Scottish Government confirms details of Advance Payment Scheme for child abuse in care survivors

The Government has committed to the establishment of the scheme by the end of March 2021.

As reported in our previous update the Scottish government has committed to a statutory scheme for financial redress for survivors of child abuse in care. This was in response to detailed recommendations from a Review Group which has undertaken a lengthy period of engagement and consultation on such redress. The Government has committed to the establishment of the scheme by the end of March 2021.

The Government on 25 April 2019 opened an advance payment scheme ahead of the statutory scheme. This scheme will remain open until a full statutory scheme is put in place.

The Advance Payment Scheme

Eligibility

The advance scheme is designed to provide ex gratia payments to survivors who may have passed away by the time the statutory scheme is in place. The scheme is open to those who submit a complete application and:

  • Have suffered abuse while in care in Scotland prior to December 2004, and;
  • Have either a terminal illness or are age 70 or over.

The scheme is not open to next of kin where the survivor has already passed away.

In care

“In care in Scotland” is widely defined, with only minor clarifications, to include most establishments intended to provide children with long-term residential care. Please see the Government’s webpage for full details.

The Advance Payment

The advance payment has been set at £10,000. This is a flat amount and everyone whose application is approved will receive the same sum (with certain exceptions). Deputy First Minster John Swinney, in respect of the level of payment, has said:

“The Advance Payment level has been set at £10,000, which is broadly in line with interim payments made by redress schemes in other parts of the world”

The minister’s statement indicates that those who receive an advance payment and are alive when the full statutory scheme arrives may be eligible for a further payment. This is an ex gratia payment (meaning no legal liability is accepted by making the payment) and is funded by the Scottish Government through its common law powers. The payment is discretionary and will depend on evidence being produced in support of an application for payment.

It appears that efforts are being made (for example through discussions with the HMRC) to ensure that deductions from the sum are not made in respect of benefits, medical expenses, tax or residential care.

Civil and criminal courts

Survivors who have in the past pursued claims in the civil courts can apply but need to check the terms of their settlements. Those currently pursuing civil claims can also apply but they are advised to consult with their legal representatives, the inference being that an advance payment may impact on damages awarded later.

Survivors who have previous received criminal injuries compensation from the CICA must notify the CICA as that payment may be reduced if it is in respect of the same injury.

Limitation

We have previously reported that the Government has removed the limitation period for abuse claims and set a new cut off of 26 September 1964. However, the advance payment scheme makes no such stipulation within the eligibility criteria.

Evidential requirements

The evidential requirements for an advance payment are flexible and set relatively low. They are well below any judicial standard. The guidance for the scheme, sensitively, acknowledges that there is unlikely to be written evidence of abuse but instead focuses on the dates the applicant was in care and the name and location of the place where the abuse took place. It is important to note that statements made to the Scottish Child Abuse Inquiry are not to be sent in support of applications.

A special advanced payment team is available to process applications and also advise on the gathering of evidence. Helpfully the scheme guidance includes a template subject access request letter to assist applicants in obtaining their records.  

Comment

The advance payment scheme is proof of the Government’s commitment to providing redress for abuse survivors as quickly as possible now that they have accepted the need for a full statutory redress scheme. It is notable that the Government has chosen to use its common law powers ahead of finalisation of the statutory scheme to assist the most physically fragile applicants. The Government has indicated that it will meet the cost of payments under the scheme, this should not necessarily indicate that the Government will take on the full costs of the final statutory scheme.

Local authorities and other care providers should also take note of the advance payment scheme guidance on obtaining documents via subject access request. It is probable that a significant number of requests will have to be processed even before the statutory scheme is in place.  

For any further information regarding any aspect of the issues raised in this case, please contact Pamela Stevenson, Partner 0141 375 0867 or email pamela.stevenson@weightmans.com

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