Section 4: Offences - Top up assistance
45.Sections 71 to 73 of the 2018 Act contain statutory offences in relation to social security assistance given under Part 2 of that Act. These are:
offence of trying to obtain assistance by deceit;
offence of failing to notify Social Security Scotland of a change of circumstances relevant to their own receipt of benefit; and
offence of causing a failure to notify Social Security Scotland of a change of circumstances relevant to another individual’s receipt of benefit
46.Section 75 of the 2018 Act allows the Scottish Ministers, by regulations, to make provision about the investigation of these offences. Section 76 places a duty upon the Scottish Ministers to publish a code of practice on investigations carried out by virtue of section 75.
47.The offences outlined in sections 71 to 73 of the 2018 Act are not applicable to top-up assistance given in accordance with regulations made under section 79 of that Act. Similarly, the power to make provision about investigations in regulations under section 75 of the 2018 Act does not apply to investigation of offences in connection with top-up assistance.
48.Section 4 of the Act modifies the 2018 Act to make provision about offences in connection with top-up assistance.
49.Section 4(2) modifies section 79(2) of the 2018 Act to insert a new paragraph (g) which expressly provides that the Scottish Ministers’ power under section 79(1), to make provision by regulations for top-up assistance, includes the power to make provision about offences.
50.Section 4(3) inserts a new subsection (4) into section 80 of the 2018 Act, which sets out restrictions on the powers in section 79. This new subsection specifies the maximum penalties that can be provided for in regulations under section 79 in respect of an offence under those regulations. These are: on summary conviction, imprisonment for a term not exceeding 12 months, a fine not exceeding the statutory maximum or both; and, on conviction on indictment, imprisonment for a term not exceeding five years, a fine or both.
51.Section 4(4) inserts a new section 80A into the 2018 Act which provides a new default position in respect of offences in connection with top-up assistance. That is, that the offences set out in sections 71 to 73 of that Act apply in connection with any form of ‘top-up’ assistance created under section 79, just as they also apply in connection with the various forms of assistance under Part 2 of that Act (section 80A(1)). This is subject to any contrary provision in regulations for specific forms of ‘top-up’ assistance that may be made under new section 79(2)(g) (section 80A(2)).
52.New section 80A(3) makes various modifications to sections 71 to 73 of the 2018 Act where they apply by virtue of section 80A(1), so that they operate effectively in the context of top-up assistance. In particular, the modifications make clear that:
“assistance” refers to financial assistance provided for under ‘top-up’ regulations,
a reference to giving notice in accordance with section 56 of the 2018 Act is referring to giving notice in accordance with regulations about top-up assistance, and
subsections 72(3) and 73(3) (which relate to how individuals inform Scottish Ministers of any relevant changes of circumstances) do not apply unless, in accordance with top-up assistance regulations, the Scottish Ministers have informed the person about the way in which notification of a change of circumstances is to be given.
53.New section 80A(4) makes provision to put beyond doubt the application of section 74 of the 2018 Act to both the commission of offences under sections 71 to 73 of that Act as applied by new section 80A(1), and the commission of offences created under the new power in section 79(2)(g). Section 74 makes provision about individual culpability where an offence under the 2018 Act or any regulations made under it is committed by an organisation. New section 80A(4) therefore provides, for the avoidance of any doubt, that the reference in section 74 to an offence under the Act or any regulations made under it includes any offence under any of sections 71 to 73 of the 2018 Act as applied by section 80A, and to any offence under the top-up assistance regulations.
54.New section 80A(5) specifies that ‘top-up assistance regulations’ refers to regulations made under section 79 of the 2018 Act.
