Scottish statutory “in care” redress scheme

Today, Scottish Government launched a pre-legislative consultation on a redress scheme for childhood abuse in care.

A link to the consultation webpage is here. The consultation closes on 25 November 2019. Scottish Government has committed to introducing a Bill for a redress scheme in spring 2020 and for the legislation to be passed, assuming parliamentary approval, before March 2021. Royal Assent and possibly also a commencement order would then be needed to bring the Act’s provisions into force.

The statutory scheme will replace the Advanced Payment Scheme (APS) which opened on 25 April 2019. APS is restricted to those aged 70 and over or with a terminal condition. More than 200 survivors have already received an APS payment. The statutory scheme will not be age or condition-related. Receipt of a payment under APS will not stop a further claim being made under the statutory scheme.

Scottish Government’s statutory scheme proposals include:

  • Those responsible for the abuse of children in care should make financial contributions to the scheme. The consultation asks quite wide-ranging questions on this, including:
    • whether contributions should be “up-front” or dependent on the number of applications relating to a particular organisation;
    • whether financial impact on current services should play a part in determining contributions;
    • what “fair and meaningful” contributions would look like; and
    • whether there should be any consequences for any failure to make such contributions.
  • The statutory scheme will operate as an alternative to a civil compensation claim so it will not be possible to obtain both a redress payment and civil compensation.
  • “In care” for the purposes of the scheme will mean where an institution or body had long-term responsibility in place of the applicant’s parent and the applicant was within an eligible residential setting. So, children who attended fee paying boarding schools and who were sent there by their parents for the primary purpose of education would not be eligible even although they are being considered by the Scottish Child Abuse Inquiry.
  • Those who suffered abuse as children in care before 1 December 2004 will be eligible to claim. The Scottish legal impediment of prescription for civil compensation claims relating to abuse before 26 September 1964 will not apply in the context of the redress scheme.
  • Abuse should be defined in the same non-exhaustive terms as in the 2017 Act which abolished the Scots Law three year limitation period for personal injury claims arising out of childhood abuse as including “sexual abuse, physical abuse, emotional abuse and abuse that takes the form of neglect”.
  • A two stage approach of a flat rate payment and the option of applying for an additional payment reflecting the nature and severity of the abuse and the lifelong impact on survivors.
  • Spouses and children of deceased survivors should be able to make an application for a next of kin payment. The consultation invites views on whether such payments should be made at a range of percentages of the “stage 1” flat rate payment. Scottish Government proposes that a survivor would have to pass away after 17 November 2016 before a surviving spouse or child would be eligible to claim.
  • A new public body should be set up to administer the scheme and an independent panel to decide on applications.
  • The scheme would be open for applications for up to five years with ministerial power to extend if required.

Hughes_Frank Fiona McEwan

Frank Hughes, Partner and Fiona McEwan, Associate

 

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