In an earlier blog we addressed recent guidance from the Northern Ireland Redress Board (“the NIRB”) on non exhaustive examples of what constitutes physical, sexual and emotional abuse and neglect for the purposes of assessing compensation payable to those who experienced abuse in residential institutions in Northern Ireland between 1922 and 1995.
While Section 12(2) of the Historical Institutional Abuse (Northern Ireland) Act, 2019 (“the 2019 Act”) set out the amount of compensation that could be awarded it did not provide any guidance on the bandings for the compensation payable to applicants.
While other modern redress boards like those in Ireland and Australia adopted bandings in terms of the redress payable, those redress schemes chose to set their bandings on a legal footing, introducing them by way of statutory instrument and/or ministerial order.
However, the NIRB has chosen to present their bandings in terms of compensation payable under its redress scheme in the form of guidance only and are keen to emphasise that they are “not to be considered as providing inflexible and formulaic scales for the panels.”
The NIRB makes it clear that the sequelae/consequences of the abuse referred to in the table below are provided for guidance only and are not a pre-requisite for compensation under a given banding.
The bandings are set out in broad terms and with wide ranging scope to take account of the inestimable types of factual situations that may have arisen.
The main purpose of the guidance on banding of compensation is to assist and support panels who are assessing applications to the NIRB and to ensure that there is consistency and transparency when assessing the compensation payable, while at all times noting that any compensation payable needs to take account of the individual circumstances of each applicant and the severity of the matters raised in the individual application.
In considering the table below it is worth noting that the term abuse for the purposes of the NIRB encompasses physical, sexual and emotional abuse along with neglect and maltreatment. The definition of abuse also includes witnessing the abuse of other children and the experience of harsh environment within an institution, as well as being sent to Australia under the programme commonly known as the Child Migrant Programme. The term also includes maltreatment which comprises ‘unacceptable practices’ referred to in the Hart Report such as unpaid labour and the unacceptably punitive treatment of enuresis and neglect which extends to including a failure to provide access to appropriate education.
Section 12(2)(a) application only – lower end examples of neglect / maltreatment and emotional abuse
|A harsh environment may include examples such as;
Unacceptable practices at bath time (use of `Jeyes’ fluid);
Unacceptably punitive approach to enuresis (bedwetting);
Excessive level of physical chores;
Name-calling / derogatory remarks by staff;
Concealing evidence of siblings / parental communications / gifts;
Issues in relation to quality of food / clothing provided;
Not celebrating birthdays;
Poor care when ill;
Other matters contributing to a harsh / bleak / loveless -environment
|In terms of sequelae (consequences), general speaking the examples of neglect / maltreatment / emotional abuse falling under this category are likely to have left the victim/survivor with unpleasant and enduring memories of his/her time in care but will not have caused either physical or psychological disorder which required a medical intervention at the time.
In the longer term, their experiences may not have required medical intervention beyond general counselling or seeking support from friends / family.
£10,000 to £30,000
Section 12(2)(a)&(b) application including more serious & protracted examples of maltreatment, neglect and emotional abuse and less serious physical /sexual abuse, for example
|Over-reliance on corporal punishment / corporal punishment which was excessive / general rough-handling which was tantamount to a lower end physical assault;
Occasional peer bullying / “charge boy” bullying;
Protracted and systemic name-calling / derogatory remarks in relation to the child or child’s parents amounting to clear and damaging emotional abuse;
Witnessing the physical / sexual abuse of other children and protracted exposure to a climate of punishment and fear;
Sexual abuse such as touching through clothes;
Inappropriate sexual language/innuendo
Combination of section 12(2)(a) examples above, which taken together amount cumulatively to more serious abuse.
|In terms of sequelae (consequences), those falling into this category are likely to have been left with unpleasant and troubling memories from their time in care. Those who suffered physical abuse may have required some form of minor medical treatment, but may well not have needed to attend a hospital or to see a medical professional. Any physical injuries sustained should have substantially resolved within a few days or weeks.
Psychological sequelae may have resulted in disrupted sleep or disruption to daily activities and may have required a more intensive / protracted intervention than under s12(2)(a), but should have substantially been resolved with only minor symptoms persisting after 1-2 years.
30,000 to £50,000
Section 12(2)(a)&(b) application incorporating more serious physical and emotional abuse and more serious sexual abuse
|Persistent and protracted emotional abuse of a child which was so denigrating and demeaning that it was likely to undermine self-esteem and create longer term problems with emotional health and well-being;
Physical abuse, including manifestly excessive corporal punishment / beating by staff, peers or “charge boys” which was tantamount to a more serious physical assault;
Sexual abuse, including sexual touching.
|In terms of sequelae (consequences), those suffering physical abuse in this category are likely to have required some form of professional medical intervention for the injury suffered (regardless of whether or not that treatment was in fact provided). Victims and survivors in this category may typically have suffered some form of recognised psychiatric damage, resulting in severe disruption to sleep and/or daily activities but may have substantially recovered (with proper medical intervention and support), albeit with the potential for occasional relapse or reoccurrence of the symptoms of psychiatric damage.|
£50,000 to £70,000
Section 12(2)(a)&(b) application including the most serious forms physical abuse and sexual abuse
|Extremely serious, violent physical abuse (equivalent to an assault occasioning grievous bodily harm), or repeated serious physical abuse over a protracted period of time;
the most serious sexual abuse, including oral, vaginal and anal rape;
|Physical injuries under this category would typically require serious medical intervention and hospitalisation.
Psychological sequelae (consequences) (involving severe disruption to daily functioning) may persist indefinitely, with a poor prognosis of recovery.
£70,000 to £80,000
Section 12(2)(a)&(b) application covering the most grave and pernicious cases of physical and sexual abuse where the panel consider that only a top bracket award will suffice.
|Repeated instances of the most serious physical violence or the most serious sexual abuse, or a combination thereof, or cases of serious physical or sexual abuse accompanied by particular aggravating factors (such as the age or vulnerability of the victim).||Physical injuries falling under this category may typically have resulted in some form of life-long disability or reduced physical functioning.
Psychiatric sequelae (consequences) may typically include severe psychiatric injury which has caused permanent and severe dysfunctional harm.
You will see from the table set out above that it is possible to recover the maximum amount of compensation payable for the most serious physical or sexual abuse or a combination of both where that abuse had led to a life-long disability or reduced physical functioning or to a psychiatric injury which has caused permanent and severe dysfunctional harm. This is an interesting and somewhat unique aspect of this guidance placing as it does sustained serious physical abuse over a prolonged time on the same footing as serious sexual abuse in terms of assessing compensation.
Written by Amanda Munro at BLM