In our last blog we looked at the general overarching principles of the proposed statutory financial redress scheme (“the Scheme”) in Scotland.
In today’s blog we intend to look at the proposed redress payments, what evidence will be required and how the redress payable will be assessed.
It is the Scottish Government’s intention that the Scheme will provide for a combination payment approach which could have two possible stages much like the Lambeth Redress Scheme.
The proposed Stage One Payment (which bears all the hallmarks of a Common Experience/Harm’s Way Payment) would not attempt to assess the individual experience of abuse or its impact.
In addition to the Stage One Payment, survivors may be able to apply for an additional Stage Two Payment which would assess the individual experience of abuse and the impact it has had on their life. It is accepted that it is difficult to assess the individual experience of abuse and its impact which is often unique due to the individual circumstances of each applicant.
However, in the survivor consultation undertaken by the Scottish Government in 2017 the factors survivors thought should be considered in making this individual assessment is as follows:-
- length of time in care
- type of abuse
- frequency of abuse
- severity of abuse
- loss of opportunity as a result of the abuse
The Public Consultation does not propose any tariff for Stage One and/or Stage Two Payments at this time.
To apply for either payment it will be necessary to produce some documentary evidence of having been “in care” in Scotland. Consideration is being given to enable those who may be operating the Scheme, in certain circumstances to compel third parties to release documentation if it exits, which is required to support and application to the Scheme.
It appears that no firm view has been taken as to the nature and format of the application and supporting documentation that should be submitted in support on an application for a Stage One and/or Stage Two payment and serval options are put forward for consideration in the public consultation. However, it is noted that the survivor consultation in 2017 came down in favour of an applicant being afforded the opportunity to give oral testimony of abuse and its impact if they are not in a position to prove the same by documentary evidence.
If an applicant to the Scheme has received a payment from another source (i.e. a previous civil action or out of court settlement) they will nonetheless be entitled to apply for financial redress under the Scheme, but any previous payment will be deducted from the financial redress assessed under this Scheme. Indications are that any previous payment would be increased in line with inflation since the date of payment.
In common with most modern national redress schemes an applicant who accepts an award of financial redress under the Scheme will likely have to give us their right to bring a civil claim in court in respect of the abuse the subject of the redress application.
It is intended that the Scheme will operate independently of the Scottish Government. A panel will be appointed by the Scottish Government to assess the claims and will include people with specialist expertise and skills in legal knowledge, an understanding of human rights and knowledge of complex trauma and its impact. Decisions as to the amount of financial redress to be awarded are likely to be made by a 3 person panel drawn from the wider panel referred to above. It is not at this stage anticipated that survivors will sit on the decision-making panel but it is likely that a survivor panel will be appointed to provide survivors with a dedicated role on the development and administration of the Scheme.
Those parties who may have to contribute to the cost of running and operating the Scheme are also being asked for their views on whether they would/should also be contributing to a broader reparation package which may include someone all of the following:
- Enabling supportive access to records;
- Financial support for counselling sessions;
- Signposting people to a range of relevant supports;
- Tracing and unifying families;
- Offering after-care support;
- Individual sessions to promote reconciliation;
- Individual apology;
- Ensuring that previous residents are aware of the scrutiny by current registration and inspection regimes.
The proposals put forward in the public consultation are not unexpected and in the main mirror the concepts and processes utilised in previous and ongoing Redress Schemes both nationally and internationally,
However, what is clear is that the Scottish Government now has a clear road map in place in terms of mapping out what the Scottish Redress Scheme is going to look like and who is going to have to contribute to the costs of the same.
For anyone who wants to know more about the public consultation or wishes to make a submission please click here.
Written by Sharon Moohan, partner at BLM