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What gives cause for concern is that the whole argument turns upon whether it is reasonable to carry out the investigation. The initiative of the matter comes from the fraud investigator and then goes up to the fraud officer. The amendment seeks to establish at what level these decisions, which clearly involve an invasion of privacy and raise issues on human rights and so on, are likely to be carried out.
One of the other examples given is that the information is given on the basis of an anonymous tip-off. Perhaps the Minister can comment on that. If the tip-off received is anonymous rather than backed up by any further indication as to the source of the allegation or what has prompted it, do the Government regard that as a reasonable basis for carrying out an investigation. There may be all kinds of reasons why individuals make anonymous tip-offs; for example, they may not like the person.
Baroness Hollis of Heigham: My Lords, I do not see an investigating officer. I have "fraud specialist", I have "decision maker", who actually makes the benefit decision, and the "authorised officer". Where is the investigating officer?
Lord Higgins: My Lords, doing this on one's feet is not perhaps the easiest thing to do. I have a list. I have authorised officers, fraud investigators, decision makers, who, as the Minister has said, are related to the decision on the actual benefit question. I have a responsible officer who turned up at some point and an accredited fraud officer.
Lord Higgins: My Lords, it would have been easier perhaps in Committee to have found one, but then we did not have the draft code of practice. He is a fraud investigator. However, I am not clear whether sufficient protection is being given to ensure that the investigation is reasonable.
What we are really concerned about here is whether, given that there is apparently to be no external approval as to whether or not an inquiry is justified, the level at which these inquiries are carried out is appropriate. Therefore, perhaps, given the various categories which we have now summarised, the Minister could tell us at what level in the Civil Service these particular offices will be filled. I beg to move.
Earl Russell: My Lords, this provides me with my first opportunity to thank the Minister for providing us with the draft code of practice. That was extremely helpful. It is an extremely well-drafted code. It shows all the typical excellence of the Department of Social Security at putting itself under restraint coming from its own good judgment, while at the same time maintaining a vehement objection to any restraint placed upon it from any other quarter.
Lord Higgins: My Lords, will the noble Earl allow me to respond on that point? In fact he will find that "fraud investigators" appears in paragraph 3.2, but that apparently has not been drawn to the attention of the noble Baroness. So the drafting is somewhat strange.
I return to the point. As a member of an institution, I sympathise with the objection to restraint from an outside quarter. On the other hand, most of us are subject to restraint and probably have to put up with it here and there. But although the draft code of practice tries to diminish the misgivings considerably, I agree with the noble Lord, Lord Higgins, that misgivings still remain. What, therefore, is the best thing to do is not necessarily a simple question.
Incidentally, I share the noble Lord's misgivings on the subject of anonymous tip-offs. They have been relied on in law enforcement in a variety of contexts at least since the Heresy Act of 1401, but they have led to a considerable number of miscarriages of justice. Having said that, I might remind the noble Lord, Lord Higgins, that the person who put anonymous tip-offs centre stage when he was Secretary of State was none other than Mr Peter Lilley. I expressed misgivings about it at the time. I express misgivings about it now. Those are no party misgivings; they are simply a matter of concern for justice.
However, I come back to the point that I made at Second Reading about proportion between legitimate objectives. The Minister was not entirely pleased with the point I made. If I remember her words right, she said that the proportions did not always appear to her as they appeared to me. Fair enough, I do not expect it. But on this occasion perhaps the point about proportion may tell in the Minister's favour. It is often essential for the prosecution of fraud that the fraudster or potential suspect fraudster should not know that he is being investigated until fairly late on in the proceedings. Fraudsters have a capacity sometimes,
It may be in terms of priority that the need for justice and the need for control justifies the use of a superior officer in the way that the amendment of the noble Lord, Lord Higgins, demands. I am capable of being persuaded of that point. However, I must say that the noble Lord has not yet so persuaded me.
Baroness Hollis of Heigham: My Lords, perhaps I may respond first to the point about the anonymous tip-offs. I understand noble Lords' concerns. I was asked whether anonymous tip-offs alone would be reasonable grounds for an investigation. The answer is no.
An example may be where someone is understood to be a lone parent but a tip-off says that she actually has a live-in partner. That may be the kind of tip-off that one gets from a neighbour when they do not have a good relationship. Tip-offs of that kind would usually be raised with the claimant. Occasionally, very detailed tip-offs might be regarded as reasonable grounds, but in all cases they would be checked against our records on the claimant.
As I have said, the general presumption would be to check first with the claimant. Only detailed and serious allegations might trigger the need to go under cover. I hope that this gives the noble Lord some reassurance on that point.
Secondly, the noble Lord asked about the relationship between the fraud specialist and the authorised official. At present, fraud specialists carry out investigations on the ground. Something in the order of half a million such investigations are carried out each year using current powers. Only a small number of authorised officials will be attached to each of the 13 units, usually between 10 and 50 officers. To use the additional, sensitive powers conferred by the Act, the fraud investigator would have to approach the authorised official in order that that official could make the inquiries on behalf of the fraud investigator. Given that many people are in the field carrying out work, we would not want such information "floating around the system", to borrow the phrase used by the noble Lord, Lord Higgins, when we discussed this matter in Committee. Sensitive inquiries utilising the new powers contained in the Act must be carried out by the authorised official, who, in turn, must have "reasonable grounds" to investigate, which in turn must be clarified with the fraud investigator. I hope that that has clarified our slightly teasing exchange on this matter.
The third question raised by the noble Lord concerned whether authorised officials will be sufficiently senior to have such powers entrusted to them. In Committee I said that such officials will be appointed at executive officer grade, grade B3 or its equivalent in a local authority. They will be authorised to act on behalf of the Secretary of State only once they have been given full professional training. I could give
The grade is a management grade equivalent to that of a flight lieutenant in the Royal Air Force or a second lieutenant in the Army. It would rank between a police sergeant and a police inspector, who similarly carry high levels of responsibility. The grade is the same as that required for officers who currently use departmental powers to inspect the records of employers about their employees. Most noble Lords would regard that work as equally sensitive. I have already indicated that management controls will be put in place to be implemented by sector managers.
Finally, if an individual or an information provider has a complaint or question about the manner in which these powers have been applied by the authorised official, they may direct their inquiry to the senior officer in the central intelligence unit or the investigation manager in the case of local authorities. The address will be included in all requests for information.
I have sought to establish that, first, anonymous tip-offs would not, as they stand, provide reasonable grounds for investigation. They would need to be checked with the claimant, although occasionally exceptions may be made. Secondly, the fraud specialist will carry out the day-to-day work on the ground of checking the integrity of benefits but the exercise of powers as regards data information conferred by the Bill must be handed to an authorised official who must demonstrate reasonable grounds so to act. Such authorised officials will be relatively senior members of staff, in the top quarter in terms of hierarchy of staff in the Benefits Agency. Thirdly, if a complaint is received about the inappropriate use of these powers, relevant information will be made widely available by the authorised officials.
However, we have made considerable progress and the code of practice represents a substantial step forward. But, as the noble Earl, Lord Russell, pointed out, ultimately this is a matter of balance. We need to weigh the degree of power conferred on officials on the one hand and the lack of external supervision on the other. Nonetheless, I am grateful to the noble Baroness for her reassurances as regards anonymous tip-offs.
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