Consultation on the Investigation of Offences regulations and Code of Practice for Investigations

SWA are concerned that the wide-ranging powers outlined in the proposed regulations which compel individuals and organisations, including charities and service providers, to provide individual information are disproportionate to the issue of possible fraudulent claims within the Scottish Social Security system. We believe that the consequences of the regulations, as drafted on independent, confidential support and advisory services and on their clients have not been fully assessed or understood.
The regulations as currently drafted allow social security counter fraud investigators to compel organisations to provide any information they have, including electronic records, and would give them the power to enter and search premises, as well as question members of staff.

Women’s Aid has over 40 years’ experience of supporting women and children who have experienced domestic abuse. The reputation of our services is founded on listening and believing women and children, understanding their experiences, and strongly respecting and maintaining their confidentiality. Confidentiality is paramount to women approaching our services knowing that as an independent specialist domestic abuse service how highly we respect and will maintain their confidentiality. Women’s Aid operates a strict confidentiality policy, disclosing information without consent only in very specific circumstances. This is essential to women and children developing trust in Women’s Aids services and is very often critical to their safety.
Women’s Aid groups also provide counselling services for both women and children within their services and premises. Counselling services do not appear to be exempt from these provisions. This would be a breach of the British Association for Counselling and Psychotherapy Code of Ethical Conduct.
We believe the proposed legislation will seriously compromise how Women’s Aid and other women’s essential services such as Rape Crisis are able to continue to provide confidential support to women and children. We do not consider this proposal an appropriate or proportionate response to managing fraud within the Scottish social security system, or to the stated principles of dignity and respect contained in the Act.
SWA believe these regulations represent an unnecessary interference to an individual’s right to privacy under article 8 of the European Convention of Human Rights. The Equality and Human Rights commission has highlighted the intrusive nature of current social security fraud investigations in their research report; Social security systems based on dignity and respect. This raised concerns with “the ease with which officials investigating suspected cases of social security fraud can access information on claimants held by other public bodies and even private companies is problematic.” The report also highlights concerns with social security officials’ ability to self-authorise such investigations.
SWA strongly recommends that the regulations are amended to ensure that Women’s Aid and other organisations providing confidential support and advice are exempt from the requirement to provide information and to breach confidentiality.

As outlined above the legal compulsion to provide information, without the consent of the individual woman concerned is a fundamental breach of confidentiality and trust for Women’s Aid. As the consultation document sets out it is ‘modern practice’ to record and store information electronically. Support providers, such as Women’s Aid use electronic case management systems to securely manage and store personal confidential data in accordance with GDPR requirements. Being compelled to provide access to electronic records, which contain detailed case notes and personal and intimate information about individual women’s experiences of domestic abuse is an appalling invasion of privacy and a total breach of the relationship between Women’s Aid and the women and children we support.

SWA believe that it would be totally inappropriate for social security fraud investigators to be able to enter and search premises such as Women’s Aid, for the reasons outlined above.
Women’s Aid offices are also often contained within refuges, the addresses of which remain confidential for obvious reasons. Refuges provide accommodation for women and children in crisis, forced to move because of domestic abuse and designed to be a place of safety and security.
The regulations (Regulation 6(2)(b)) are not clear whether permission of both owner and occupier is required. Women’s Aid groups lease accommodation to use as offices and refuges from local authorities and housing associations – unless permission is required by both the owner and occupier - then the owner could agree without Women’s Aid’s permission or knowledge.

As stated above we believe this to be a disproportionate and inappropriate response to investigating possible fraud. The proposal to fine individual members of staff is we believe excessive

As we have detailed above SWA believes that Women’s Aid should not be compelled to provide information that breaches the confidentiality of the women and children we support.

SWA are also concerned about the extending the scope of the powers for covert surveillance as set out in the consultation. We believe this is disproportionate; the Regulation of Investigatory Powers (Scotland) Act 2000 is intended for use in counter-terrorism and national security matters, not social security policy, where fraud is rare.

Surveillance and monitoring are also central to women’s experience of coercive control by an abusive partner or ex-partner. Replicating these methods, particularly for women who themselves have been coerced and exploited is not consistent with the principles of dignity and respect, equality and non-discrimination, and a human rights-based approach.

SWA believes that the training outlined is insufficient to their roles and responsibilities as counter fraud investigators.

SWA believes that the Code of Practice should detail the specific training that counter fraud officers will be required to have completed to be able to carry out this role and that this should include domestic abuse training, as well as mental health, equality and human rights training.

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. Women in receipt of social security need to understand clearly what type of interview they are being asked to attend and be able to have representation available to them in such circumstances. Interviews should be timed to take place at convenient times e.g. during school hours or when arrangements can be put in place for childcare. The investigative officer should also be experienced and trained to recognise and respond appropriately to domestic abuse. This is essential where an investigation relates to an abusive partner and additional arrangements need to be put in place for her safety.
While the Code of Practice recognises that some individuals may require support to attend an interview under caution. SWA believes that individuals should be made aware of their right to have a person to support them present and any other adjustments such as an interpreter –in advance of the interview so that this can be appropriately arranged. Women, particularly where they have experienced domestic abuse and this is relevant to the investigation, should have the choice of the interview being conducted by female staff.
We also believe all individuals should have the right to a record of the interview made under caution. This would support individuals experiencing stress and anxiety, or hearing loss for example as well as interpreting challenges to understand the issues under investigation, and to challenge or make a complaint about the process.

SWA believes that as well as communicating the decision in writing it should also be provided in the format that is most accessible to the individual concerned e.g. electronically, audio file etc.

Where there is no case to answer and the person under investigation was unaware that an investigation was taking place the draft Code of Practice suggests the person will not be informed if the case is closed with no case to answer. While it’s important to avoid unnecessary stress if this information remains on an individual record they should have the right to be informed about it.

Where an individual is informed that the determination of entitlement is wrong, was incorrectly paid, repayment is required or the case is being referred to COPFS they should also be informed of independent advice and advocacy services in they can contact for support. In cases where there is domestic abuse this should include Women’s Aid.

The impact of the regulations on organisations such as Women’s Aid to be able to continue to carry out their work – their core business - as we have set out above will be severely impacted. This has not been addressed in the business related impacts.

We believe the EQIA does not fully consider the impacts on women that the regulations as drafted will present. The consultation notes that some organisations have highlighted that gender may be an important aspect of some benefit fraud, due to aspects of coercive control and domestic abuse. However, this is not reflected within the EQIA assessment which states that there will not be any particular impact on groups who share protected characteristics as the principal interaction will be between officers of the agency and organisations. “We believe there is unlikely to be an impact on individuals in receipt of assistance from the agency.”
SWA believes this is unlikely to be the case and that women and women’s organisations themselves will be, as we have explained in this response, seriously impacted by the regulations as currently drafted. For example, the majority of benefits devolved to the Scottish Social Security agency relate to disability entitlements, disabled women, are twice as likely as non-disabled women to experience gender-based violence. In most cases the abuser is also the carer who will have control over making and maintaining benefit claims. Research carried out by Women’s Aid found that disabled women experienced control by partners of their benefits, often reporting having no access to their disability benefits.
We recommend that a more detailed EQIA is carried out to fully understand and address the implications of the policy on women’s equality.