Financial redress for survivors of historical child abuse
A new independent organisation, Redress Scotland, will be created to assess applications and make decisions
Scottish Government introduces Bill to establish redress scheme
As outlined in our March 2020 update the Scottish Government has committed to a statutory financial redress scheme for survivors of in-care child abuse. To this end an Advanced Payment Scheme was created to deal with the claims of those terminally ill or over the age of 70. Now, after a consultation process, the Scottish Government has produced a bill for a fully-fledged scheme in the form of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.
Here are some of the key features:
A new independent organisation, Redress Scotland, will be created to assess applications and make decisions as to redress. Redress Scotland will also review the claims of those dissatisfied with their awards. All claims must be presented within five years of the establishment of Redress Scotland. The parliamentary session ends in March 2021 and the Government’s goal is to pass the bill into law prior to the end of the session and have the necessary infrastructure in place as soon as possible after that.
The bill recognises that financial redress is preferable as a tangible recognition of harm suffered by abuse survivors. However, the scheme will also offer non-financial elements of redress such as acknowledgement, apology and therapeutic support.
The scheme will apply where abuse took place prior to 1 December 2004, in relevant care settings in Scotland, and where the applicant was under 18 years of age at the time. The scheme is for those who were abused in a “relevant care setting” meaning those who were “in care” (for example those in children’s homes and foster care) or were subject to some form of intervention by a body exercising a public function (for example those placed in approved schools where the local authority met the cost).
Those who have previously made claims through the Criminal Injuries Compensation Scheme, civil courts, the Advanced Redress Scheme or received a settlement payment can also make a claim through the scheme but previously awarded sums will be deducted from their award.
Generally, those with criminal convictions can apply under the scheme. However, Redress Scotland can consider whether making a redress payment is in the public interest for those convicted of particularly serious offences which have led to a sentence of imprisonment of five years or more.
The scheme will also be open to next of kin of those who have passed away on or after 17 November 2017. However, the financial redress available for these cases will be limited to £10,000.
Payments under the scheme
Payments under the scheme will generally take two forms. Survivors can apply for a fixed sum of £10,000 or opt for individual assessments of £20,000, £40,000 or £80,000. Those seeking an individual assessment will have their claims examined in more detail.
Those who have been awarded the £10,000 fixed sum may apply for an individually assessed award thereafter. It can be presumed that many applicants will seek to secure the fixed sum before considering an individual assessment.
Costs in connection with applications and legal costs
Costs, expenses and legal costs that have been reasonably incurred will also be paid as part of the scheme. However, there is no detail as yet as to what the “relevant maximum” will be in respect of reasonably incurred legal costs.
Financial contributions by care providers
Ultimately the scheme will be funded by the Scottish Government but “fair and meaningful contributions” will be sought from organisations that, at the relevant time, were involved in care of the survivors directly or were otherwise involved in the decision-making processes and arrangements by which the child came to be in care.
The incentive for organisations to make contributions to the scheme is that successful applicants will be asked to sign a waiver to preclude any subsequent legal proceedings through the courts. As outlined in our previous update the courts have made substantial awards in abuse cases. Furthermore, the scheme does not preclude survivors from taking further legal action against organisations that do not make contributions to the scheme.
Setting the potential level of compensation is a careful balancing act for the Government. The amounts available through the scheme still appear to be somewhat lower than the courts can award on occasion but are set at a level that appears to acknowledge the seriousness of abuse in care settings. Furthermore, the more straightforward nature of seeking redress via Redress Scotland and the accompanying waiver system (and presumably lower legal costs) should be incentives to both survivors and care providers to use the scheme rather than resorting to the courts.