Commentary on Provisions Part 7 – Information for Audit Section 18: Information for audit of social security system
85.Currently the Scottish Ministers, through Social Security Scotland, can only request that individuals provide information to them for the specific purpose of determining entitlement to assistance. Section 18 of the Act amends the 2018 Act to give Ministers powers to require individuals to provide information in order to audit the social security system as a whole.
86.Where an individual is entitled to social security assistance under the 2018 Act, inserted section 87B gives power to the Scottish Ministers to request that the individual provides information in relation to their entitlement, by a set deadline. Such a request may only be made for the purpose of auditing the monetary value of error and fraud in the Scottish social security system, and for connected activities. The subsequent use of the information is limited to the same purposes.
87.Under section 87B(4), the response to a request under subsection (1) may be required to take the form of an interview with the individual in person; a telephone call or a video call; a written response (in circumstances prescribed by Ministers in regulations); or such other form of response as Ministers set out in regulations.
88.Section 87B(5) gives a further regulation-making power to Ministers to prescribe categories of individuals who cannot be requested to provide information under subsection (1), for example for reasons of inherent vulnerability. Section 87B(6) requires Ministers to consult publicly on these regulations before making them.
89.Section 87B(7) gives Ministers the power to suspend assistance to an individual who has failed to meet the deadline to provide information under this section. Suspension must be in accordance with the safeguards set out in schedule 11 of the 2018 Act: therefore Ministers must have regard to the financial circumstances of the individual first; Ministers must give due notice to the individual of the decision to suspend their assistance, of the reasons for it, and of any steps which the individual can take in order for Ministers to consider ending the suspension; and the individual will also have the right to require Ministers to review their decision.
90.Under section 87B(8), where Ministers suspend assistance to an individual, they must at the same time make a further request under subsection (1) that the individual provide them with the requested information, by a further deadline.
91.Section 87B(9) clarifies that subsections (7) and (8) may apply more than once in respect of the same individual: therefore multiple suspensions would be possible in theory. Ministers also have the power under the 2018 Act to terminate the assistance given to an individual by making a determination without application under section 52.
92.Inserted section 87C provides that an individual who has received a request for information under section 87B(1) may ask Ministers to withdraw the request (for instance due to bereavement, illness or another personal crisis that means they are unable to comply with the request). This must occur before a deadline to be set out in regulations. Ministers must then decide by a deadline also to be set out in regulations if there is a good reason for granting withdrawal, and their decision on the matter is final. An individual must be given notice of the decision and the reasons for it (and that it is final). As with other sections of the 2018 Act, the individual must also be given a proper record of the decision.
93.Where an individual is judged to have a good reason for requesting it, Ministers must withdraw the request for information that was made to the individual under section 87B(1).
94.Inserted section 87D allows an individual who has been given a request for information under section 87B to have a third-party supporter present during any interview, call or other form of provision of a response: Ministers must comply with an individual’s wish to have a supporter unless their wish is unreasonable. Whether someone’s wishes are unreasonable will depend on the facts and circumstances of the particular case, but it may, for example, be considered unreasonable to someone to continue to attend as a supporter if they are behaving aggressively. The role of a supporter is simply to support the individual during their response to the information request, and to make representations on their behalf.
95.Inserted section 87E gives disabled individuals a right of independent advocacy in connection with their engagement with the process for a request for information under section 87B (in the same way as section 10 of the 2018 Act gives such a right in connection with the determination of an individual’s entitlement to assistance).