The analysis of consultation responses showed some strong themes, however, it should be noted that a number of individuals and organisations opted not to respond to some of the questions, and that those who did respond were small in number.
With this in mind, however, the main views expressed in relation to each of the Chapters of the draft Code of Practice for Investigations were:
- Chapter 1: Several support organisations expressed strong views against the draft regulations in relation to counter fraud officers being able to request information to support investigations. This was mainly on the basis that the regulations were too broad, and that they would undermine organisations' ability to offer client confidentiality, therefore risking delivery of appropriate support. This proposal was seen as going against the rights-based approach advocated by the Scottish Government (i.e. undermining the basic principles of fairness, dignity and respect). For the same reasons, strong views were also expressed against widescale access to electronic information being allowed and proposals to allow entry to premises/searching of premises which may house confidential client records. The approach set out in Chapter 1 was seen by many as disproportionate and heavy-handed compared to existing DWP practice which was viewed as more appropriately constrained.
- Chapter 2: In relation to authorised officers, and restrictions placed upon them by the regulations, feedback concentrated largely on the need for limiting authorisation and for more rigorously defined and specialist training to be offered to just a small number of staff. This may give greater reassurance to a wider range of individuals who may be subject to an investigation as well as to the various organisations who may support them.
- Chapter 3: While respondents agreed with much of the content of the Code around what individuals could expect if being investigated, it was felt that practice could be strengthened by ensuring that individuals were routinely signposted to advocacy and advice to support them at all stages of the investigation process. Putting in place even clearer guidance around what people could expect, including what role an advocate or supporter could play, was welcomed, as were clearer guidelines for directing officers' approach to communication and investigatory interviews. Allowing all people who are interviewed under caution a chance to access a recording of the interview was also considered to be appropriate in meeting the principles of Social Security Scotland.
- Chapter 4: Very few comments were received in relation to proposals for the way that outcomes of investigations are communicated. Ensuring that all communications and information provided to individuals and organisations is accessible and available in a wide variety of formats was seen as key, as was ensuring that people were supported to understand and manage the outcomes of any communications received.
- Chapter 5: Feedback related to the complaints procedure set out in the Code of Practice focused mainly on the need to ensure that the procedure was clearly communicated to individuals and organisations, including the right to access materials collected during investigations to help an individual/organisation support their complaint (especially recordings of interviews). It was felt that further consultation with relevant stakeholders may be required once a final complaints procedure has been developed by the agency.
- Chapter 6: Most relevant legislation had been correctly referenced in the Code of Practice, it was felt, although cross-referencing of the regulations and Code of Practice with the Data Protection legislation (including GDPR) could be strengthened.
Very few comments were made in relation to either business-related impacts of the regulations, or equality impacts. The main comments were linked to the need for a full Data Protection Impact Assessment to accompany the regulations and Code, as well as greater consideration of the needs of females and disabled adults as groups who may be disproportionately more likely to be in receipt of benefits and therefore more likely to be affected by the changes being proposed. This would strengthen the existing assessments that had been undertaken.
The fact that most questions attracted, on average, more supportive responses than non-supportive responses should not, however, be overlooked. Indeed, the only three areas where sentiments were clearly balanced against the proposals were around requests for information, information gathering practices and the proposed rules for entering and searching premises.
More general feedback received throughout the consultation suggests that there may be opportunities for even greater consultation or engagement with claimants and support service providers to learn from their respective experiences in relation to fraud to help the agency adopt an even more tailored and practical approach to reducing benefit fraud. It was stressed that preventative work, as well as reactive strategies to deal with fraud (both intentional and unintentional), should also be explored.
Regular monitoring of the Code of Practice was also encouraged as a longer-term commitment from the Scottish Government to ensure that the Code was being complied with and remains fit for purpose over time.
Again, it is important to highlight that the relatively equal split in opinion is not necessarily reflected in the narrative reporting above, because the majority of qualitative feedback received was presented by those who identified limitations with the proposed drafts. The consultation questions deliberately invited respondents to critically review the regulations and Code of Practice and so this skew in the data presented was, to some extent, inevitable.
The findings presented above will be used by the Scottish Government to inform decisions on the final policy position. The regulations and Code may be revised in line with the feedback received and both will then be laid in Parliament. As set out in the Social Security (Scotland) Act 2018, the fraud investigation regulations will be subject to affirmative procedure in the Scottish Parliament. Post-consultation, the Code of Practice also requires to be published and a copy laid in the Scottish Parliament.
While there was agreement with much of the content being proposed, the consultation was important in highlighting areas where respondents felt the regulations and Code of Practice required to be strengthened ahead of being finalised and put into operation. It has also shown where stakeholders feel that more information on the justification for changes may be required to increase confidence, as well as the areas where further consultation may be required.
There was clear evidence that organisations and individuals welcomed the development of a Code of Practice to act as a reference point and, subject to the changes suggested being put in place, this was seen as being a helpful tool in raising awareness of what could and should be expected from Social Security Scotland. Support organisations, who offered the most resistance to the proposals around access to information, were also keen to endorse those aspects of the proposals which sought to eliminate intentional defrauding of the system. Keeping this as the key focus, and not allowing attention to be diverted to those who may unintentionally fall foul of the system, was seen as key. This would ensure that those who need benefits and assistance the most continue to receive the support required.
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