Meeting of the Parliament

Meeting date: Wednesday, January 15, 2020

Official Report 1092KB pdf

Parliamentary Bureau Motion

The next item of business is consideration of Parliamentary Bureau motion S5M-20448, in the name of Graeme Dey, on approval of a Scottish statutory instrument.

Motion moved,

That the Parliament agrees that the Social Security Assistance (Investigation of Offences) (Scotland) Regulations 2020 [draft] be approved.—[Graeme Dey]

Alison Johnstone wishes to speak against the motion.

Benefit fraud is a serious issue and the Scottish Government is right to put in place a system to combat it. However, in the vote on the draft regulations today the Greens will abstain, because we have several concerns. Organisations including Child Poverty Action Group and NHS National Services Scotland have expressed concern about an approach whereby information may be required from any person or organisation, with some exceptions. That is broader than the United Kingdom approach, which specifies the type of person and organisation that may be required to give information.

The Scottish Government maintains that, while the devolved benefits system is developing, investigatory powers need to be flexible. However, it would be better to provide for only the powers that the Scottish Government knows that it needs and to ask the Parliament for broader powers later, should new benefits be established.

The regulations should be more specific about the training that authorised officers are required to undertake, given the sensitivity and complexity that are involved in investigating fraud. Inclusion Scotland and others raised that issue during the consultation.

We have also expressed concern that not everyone who is investigated will be informed that they have been investigated. That will hinder such people’s right to complain.

Given those concerns, Greens are not able to support the draft regulations and will abstain.

I invite Shirley-Anne Somerville to respond for the Government.

The regulations, as drafted, are proportionate and necessary. They will allow information gathering to differentiate, in the most efficient way possible, between people who make genuine errors and those who seek assistance to which they are not entitled. We worked closely with our stakeholders to understand the issues that were raised in the consultation and we amended the proposed regulations accordingly.

We comply with all relevant data protection legislation and think that we have addressed the points that the Information Commissioner’s Office raised in its consultation response.

On balance, we think that telling a client about an investigation in every case would have unintended consequences, particularly given that there are cases in which no evidence of fraud is found. Doing so would lead to worry and distress and would outweigh any benefit. Indeed, it might increase the number of vexatious allegations.

The privacy notice informs clients in advance about who data will be shared with and says that data may be collected for the purposes of prevention, investigation, detection and prosecution of criminal offences. If an individual makes a subject access request after an investigation is closed, information that relates to the investigation will be released if it does not prejudice on-going proceedings.

When we were developing the regulations, we considered including a list of organisations from whom information could be required. We rejected the approach for a number of reasons. First, we are in the process of developing the social security system, and the detailed eligibility criteria for benefits are unknown at this time. Social Security Scotland must be able to respond swiftly to new methods and types of fraud, and the need to wait for organisations to be added or removed from a list would impact on its ability to do so.

Secondly, we engaged with many other Government agencies and local authorities, a number of which noted that their efforts to tackle fraud are hampered by a lack of statutory information-gathering powers.

As I said to the Social Security Committee, we will review the regulations after they have been in operation for two years. If the review indicates that a discrete list would be more appropriate, such a list can be created at that time.

Information will always be gathered by trained professionals who have the appropriate skills and who will proceed on the basis of a presumption of innocence in all cases. Counter-fraud officers will work towards meeting the standards in the new Government counter-fraud profession, which provides for a common set of professional standards and competences for employees of public bodies who investigate fraud.

The regulations will restrict the pool of staff who can obtain sensitive information and ensure that powers can be exercised only by those who are authorised to do so. Authorisation can be withdrawn at any time if an officer is found to have fallen short of the high standards that are required.

Fraud investigators will have to satisfy authorised officers that requests for information are necessary and proportionate before requests are approved. That will serve as a safeguard against misuse of the information-gathering powers.

We welcome the Social Security Committee’s recommendation that the draft regulations be approved by the Parliament.

The question on the motion will be put at decision time.