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Revealing the malingerer - surveillance of claimants not covered by RIPA

14 May 2008

 

We have all heard stories of claimants alleging significant disability, only to be shown on covert video surveillance undertaking strenuous activities or scoring goals for a local football team.  However, legislative provisions potentially restrict the powers of public bodies to protect their financial interests by investigating exaggerating claimants. In particular, the Human Rights Act 1998 and the Regulation of Investigatory Powers Act 2000 (RIPA) have required public bodies to put in place stringent procedures to control operations such as covert surveillance.

 

Concerned public authorities, however, should take some comfort from the much overlooked decision of C –v- The Police (1) and Secretary of State for the Home Department (2).  That was a decision of the Investigatory Powers Tribunal in November 2006. The Investigatory Powers Tribunal attempted to clarify the remit of RIPA and the limits of its application.  In that case, C, a police sergeant who had made a personal injury claim was video taped in public carrying out various strenuous activities.  C complained that the provisions of RIPA had not been followed and that, therefore, the surveillance was unlawful.  The Tribunal considered RIPA and reached the following conclusions:

 

1. The main purpose of RIPA is to ensure that the relevant investigatory powers of public authorities are used lawfully and compatibly with the European Convention on Human Rights
2. Surveillance by public authorities (or anyone else) is not in itself unlawful at common law
3. The act of putting an ex-employee claimant under covert surveillance was not directed surveillance as defined by RIPA
4. The phrase "directed surveillance" relates to the discharge of specific public functions where investigatory powers are given, or to use another phrase, specific core functions
5. There is no reason why the performance of ordinary functions, like the employment of staff, should fall within the RIPA framework
6. The covert surveillance of an ex-employee was not part of the "core function" of the police and therefore was not governed by RIPA

 

Conclusion

 

The Tribunal drew a distinction between the exercise of powers during the course of a specific investigation (eg a police investigation into crime) and the exercise of the ordinary function of the police authority (in this case defending its private law rights).

 

The Tribunal decision was that non core function surveillance would not be governed by the RIPA regime and therefore the stringent RIPA requirements do not have to be followed.  However, public bodies are obliged to observe and apply the Human Rights Act 1998 and in particular, Article 8, the right to respect for private and family life. The Human Rights Act will require consideration as to whether the surveillance is necessary and proportionate to the situation.

 

Good risk management should dictate that local authorities have a robust system for ensuring that surveillance does not breach the Human Rights Act, however, C –v- The Police confirms that the strict requirements under RIPA need not be followed for this type of investigation.

 

RIPA will, however, still apply to specific investigations within the core functions of all public bodies.

 

For more information or advise, please contact

Adrian Shardlow, Partner and head of employers' and public liability.

 

The content of this bulletin is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.