IN 2019, the UK Department for Work and Pensions (DWP) published their two-part staff guide on conducting fraud investigations.
Privacy International (a UK-registered charity which fights to protect and defend privacy across the world) went through the 995 pages to understand how those investigations happen and how the DWP is surveilling benefits claimants suspected of fraud.
Key findings are:
- The DWP is conducting physical surveillance of benefits claimants.
- Private companies (including airlines, PayPal, supermarkets, bingo clubs and others) hand over data on benefits claimants to them.
- The DWP works with tabloids to build a narrative that they clamp down on so-called ‘benefits cheats’.
Privacy International (PI) states:
‘Anyone who has flipped through a tabloid will have seen articles exposing the so-called “benefits-cheats”, people who allegedly trick the benefits systems for their own profit and spend lavish holidays off-the-back of tax-payers …
‘But how do those investigations take place and how do they end up in the hands of tabloid journalists? This is what the staff guide partly answers by detailing the procedures involved for each step of the investigation process.
‘Yes, the DWP has the capacity to surveil you. And your neighbours. And your loved ones.
‘As detailed in the guide, surveillance by the DWP is regulated by the Regulation of Investigatory Powers Act (RIPA). RIPA gives certain public bodies the right – under limited circumstances – to conduct surveillance activities. While the UK has recently passed new sweeping and dangerous surveillance powers in the form of the Investigatory Powers Act, some powers are still regulated by RIPA.
‘On page 81 of part two of the guide, surveillance is explained as follows: “Surveillance can take many forms which can involve monitoring, listening or following an individual or a group either with or without a technical device and can be overt or covert.”
What surveillance powers does the DWP have?
‘When it comes to surveillance, the DWP is only authorised to conduct “directed surveillance” …
‘In order to carry out directed surveillance, the DWP has designated “surveillance teams”.
‘So, what is “directed surveillance”?
‘RIPA defines surveillance as directed if the following are true: “it is covert, but not intrusive surveillance; it is conducted for the purposes of a specific investigation or operation; and it is likely to result in the obtaining of private information about a person, whether or not specifically identified for the purposes of the investigation or operation”.
‘The DWP sums it up as: “Thus, the planned covert surveillance of a specific person, where not intrusive, would constitute directed surveillance if such surveillance is likely to result in the obtaining of private information about that, or any other person. Surveillance can be physical or electronic e.g. the monitoring of open source material.”
‘To put it in layman’s terms, the DWP is entitled to surveil you in order to obtain information without directly interacting with you – and they have a range of information-gathering methods and sources at their disposal. Buckle up …
How “obtaining evidence” actually happens
‘Directed surveillance is not the only way for the DWP to obtain evidence. The DWP has a series of methods for doing so that all raise risks for the protection of the right to privacy and a potential threat to the dignity of benefits claimants.
‘On page 305 of part one of the guide, they list their “most common methods of obtaining evidence” as follows: “gathering documents, claim papers, handwriting, departmental system prints … interviewing witnesses and obtaining witness statements … interviewing under caution … conducting authorised surveillance … forensic analysis … conducting identification procedures … intelligence gathering”.
‘Below we provide a more detailed explanation of the methods that we found particularly important for the public to be aware.
‘Forensic analysis includes mobile phone examination and computer analysis. On the topic of mobile phones, the guide states: “Mobile phones and tablets are able to store a large amount of information, such as address books, lists of names and numbers, call logs – dialled, missed, received – Short Message Service (SMS) text messages … e-mail messages … web browser data … media, images, video, audio … location data … deleted messages. Note: This list is not exhaustive. Retrievable information can either be stored on the SIM card, internal memory card or on the device itself.
Approaching third parties and justifying
interferences with the right to one’s private
and family life
‘DWP officers are encouraged to approach third parties. On page 316 of part of one, the guide reads: “The Criminal Procedures and Investigation Act (CPIA) Code Of Practice (COP) makes it clear that to establish the facts about an offence you can question any person, whether suspected or not, who you think might have useful information. If a person, including a third party, has useful information you should ask for it.”
‘The guide contains some instructions as to how DWP officers should go about approaching third parties. These instructions include being clear that they are from the DWP if they are questioned, remembering that the person they are investigating may be innocent, not revealing the source of the suspicion, remembering that the third party may be involved in the fraud, amongst others.
‘In its chapter on Third Party Information, the guide also quotes Article 8 of the European Convention on Human Rights, i.e. the right to respect for one’s private and family life. The right is quoted on page 316 and immediately followed by an explanation on the specific circumstances in which the DWP may legitimately interfere with it.
‘ “If DWP are to interfere with this Convention right it must be proven that all other avenues to obtain the evidence have been explored.
‘ “However, in a case, which consists of various circumstantial evidence, it may only be possible to bolster the evidence to the criminal standard by providing evidence from third parties. Additional justification may be on the grounds that it would prevent or detect a crime.”
Covert Human Intelligence Sources: it’s complicated
‘A Covert Human Intelligence Source (CHIS) is defined by the DWP as “a human source that gathers and covertly shares information and carries out relationships with the intention of passing on information to us, unbeknown to the other party to the relationship.”
‘The guide is clear: “The Department for Work and Pensions (DWP) is not included in the list of authorities that can obtain authorisations for CHIS under RIPA (Regulation of Investigatory Powers Act) 2000.”
‘Yet, the guide goes on to state: “As a result, the DWP and its investigators cannot use a CHIS and cannot deal with a CHIS other than that covered in this guidance …”
‘Ever wondered how stories about so-called “benefits cheats” end up in the media? The guide gives you (part of) the answer on page 560 of part one: “DWP aims to achieve as much media coverage as possible for prosecutions brought by the department in order to ensure that the coverage brings maximum deterrent effect. Such media coverage helps to spread the message that benefit fraudsters will be caught and prosecuted before the criminal courts.”
‘The guide then offers a link to a separate guide called “Publicising Investigation Outcomes,” which does not appear to be available to the public.
‘Despite the incredible amount of details that can be found in this two-part guide on investigating benefits fraud, some questions remained however unanswered.
‘As we have highlighted throughout this piece some of the most sensitive information about the nature of the data that could be collected and how it could be used have been removed. We are currently working on trying to obtain such information or at least challenging the grounds for refusing to disclose it.
‘More importantly, what remains a key question is how specific cases are singled out and investigated. In other words, what triggers an investigation? We know that the DWP relies on a hotline, the National Benefit Fraud Hotline, that encourages people to inform on individuals, whom they suspect might be committing fraud.
‘But what else does the DWP rely on? In the age of artificial intelligence and automated decision-making used for distributing welfare – a trend noted by the UN special rapporteur on Extreme Poverty during his visit to the UK – should we assume there is an element of automation in detecting cases of alleged fraud? Those are questions Privacy International hopes to find answers to.
Challenging the narrative
‘The fraud investigation guide reveals some insights into how the department in charge of allocating benefits and pensions has been turned into a surveillance machine, where people are employed to spy on others, where deals are struck with companies and the media to track down individuals and expose their lives in the papers.
‘This comes at a huge cost. In order to justify it to the taxpayers, governments have to promote a narrative that “benefits cheats” are a real threat to our society.
‘This narrative has long been challenged by academics and researchers, as we highlighted in our previous work. We think the real threat to society is this very system where governments can track benefits claimants – people who are often in very vulnerable situations – in the streets, at the gym, at their bingo club or as they travel.
‘We think it is time to challenge the dominant narrative about what the real threats to our society are – arbitrary, invasive and opaque surveillance and data exploitation.’