Hampshire Fire and Rescue Authority

Personnel Committee

Item

3 April 2002

Investigation Services

Report of the Chief Fire Officer

Contact:

John Bonney Deputy Chief Fire Officer Tel: 023 8064 4000 Ext 207

1

Introduction

1.1

To date, the Authority has not used, nor does it have a policy for using, private investigators where fraudulent claims or activities are suspected. This report explains why use of private investigators might be appropriate in certain circumstances in the context of a broad risk management strategy. The human rights implications are examined and a draft protocol for employing private investigators is also included.

2

Background

2.1

It is important that the Authority can adequately protect itself against fraudulent claims - whether these relate to general litigation, personal injury, sickness absence or insurance matters. The Authority does not have a policy to use private investigation services to gather surveillance or other information that might better inform or challenge the veracity of claim. Whilst the Authority's insurers may chose to employ such services to protect their own interests, we have no direct control over such use, nor how any information will be used in decision-making processes.

2.2

Use within public authorities seems patchy, but where organisations do use private investigators they have very clear stipulations and parameters for the use of the services. It is also clear that although the service is used infrequently it has a considerable deterrent effect on potentially fraudulent or vexatious claims. The use of investigation services alone is not a solution to increasing litigation, but it can make a significant contribution to a wider risk management strategy.

2.3

As previously reported (meeting held 6 February 2002) the Authority now commissions specialist legal advice in certain circumstances. In addition, the Service's recently formed Professional Standards Team provides an increasing level of in-house expertise. This year the Team will be delivering training to first-line managers covering the handling of complaints, grievances and disciplinary matters. The aim is to prevent costly and damaging formal legal action by improving the day to day management of such issues.

2.4

In a limited number of cases there may be evidence to suggest that a person may be defrauding the Authority. Through surveillance or external investigation, sufficient evidence may be uncovered of a criminal nature either to pass the matter to the police or, at the very least, robustly reject a claim against the Authority. In these situations it would not be appropriate to use the Service's in-house Team.

2.5

Following enquiries of a number of public and private sector organisations (including fire services), and with assistance from Hampshire County Council's legal advisors, a draft protocol has been drawn up for the engagement of private investigators and is attached as Appendix 1. This has been consulted upon with the representative bodies. As previously stated, experience has shown that such services are employed only infrequently, but for very good reason. When they are required, it may be crucial to act very quickly. It is therefore recommended that approval to engage such services be delegated to the Chief Fire Officer in consultation with the Clerk. Any such use would be reported to the Authority for information.

3

Financial Implications

3.1

The use of such services will be infrequent; and, at this stage, it is difficult to provide a firm estimate of likely costs - especially as the resources engaged for individual cases will vary. The costs of each case will be presented to the Authority and, during the first year, these will be contained within existing budgets (through virement).

4

European Convention on Human Rights and the Human Rights Act 1998

4.1

Although the impact of human rights legislation, privacy laws and new codes for whistle-blowers highlights the need for an open and balanced policy, the use of the type of investigation services highlighted in this report is not precluded. An organisation is entitled and has a duty to protect itself from malicious or fraudulent claims, or to satisfy itself that the value of claims can be justified. Appendix 2 examines the issue in more detail.

4.2

On the basis of this examination, it is recommended that the proposal within this report is compatible with the provisions of the European Convention on Human Rights and the Human Rights Act 1998.

Recommendations

1

That the Authority adopts the protocol set out in Appendix 1 of this report on the use of private investigation services.

2

That the Chief Fire Officer, in consultation with the Clerk, be authorised to engage private investigation services where it is considered that it would be in the Authority's best legal and financial interests.

3

That the use and cost of such services be reported for information to the Authority.

Section 100D - Local Government Act 1972 - background papers

The following documents disclose the facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of the report.

None

NB The list excludes:

1 Published works

2 Documents that disclose exempt or confidential information as defined in the Act

File name - HFRA Personnel 3 April 01 - Investigation Services

1.

This note sets out the criteria for the use of, and procedures to be followed for instructing, private investigators to assist in the carrying out of an investigation, undertaken by the Service's Investigating Officer on behalf of the Authority.

2.

Private investigators shall not be instructed for any purpose except in respect of the matters listed in paragraph 3 below.

3.

The use of private investigators shall be limited to cases involving authority employees, or ex-employees, where:-

( i)

They are absent from work on account of sickness and/or being medically retired and information is brought to the authority's attention as to their undertaking secondary employment (in contravention of their conditions of service); or

( ii)

There are management concerns supported by the Occupational Health Physician that the veracity of the individual's illness is under suspicion; or

(iii)

The Service Investigating Officer has caused the matter to be investigated under Regulation 5 of the Fire Services (discipline) Regulations 1985 in respect of any report or allegation relating to a uniformed member of the Service undertaking secondary employment whilst absent from work on account of sickness or in respect of any offence listed in the Code of Discipline which, if substantiated, could lead to a serious loss of public confidence in the Service.

4.

Private investigators may only be appointed where the matter cannot properly be investigated internally by the Authority itself or where it could be so investigated, but would be detrimental to the protection of the Authority's interests or the maintenance of good discipline.

5.

In making any decision under the procedures set out in this note, due regard shall, at all times, be had to financial regulations and in relation to uniformed staff, to the responsibilities of the Service Investigating Officer under the terms of the 1985 Regulations. If at any time during any investigation conducted by the Service Investigating Officer or the Personnel Manager delete, theft, fraud, bribery, corruption or other financial irregularity is discovered which involves the authority's interests, they shall at once notify the Director of Corporate Services.

6.

In instructing any private investigator due regard shall, at all time, be had to the code of practice governing the arrangements to be made by the Authority for the employment of consultants and professional services.

7.

At the conclusion of any investigation undertaken by a private investigator they shall be required to submit a written report to the named officer who commissioned the work.

1.

The use of private investigators by a public authority has the potential to breach Article 8 of the Human Rights Act 1998.

2.

Article 8 provides for a right to respect for a person's private and family life, home and correspondence. The concept of `private life' is broad. In general it means that they have the right to live his or her own life with such personal privacy as is reasonable in a democratic society, taking into account the rights and freedoms of others. The right can also include the right to have information about yourself, such as official records, photographs, letters, diaries and medical information, kept private and confidential.

Article 8 places limits on the extent to which a public authority can do things which invade a person's privacy.

3.

A public authority can interfere with a person's 'Article 8' rights in some circumstances. A clear indication of the type of circumstances is given in the Regulation of Investigatory Powers Act 2000. This act deals, amongst other things, with authorisations for directed surveillance (e.g., `phone tapping'). However, in Section 28(3) it specifies the grounds necessary to obtain authorisation under the Act and these are appropriate for consideration in terms of interference with Article 8 rights generally. The grounds are:

a)

in the interests of national security;

b)

for the purpose of preventing or detecting crime or of preventing disorder;

c)

in the interests of the economic well-being of the United Kingdom;

d)

in the interests of public safety;

e)

for the purpose of protecting public health;

f)

for the purpose of assessing or collecting any tax, duty, levy or other contribution or charge payable to a government department.

4.

Before taking a decision as to whether to use a private investigator, the Authority will have to weigh all the competing interests carefully so as justify any interference with the Article 8 right. Rights under Article 8 may need to be balanced against other rights.

The decision as to whether to use a private investigator should be no different to decisions on any other issues made by public authorities. There are four main grounds where the courts can supervise and control decisions of public authorities:

a)

illegally or ultra vires decisions made beyond the power of the Authority;

b)

irrationality or unreasonableness in decisions;

c)

procedural impropriety or breach of rules of natural justice;

d)

decisions which are incompatible with the Human Rights Act 1998.

5.

The courts, when considering whether a decision by a public body is reasonable, will look at how the organisation making the decision has:

a)

taken into account matters they ought not to have taken into account; or

b)

refused or neglected to take into account matters which it ought to take into account, or

c)

made a decision that is so unreasonable that no reasonable organisation would have come to it;

d)

complied with its own policies.

6.

The consideration of this rule on unreasonableness is supplemented under the Human Rights Act by the key concept of proportionality. What this means is that when considering any possible interference with one of the Article rights the court will look at whether the action taken by the public body was proportional to the aim it was seeking to achieve.

7.

The questions that we should consider when reaching a decision to use private investigators (possibly in contravention of Article 8) include:

a)

Is it legal? Will we be violating the civil or criminal law, policy or be ultra vires?

b)

Is it balanced? Is it fair to all concerned in the short and long term? Does it promote a win-win situation?

c)

How will it make us feel about ourselves? Will it make us feel proud, will it make us feel good if the decision were published in a newspaper?

d)

Is this a decision that touches upon the Human Rights Act? Is that interference legitimate?

e)

If it affects someone's Human Rights, what are the grounds for interfering with those rights, (eg. in the interests of public safety, for the prevention of disorder or crime or for the protection of rights and freedoms of others)?

f)

Other relevant considerations: Is the person making a claim where there is a good reason to believe it is fraudulent? Is it about safeguarding public expenditure.

8.

Once all the facts have been obtained and the issues identified, the person making the decision has to balance the rights of the individual against the grounds for interference. They should ensure that the action taken is proportional to the aim that it is seeking to achieve.