Three reports have been published this year, the first two relate to investigations and the third is the over-arching interim report. Previous blogs have commented on these individually but it is clear that some patterns and key issues are emerging. Some of those relate to safeguarding and individual institutional responses. Others relate to issues associated with redress. These latter issues are considered below. Continue reading
On 18 December 2017, Lambeth Council (“the Council”) approved the Lambeth Children’s Home Redress Scheme (“the Scheme”) to compensate survivors of sexual, physical and psychological abuse in Lambeth Children’s Homes and Shirley Oaks Primary School (“Lambeth Institutions”)from the 1930s to the 1990s.
The Scheme will commence this month with first payments anticipated to be made in March 2018. It is estimated that there are about 3,000 claims with an expected cost of £100 million. Funding is being provided through the public loan works board. Complex claims, approximately 5-10%, will be considered outside of the Scheme costing an extra £40 million.
The Council developed the Scheme with the advice and input of specialist lawyers and has said that drafting the Scheme was a difficult task as there was no precedent to follow, the Scheme being the first of its kind in England. However the Council consider one of the advantages of the Scheme is that action is being taken now rather than waiting for the conclusion of IICSA’s investigation into child sexual abuse within Lambeth.
Specifics of the Scheme:
- Duration – two years (January 2018-January 2020)
- Administered by the Council
- Applicants are to use the Scheme’s Application Form
- No survivor will have to restate their experience of abuse in court, applicants will receive a formal apology from the Council and appropriate counselling services
- The Council will provide applicants with specialist advice and assistance for housing, benefits, further education and employment
- Average damages unknown but a maximum award of £125,000
- Compensation payments are based on a tariff, a points based system in line with the common law. Payment should fairly reflect the severity of the abuse as well as the hurt, fear and humiliation experienced and the lifetime consequences caused by the abuse
- Funders of the Scheme are the Council via public loans from Government
- Foster care claims to be included within the Scheme where former residents of Lambeth Institutions were directly placed into foster care and abused by foster carers
- Stepped “Harm’s Way Payment” linked to time spent in a Lambeth Institution to be paid to eligible applicants of up to £10,000 where they were a resident at a Lambeth Institution and lived in a harsh environment or a payment of £10,000 where they were resident at a Lambeth Specialist Unit. A harsh environment is defined as living in an environment which caused the applicant to fear or apprehend they would be subject to immediate physical abuse and mistreatment, sexual abuse, neglect or cruelty. An applicant must be able to demonstrate that the experience interfered with their ability to experience happiness and fulfilment during the qualifying period of their childhood. However where there has been sexual abuse then written evidence in support of the application will not be required and the award will be £10,000 irrespective of time spent in the Institution.
- All applicants will receive independent legal advice of their choice paid for by the Council and have the right to appeal should they disagree with a decision made. The Council will pay applicants reasonable legal fees but cannot stop lawyers from deducting from the applicants’ compensation although the Council will encourage them not to do so.
- Appeals to be considered by a multidisciplinary appeals panel
- Where necessary psychiatric evidence can be obtained for an applicant and the Scheme includes provisions regarding instructions to experts
- If an eligible applicant is deceased the Scheme allows for a personal representative to apply on behalf of the deceased’s estate for a compensation payment however Harm’s Way Payments are not permitted in this category
- Any previous or on-going civil claims will be taken into consideration by the Council. If previous compensation payments have been made these will be considered an interim payment and considered when payments under the Scheme are calculated
- Any previous compensation from the Criminal Injuries Compensation Authority (CICA) for the same injuries by the same perpetrator relating to the same allegations under the Scheme will be repaid by the applicant to the CICA.
The Council had hoped to develop the Scheme with the Shirley Oaks Survivors Association (SOSA) who have been vocal in drawing attention to the non-recent abuse that occurred in Lambeth. However SOSA do not endorse the final Scheme as they consider a number of the vital concerns they raised during consultation have not been adopted.
SOSA’s criticisms include:
- Lack of vital ingredients ensuring independence – as the Scheme is run and administered by the council
- No provision for disclosure – no obligation on the council to disclose to survivors participating in the Scheme the information or files held about them;
- Appeal – no opportunity for oral representations.
Striking the right balance when developing a scheme is difficult as there are multiple complex factors to consider and if not adequately planned schemes could fail before they come into operation or be redundant if survivors interested in participating do not engage.
It will be interesting to see how successful Lambeth’s Scheme will be and whether lessons will continue to be learned by both public and private institutions in the future when drafting their own schemes and by those engaging with them.
Other jurisdictions have employed redress schemes post their national inquiries, as in Canada, Ireland, Jersey and Australia. These examples are likely to influence the IICSA when it makes its own recommendations for redress in the future.
Written by Miriam Rahamim, solicitor at BLM
The Criminal Injuries Compensation Authority (CICA) has announced new guidelines on compensation for abuse victims. A key topic in these guidelines is the approach to be taken to the issue of consent.
Last July five charities – Barnardo’s, Victim Support, Liberty, Rape Crisis and the National Working Group wrote to the justice secretary David Lidington stating that the CICA was refusing applications from victims as young as 12, claiming they were ‘consenting’ to abuse, even though the perpetrators of the abuse had been convicted.
The CICA deals with ‘compensation claims from people who have been physically or mentally injured because they were the blameless victim of a violent crime in England, Scotland or Wales’.
It has been reported that there are hundreds of victims who have been refused compensation on the basis of arguments about consent, including a Rotherham child sexual abuse victim.
Following the reports, the CICA carried out an internal review on applications for compensation for sexual abuse victims. The findings of the review have prompted the CICA to publish new guidelines stating “even if it appears that the minor expressed consent to the acts in question, it cannot be assumed that this was given because the child wanted to engage in sexual activity as this may actually be a symptom of coercive control. The surrounding circumstances always require to be investigated as these may indicate that the situation was abusive and the consent was not true consent”.
The CICA has confirmed it has new safeguards in place and that all ‘complex’ claims for compensation from victims of sexual abuse will be referred to CICA lawyers. It also suggests that it is improving training for its staff in this area.
Written by Nicola Aspinwall, solicitor at BLM