The Scottish Redress for Survivors Bill

On 13 August the Redress for Survivors (Historical Child Abuse in Care)(Scotland) Bill was published. This followed on from the consultation process and ‘conversation’ which took place as to the form and nature of the Redress Scheme intended to help survivors in Scotland. Broadly speaking, it is formulated as expected from the Consultation process.

The scope of the Bill

It is clear from the title, and indeed throughout the Bill, that the redress scheme is limited in its extent. It does not, for example, provide a universal redress for any survivor of child abuse. Accordingly, for some survivors they will still have to pursue claims in the usual way by intimating and potentially litigating (albeit with the extension of prescription to 26 September 1964 in Scotland due to the Limitation (Childhood Abuse)(Scotland) Act 2017, as discussed in our previous article).

The Scheme will provide a redress payment to a child who was abused (including sexual, physical or emotional abuse or by neglect) whilst in a “relevant care” setting in Scotland. “Relevant care” will include residential institutions like children’s homes, penal institutions, residential care facilities, school related accommodation and secure accommodation. There are various limits to the proposed scheme, a key one being that the public authority or voluntary organisation had to be effectively raising the child. There may be arguments around whether the particular arrangement in place for a survivor falls within the provisions and there may be challenges as to the range of the scheme.

The scheme shall extend to allow next of kin to make claims where the survivor who was abused before 1 December 2004 dies on or after 17 November 2016. However, the Bill also allows Scottish Ministers to make specified circumstances of abuse ineligible for the Scheme. It can be foreseen that to exercise this power to exclude certain circumstances would be controversial.

The payment

The Bill allows survivors to claim a fixed rate payment of £10,000 and to add to this an individually assessed payment determined at one of three bands (£10,000, £30,000 or £70,000) depending on circumstances. There will be a five year period in which to make an application. These applications will be considered by a panel appointed by Redress Scotland (the nature of the panel shall vary depending on the payments applied for).

If the survivor was previously paid compensation or payment under another statutory scheme (for example the Advance Payment Scheme currently in force) then this shall be deducted from the redress payment.

The Bill provides for a right of review of the determination by the panel.

The contributors

One of the key questions during the development of the Bill was how and from whom the redress payments would be financed. The Bill states that a list of public authorities, voluntary organisations and “other persons (other than individuals)” who “in the opinion of the Ministers” are making a fair and meaningful financial contribution towards funding the redress payment will be kept. This is going to be a published document.

This will mean that those contributing will be publically known. However, the question of whether a contribution is “fair and meaningful” will be a difficult issue to assess. Where charities are concerned, the legislation provides that contributions shall be deemed as being in furtherance of the charity’s purposes (presumable to avoid charities having regulatory issues with regards to making payments).

The waiver and other arrangements

As discussed extensively during the consultation process, in return for receiving a redress payment, the survivor will provide a waiver which agrees to abandon any ongoing civil proceedings and waive rights to raise proceedings. The waiver will protect those who are scheme contributors, hence why getting the agreement from the Ministers that they are making a fair and meaningful contribution will be so important.

The Bill also addresses a number of specific circumstances where special provisions arise. For example, the legislation allows arrangements to be made in relation to payments to those considered vulnerable. It also allows for discretion to a panel where the panel feels that it is not in the public interest that a survivor convicted of a serious crime should receive a payment.

Support for survivors

The Bill allows the Scottish Ministers to make arrangements to provide other support to survivors, whether emotional, psychological or practical support, to allow them to make an application. The legislation also requires separate regulations to be brought in regarding reimbursement of the costs associated with bringing an application. This will include the payment of reasonable legal fees incurred, as determined by Redress Scotland.

It is to be hoped that legal fees will be tightly controlled.

Comment

The Bill intends to address the legacy of abuse in residential care settings. It is not dealing with all historic abuse wherever it occurred. As with any scheme there will be challenges around the extent of application.

There will also be challenges around the costs of running the scheme. This will include the question of whether an organisation is making a fair and reasonable contribution.

Controlling third party legal spend to ensure that money is rightly directed to survivors of abuse can be challenging and it will be interesting to see how Redress Scotland approach this.

The IICSA in England and Wales heard evidence, as part of the reparations strand of the Inquiry, that a less adversarial approach to abuse claims should be encouraged. Although guidance from IICSA has not yet been provided, the Redress Scheme in Scotland is likely to support the narrative for change in England and Wales with emphasis focused on ADR.