Introduction
The
Bill
Human Rights
Getting and sharing information
Two strikes and you are out
Fines
Offences
Conclusion
As
part of the Government's final parliament before the next election the issue
of Benefit Fraud is to be tackled again - with a tougher line against
fraudsters (tying back to the Treasury's battle against the so called black
economy) and more consistent powers for the obtaining of information.
Obtaining information has been a troubled problem for the DSS. Initially the powers given to Local Authority inspectors,
under the Social Security Administration (fraud) Act 1997, were incorrectly
specified. As a result Local
Authority inspectors had the power to obtain information from third parties,
which they promptly utilised with good effect.
This however left egg on thefaces of DSS policy officers, since
the DSS had not intended that these powers would extend so widely. In
fact they had entered into consultation with the banks and building societies
on this very issue.
The
Human Rights Act 1998 came into effect on the 2 October 2000
bringing with it tighter rules on protecting privacy and the right to private
life. The DSS panicked and the
result was a serious weakling of powers, demonstrated by changing the
designation of "inspector" to that of "authorised
officer".
However,
the powers of inspectors or designated officers could not be restricted if the
Department was expected to keep up its fight against benefit fraud. The Treasury was taking a hard political line on the issue of
petty crime and "Zero-Tolerance" was becoming the watch word.
This tough approach was fine but the Human Rights Act provided that
anyone accused of a criminal offence (such as fraud) would have the right to a
fair trial. This has moved the
approach of merely "name calling" - see Weekly Benefits Savings and
Verification Framework - to having to prove what would previously have been
designated as nothing more than a libellous comment.
Therefore what we now have before us is the Social Security Fraud Bill
which attempts to right wrongs and get investigation back on track.
The
bill is made under s19(1)a Human Rights Act 1998.
Which means that as far as Parliament is concerned nothing in the bill
infringes the Human Rights Act. Whether
there will be issues on this, only time and case law will show. Even if there are weaknesses in the bill, then, providing the
authorised officer complies with them, the Data Protection Act 1998, Human
Rights Act and the common law of confidentiality, if complied with by the
Authorised Officer, will continue to protect the innocent.
This
section starts by adding to the list of those who are to supply information:
·
Banks building societies
and credit agencies
·
Insurance companies
·
Credit reference
agencies (such as Equifax and Experian)
·
Any body the principal
activity of which is to facilitate the exchange of information for the purpose
of preventing or detecting fraud (Police intelligence, NCIS, National Hunter)
·
Anyone involved in money
transfer (cheque shops, merchant banks)
·
Utilities (gas,
electricity, water companies)
·
Telephone companies
·
Schools, Colleges,
Universities and adult learning centres along with any educational supporting
institutions such as the student loans company
The
information can only be obtained from any of these organisations if you have
reasonable suspicions that the person that you are making the enquiry, is
involved in defrauding benefits.
The
Bill ensures that the electronic records are included in the request for
general data matching exercises. This
means obtaining information from employers en masse to be data matched against
records. However, it should be
noted that in order to do this general matching, reference must be to the
Human Rights Act. The test of
reasonableness needs to be applied to ensure that you have reasonable grounds
for the exercise. This is essential in a democratic society because the
risk of collateral intrusion is high.
The
Bill also ensures that information can be exchanged with social security
organisations in other countries but consideration needs to be made to
principal 8of the Data Protection Act 1998.
The
Bill establishes the principal that benefit cannot be continued to be paid to
persistent offenders. Anyone who
is claiming benefits and is prosecuted on two or more separate occasions will
have their benefit reduced
[1]
. It should be noted
that this sanction becomes complicated to apply where there is more than one
person involved in the claim as not all of them may have been involved in the
fraudulent activity.
The
social security administration (fraud) act 1997 introduced penalties as an
alternative to prosecution. In
order to apply an administrative penalty you had to have a case where if the
penalty was not taken up by the accused you would still proceed with a
prosecution. This Bill extends
the penalty so that it can now be applied to collusive employers.
The
Bill also set into place legislation to ensure penalties can be applied across
benefits administered by different administrating bodies.
In other words a Local Authority can apply an income support penalty.
The
offences have been given more clarity.
In section 111a, the sectins on change in circumstances have been
changed to highlight the mens rea and actus reas.
However, a reasonable time period must be examined before an offence
has been committed. Section 112
is also clearer and time periods are defined to aid questioning of the
offence.
In conclusion this Bill is very welcome as it corrects many difficulties and clarifies some situations. The aspect that will continue to generate debate will be its interaction with the Human Rights Act. However in my opinion the HRA is often misinterpreted.with groups and organisations over-reacting to its implications and even in some cases under-reacting.
The
watchword on investigating benefit fraud is still do the paperwork, do not
jump to conclusions and in the words of WS Gilbert "Let the punishment
fit the crime."