation agreed that interviews should be guided by the Scottish Social Security principles but also that they should employ the following principles of good investigative practice currently operated by DWP, namely:
- the aim of investigative interviewing is to obtain accurate and reliable accounts from victims, witnesses or suspects about matters under investigation;
- investigators must act fairly when questioning victims, witnesses and suspects. Vulnerable people must be treated with particular consideration at all times; and
- interviewing should be approached with an investigation mind-set. Accounts obtained from the person who is being interviewed should always be tested against what the investigator already knows or what can reasonably be established.
The same organisation stressed, however, that "good investigative technique should not be followed at the expense of respect for the dignity of the individual in question."
Some practical issues could perhaps also be made more explicit in the Code, it was suggested, including the need to clearly communicate to individuals what type of interview they will be attending, the time and place of interviews (ensuring that these are 'family friendly' and do not discriminate against some individuals based on their caring commitments), the option to be interviewed by same gender officers, if appropriate, and making sure that language used in communications about interviews was clear and accessible.
One organisation specifically commented on the severe detriment that may be experienced by children and young people living in households where Family Allowance and Tax Credits may be stopped, indicating that what they perceived was a "heavy-handed approach" was contradictory to the UN Convention on the Rights of the Child:
"…the process of investigations and particularly the stoppage of other benefits is extremely detrimental to families and can leave them with financial hardship, stress and anxiety as a result. Many are forced to become completely reliant on charities to survive: for foodbank parcels and for credit for gas and electricity meters, which is counter to the principles of dignity and respect. Further, families are often not aware of when the investigation would be resolved or if they would get any money back or re-instated."
In such cases, it was seen as essential that the presumption of innocence was employed and that benefits are not stopped until a conclusion is reached and an individual is proven to be guilty of benefit fraud. Social Security Scotland should be clear in their approach to this, it was stressed.
Comments were also made that individuals should be able to request a copy of any recorded interviews in all cases, and not only in cases passed to the Crown Office and Procurator Fiscal Service (COPFS), as specified in the Code:
"We also recommend that, in order to ensure all individuals are able to seek redress in cases where they feel they have been subject to investigations that undermine principles of dignity, fairness and respect, all individuals should have the right to access copies of interview recordings."
This was especially important in cases where individuals may wish to make a complaint regarding the conduct of an interview (discussed in more detail below).
Q10. Do you have any other comments about the contents of Chapter 3 of the Code of Practice for Investigations?
Four respondents provided other comments in relation to Chapter 3 of the Code of Practice, some of which simply reiterated points made earlier in the consultation.
One organisation commented that, while the Code of Practice dictates that individuals will not be told they are under investigation while the facts are being established (so as to avoid unnecessary worry and distress), care needed to be taken that the practice of Social Security Scotland in this respect was compliant with the duty to provide information under section 44 of the DPA. The exemptions from this duty as currently set out would not allow information to be withheld. The same organisation noted that, "where an exemption can be applied in a particular investigation, information about the ability of Social Security Scotland to conduct investigations into possible fraud should still be made available to the public generally, for example, as part of a privacy notice provided to people when they first apply for a devolved benefit."
One individual commented that the proposals seemed "unfair" because many people in receipt of benefits and who may find themselves subject to investigation were likely to be unable to afford legal representation. If people chose not to attend interviews as a result, the outcome of the investigation may also be negatively impacted:
"Being interviewed under caution without a legal representative or being able to afford a legal representative is a weakness of this proposal. By the claimants -very position [as] unemployed/sick/ disabled, etc. they are in no position to seek legal advice."
Finally, one individual also objected to the use of the term 'story' used within the Code of Practice (i.e. that individuals will always be given an opportunity to put their side of the story and offer a reasonable explanation at interview). It was suggested that the chapter be redrafted or that this term be removed completely as it may: "imply an element of fiction or at least a biased interpretation of events that is not reliably truthful." An alternative may be to rephrase this as an opportunity for the individual to "comment on the evidence gathered", it was suggested.