Under the offence in section 39, intent has to be shown; however, that is not the case with the offence in section 40, which is the one that we have a problem with. Mark Griffin is correct to say that that is different from the UK system. As I have said before, it is unfortunate that a new system that is trying to engender dignity and human rights actually gives less protection to Scottish subjects than they would have down south.
I have problems with the drafting of the bill. Section 40 is particularly weak, as it provides that
“A person commits an offence if ... the person ... ought to have known that the change might result in an individual ceasing to be entitled to assistance”.
That is equivalent to saying that the person suspects that something might be wrong, and it is a very low threshold for criminalising people. We must remember that criminalising individuals has a huge effect on their lives, including in areas such as their credit rating, insurance and travel, so giving someone a criminal record is something that should not be looked at lightly.
Our position, therefore, is that a simple suspicion that something might be wrong is too low a threshold. As far as protections are concerned, the most similar to the one that we are discussing is in the housing benefit overpayment regulations, which an Upper Tribunal judge has described as draconian. The problem is that requiring that somebody be reasonably expected to realise that something is wrong is a low threshold. We have a case where a couple gave a local authority the correct information on four different occasions, but the money was still held to be recoverable because they knew or ought to have known that there was a problem. Someone may have given the right information, but at any point while the benefit continues to be in place, it can be argued that, because the person knows that their information has not got to the right place, any overpayment made thereafter is recoverable.
In another case—if I remember correctly—a gentleman who had very limited experience of the housing benefit system put in for housing benefit and gave in his wage slips correctly, but the local authority assessed his weekly wage slip as an annual wage slip and he was given full housing benefit. Immediately prior to that, he had gone in to see his housing benefit office and the person who had put in the information incorrectly and told him that he was going to get full housing benefit, but it was still held that he ought to have known because when he got the letter in which the mistake that was made was identified, he ought to have read it in full. That letter is about eight pages long and quite difficult to decipher.
The problem is that the level of protection under section 40 is far too low. Our position—and the bottom line—is that, for someone to be given a criminal record, there ought to be criminal intent, and that ought to be in the bill. It is in section 39, but it should be in section 40, too.