Hi,

I have been contacted by a fraud investigation officer from a local authority. The officer has advised me that they are currently investigate a former resident of the housing association who I work for.

The fraud investigation officer has written to me asking for details of the benefit advice I gave this person whilst they were living in our property. I've been thinking about this and a couple of thoughts have occured to me that I would appreciate views or thoughts on:

1. The work I do with residents is confidential and I do not disclose things to a third party without their permission. By giving this information to the local authority, I would obviously be breaking the confidence of the person.

2. I offer benefit advice and information to our residents based on what information they give me about their current circumstances. If a resident give me the wrong information (either intentionally or by accident) this means that I will potentially be giving them the wrong advice and information which could potentially result in the resident making a fraudulent claim.

The local authority, in their letter to me have quoted the following in their letter. It reads "This information is requested for the detection and/or prevention of an offence under the Social Security Administration Act 1992. Therefore, you will not be in breach of the Data Protection Act 1998 by providing this information, in accordance with Section 29(3) of the Act"

I feel slightly uncomfortable giving the details of my conversations and meetings with the resident because of the confidentially aspect. However, I also don't want to be implicated in the investigation in any way.

Has anyone else been in this situation and if so, any advice or comments would be greatly appreciated.

Cheers

John

Firstly, the LA is correct that the DPA is disapplied (s.35(2) may also disapply the DPA). And, although confidential, there is no legal privilege unless you are a qualified lawyer AND advising in that capacity.

On that basis, my (tentative) advice would be to write back with a generalised response that any advice / information provided is based on the info / evidence given by the person seeking that advice. I would also be tempted to put, very politely, that unless / until a court order (or subpoena) is provided, no further details will be provided.

In the meantime, I think you should seek FORMAL legal advice from your employer and, based on personal experience, make sure you don't leave yourself open personally (i.e. is your employer likely to hang you out to dry if it suits?). At all times, in all manner of correspondence, make it clear you were/are following employer's procedures and with the authority of your employer.

Thu 09-Jul-09 10:31 AM by stainsby

This is always difficult, and I have had clients who quite frankly were asking for help with fraudulent claims. I simply told them that their actions would be fraudulent and that if they wished to continue in that way I could not have them as clients.

On the other hand, any advice I give is in the same spirit as the advice a solicitor would give and I cannot disclose the details to the other party, even if its the LA fraud department. (There is still a right to silence for defendants in criminal proceedings)

I would write to the LA and ask that they subpoena me

Thanks for the comments.

I too have had clients who were blatently asking for help making fraudulent claims and in cases like that I have always advised them that any claims would be fraudulent and I would no longer be able to advise and assist them.

With this particular client, I had no ideas or suspicions that the information he was giving me was incorrect so I advising him based on what he was telling me, which is something we all, as advisers, do.

Luckily I do keep good case notes so the evidence is there if neccessary.

Whatever the Data Protection issues, you still have a duty of confidentiality to your client and as a matter of principle, we need to resist the forcible intrusions by state officials into legitimate welfare rights advice.

Sorry, but we are supposed to live in a democracy and pluralism and advocacy are key elements in the rule of law which underpin any democracy - ask the Iranians what happens when state officials ignore the rule of law and do what they want.

I think you should write and ask the Investigator, precisely which legislation is being relied on to seek information from a registered housing association. I can't see that RHAs or even landlords) are listed in section 109B SS Admin Act 1992 which is the legislation which specifies who can be required to provide information. If the client in question is also an employee of your association, then they would have powers to require you to disclose information, but I assume that this is not the case.

In the absence of more details, I'm not sure they have the power to compel you to disclose.

You should also ask which of the grounds they are using under s 109A (2) of the Act.

By all means, check this with your own legal advisers, but it's easy to assume that fraud investigators can do pretty much what they want.

Thu 09-Jul-09 05:39 PM by Kevin D

While acknowledging the various comments on confidentiality, I reiterate that "legal privilege" only applies to lawyers acting in that capacity. No one else, in English / Welsh law, can rely on "legal privilege".

For that reason, the only "defence" is to put the onus on the person(s) seeking information to obtain Court orders / subpoenas etc.

I never claimed to have legal privilege, but only said that I work in the sme spirit as would a solicitor, although I do agree with Neil that I would not some under S109B of the Administration Act in my role.

RHA's do not feature in S109B either, but even if they did, my contract allows me a measure of independence and so there would be a distinction between me as an individual and my employer as a corporate body ( a legal person)

Kevin does bring another problem into focus in that most claimants are represented by lay advisers who to not have the protection of legal privilege and funding for social security work by the LSC does not exentd to representation at even lower Tribunal level by fully fledged legal advisers. It does not even extend to representation by paralegals.