Further detail on the waiver for Scottish in-care redress payments has emerged with the publication of draft regulations on the form and content of the waiver here and an accompanying policy note here. The draft regulations refer to a 1 December 2021 implementation date, in keeping with an earlier Scottish Government commitment that the redress scheme will be open for applications by the end of this year.
The draft regulations detail certain information that must be provided by Scottish Ministers to a person being offered a redress payment, covering:
- the relevant scheme contributors the waiver is to apply to;
- the options a person has in relation to accepting an offer of redress, including the timescales for doing so, and the effect of signing and returning a waiver;
- the importance of obtaining independent legal advice before accepting a redress payment and signing and returning the waiver; and
- the availability, under the redress scheme, of fees for such legal advice.
The draft regulations also prescribe the precise form and content of the waiver, including:
- notification to the applicant of the potential for retrospective removal of a relevant scheme contributor from the Scottish Government list of such organisations and of the potential consequence that the waiver will not then apply to them depending on the effective date of removal;
- a requirement for any relevant existing civil proceedings to be abandoned by the applicant, with proof of abandonment and dismissal of the case to be provided prior to release of the redress payment; and
- confirmation that any claim or right to being relevant civil proceedings against either Scottish Ministers or a relevant scheme contributor is discharged, subject to the point on potential retrospective removal.
To qualify as a “relevant scheme contributor”, an organisation has to make a “fair and meaningful” contribution to the scheme in the assessment of Scottish Ministers.
To re-cap, the scheme being established is for redress payments upon successful application and in return for a signed waiver to those who were abused as children (under 18) in relevant residential care settings before 1 December 2004. Successful applicants will receive a redress payment of one of £10k, £20k, £40k, £60k, £80k or £100k. The £10k is a “fixed rate payment” which may be topped-up to any of the higher levels by an “individually assessed payment” taking account of the nature, severity, frequency and duration of the abuse and any other relevant matter. Next of kin of relevant deceased persons can apply for a redress payment of £10k, or a relevant share of that, where the person abused died on or after 1 December 2004.
With Qualified One-way Costs Shifting (QOCS) now in force for all Scottish personal injury claims litigated from 30 June 2021, it will be interesting to see how many claims which could be the subject of redress applications will have been litigated by the time that the redress scheme opens for applications later this year and also the volume of accepted redress offers compared with the number of relevant litigated claims thereafter.
Frank Hughes, Partner and Fiona McEwan, Associate
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