The Social Security Assistance (Investigation of Offences) (Scotland) Regulations 2020

Publication Date:January 01, 2020

2020No. 11

SOCIAL SECURITY

The Social Security Assistance (Investigation of Offences) (Scotland) Regulations 2020

Made23rdJanuary2020

Coming into force24thJanuary2020

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 75(1) of the Social Security (Scotland) Act 2018( 1) and all other powers enabling them to do so.

In accordance with section 96(2) of that Act a draft of these Regulations has been laid before and approved by resolution of the Scottish Parliament.

PART 1

Introductory and interpretation

Citation and commencement

1. These Regulations may be cited as the Social Security Assistance (Investigation of Offences) (Scotland) Regulations 2020 and come into force on the day after the day on which they are made.

Interpretation

2. In these Regulations—

“the Act” means the Social Security (Scotland) Act 2018,

“authorised officer” means an individual authorised by the Scottish Ministers under regulation 3 to conduct investigations, under an authorisation which is for the time being in force in relation to that individual, and

“matters that may be investigated” means the matters described in regulation 3(7).

PART 2

Authorisations

Investigations: authorised officers

3.—(1) An individual is authorised by the Scottish Ministers for the purposes of these Regulations if, and only if, the Scottish Ministers grant an authorisation in accordance with this regulation in respect of the individual in relation to one or more of the matters that may be investigated (see paragraph (7)).

(2) An authorisation may only be granted to an individual who—

(a) is an employee of one of the following—

(i) a Minister of the Crown,

(ii) a person established by an enactment,

(iii) a body comprised solely of persons described by this sub-paragraph, or

(iv) a body corporate that has no members other than persons described by this paragraph or persons acting on behalf of persons described by this paragraph, and

(b) has undertaken such training as the Scottish Ministers consider appropriate to enable the individual to exercise the powers conferred by regulations 4, 7 and 8.

(3) An authorisation ceases to have effect if that individual's employment terminates.

(4) An authorisation—

(a) must be contained in a certificate provided to that individual as evidence of their entitlement to exercise powers conferred by these Regulations,

(b) may contain provision as to the period for which the authorisation is to have effect, and

(c) may restrict the powers exercisable under the authorisation so as to limit their exercise to particular matters that may be investigated, to particular circumstances or in relation to particular types of assistance.

(5) An authorisation may be withdrawn at any time by the Scottish Ministers and ceases to have effect when the authorised officer is notified of the withdrawal.

(6) An individual who for the time being has the authorisation of the Scottish Ministers is entitled, in connection with one or more of the matters that may be investigated, to exercise any of the powers which are conferred by regulations 4, 7 and 8.

(7) The matters that may be investigated are—

(a) activity related to the possible commission of any of the following offences—

(i) an offence under section 71 of the Act (offence of trying to obtain assistance by deceit),

(ii) an offence under section 72 of the Act (offence of failing to notify a change in circumstances),

(iii) an offence under section 73 of the Act (offence of causing a failure to notify a change in circumstances),

(b) in relation to the offences referred to in sub-paragraph (a), where a disease or injury has given rise to, or may give rise to, a claim for assistance under the Act, the circumstances in which that disease or injury—

(i) occurred, or may have occurred, or

(ii) was, or may have been, received or contracted.

(8) In this regulation “type of assistance” means a type of assistance provided for by—

(a) Chapter 2 of Part 2 of the Act (types of assistance to be given),

(b) any Regulations providing for financial assistance under section 79 of the Act (power to provide for top up).

PART 3

Investigatory powers

Power to require information

4.—(1) Subject to regulation 5, paragraph (2) applies where an authorised officer has grounds for suspecting that a body or person—

(a) has, or may have, possession of information, or

(b) can access any information,

that is relevant to any matter that may be investigated.

(2) An authorised officer may, by a notice as described in regulation 6, require that body or person to provide information that the authorised officer considers relevant to one or more of the matters that may be investigated.

(3) An authorised officer must destroy any information received in response to such a notice as soon as it ceases to be needed in connection with the matters that may be investigated.

Restrictions on power to require information and on requirements to provide it

5.—(1) Other than as described in paragraph (2), no requirement under regulation 4 may be made in respect of a body—

(a) established with the main purpose of providing advice, information or related services in relation to social security, housing or debt without cost to those who receive those services,

(b) established for the purpose of providing legal services to the public (whether generally or individually) and which does not redistribute any profits made, but reinvests any profits for that purpose,

(c) that is a voluntary organisation that provides temporary accommodation, information, support or advocacy services wholly or principally for persons who have suffered domestic abuse or threats of abuse, or

(d) with whom the Scottish Ministers have an agreement for the provision of advocacy services, within the meaning of section 10(4)(a) of the Act.

(2) Paragraph (1) does not prevent a requirement being made for provision of information relating to the employment of persons by the body, or relating to the terms and conditions on which, and the frequency with which, persons have provided services to the body.

(3) No body or person is required by a notice under regulation 4 to provide any information exchanged between client and legal adviser, if a claim for legal professional privilege would be successful if made in respect of that material in any proceedings.

(4) No person is required by a notice under regulation 4 to provide any information that incriminates, or tends to incriminate, either the person or the person's spouse or civil partner.

(5) Paragraphs (3) and (4) apply whether the information is in documentary form or not.

Notices requiring information

6.—(1) A notice under regulation 4(2) must specify the period of time within which the information is to be provided.

(2) The time specified in a notice must be no fewer than a period of 10 working days beginning with the day after the day on which the notice is served.

(3) An authorised officer may vary a notice, but only to remove a requirement or to extend the time period for compliance.

(4) Where a notice is varied in accordance with paragraph (3), an authorised officer must serve the notice as varied on the body or person on whom the notice was originally served.

(5) Nothing in paragraph (3) restricts the ability of an authorised officer to serve a further notice requiring information.

(6) For the purpose of paragraph (2), a “working day” is a day other than—

(a) a Saturday,

(b) a Sunday, or

(c) a bank holiday in Scotland under the Banking and Financial Dealings Act 1971( 2).

Electronic access to information

7.—(1) Where it appears to the Scottish Ministers that—

(a) a body or person keeps electronic records,

(b) those records contain or are likely from time to time to contain any information that could be required under regulation 4(2), and

(c) facilities exist under which electronic access to those records is being provided, or is capable of being provided, by that body or person to...

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