The “Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill continues the long march towards becoming law. Following a period of consultation, the Bill was formally introduced on 13 August 2020. The Bill is now within Stage 1 (Committee consideration). In Stage 1 the bill is provided to a Parliamentary Committee for consideration. The committee will thereafter report to Parliament on the bill. If the bill passes the Parliament vote, then it will move to Stage 2 (“line by line” scrutiny) before eventually being considered by the whole Parliament in Stage 3. Amendments can be made to the bill in Stages 2 and 3.
Our Pamela Bradshaw had previously commented on the proposed bill and detailed some initial concerns. Her concerns included an overly narrow definition of “children in care” with some key groups of individuals being excluded (e.g. fee paying boarding schools) and there being a lack of opportunity to appeal a decision (unlike with a Criminal Injuries Compensation Application).
The Bill seeks to establish an independent body corporate called “Redress Scotland”. The primary role of the proposed body is to determine applications under the redress scheme.
An individual may apply for financial redress where eligible (determined by Redress Scotland). At present to be eligible the survivor must have been abused whilst:
- A child (under 18)
- Resident in a relevant care setting in Scotland
In addition the abuse must have occurred before 1 December 2004.
Abuse encompasses sexual, physical, emotional and neglect.
A “relevant care setting” is a residential institution where the day to day care of children was provided on behalf of a person other than the parent or guardian of the child. In a change following consultation a “relevant care setting” now also includes a place where a child is being “boarded out” or fostered. This would likely capture fee paying boarding schools.
There is no doubt the bill seeks to restrict where redress may be sought to those who have survived historical child abuse within what may loosely be termed a residential care setting. Where the abuse has happened outwith the scope of the bill it must be imagined that the intention is for redress to be sought from the Criminal Injuries Compensation Authority or via a personal injury action as is the case now.
It is no surprise that those who may qualify for redress under the scheme, will likely have suffered abuse within a relevant care setting where those providing that care (be it a public authority, or voluntary organisation) will similarly be expected to contribute to the fund that provides redress. It may be presumed therefore that the primary advantage of the bill is to lighten the load on the public purse brought about by the vast increase in criminal injury compensation applications relating to historic abuse now being processed by the Criminal Injuries Compensation Authority. A less cynical assessment is that it should allow a far more streamlined and less involved process for certain abuse survivors than bringing a personal injury action.
As before an application for redress may take two forms, a fixed rate payment (£10,000) and an individually assessed payment (tiered system to maximum of £80,000). The bill does seem to envisage a situation whereby following receipt of a fixed rate payment an additional sum may be sought thereafter in certain circumstances. Further, the application must be made 5 years from the date that the bill eventually comes into force.
Fixed rate applications would require determined by a 2 member panel of Redress Scotland, and an individual application would require a 3 member panel.
As may be expected, awards from any other relevant source would be deductible from any award made by Redress Scotland. This would include compensation received by way of a personal injury action, and an award by the Criminal Injuries Compensation Authority. Bookending this provision is a further section detailing that acceptance of any offer of redress must be accompanied by the applicant completing a waiver agreeing to abandon any civil proceedings already instigated, or waiving any right to bring civil proceedings.
These provisions create the situation where it would be wise for any applicant to consult with a solicitor prior to bringing any application under the bill, or agreeing to any settlement owing to the fact that potential compensation via a personal injury action may dwarf an award under the bill in certain circumstances.
The bill as brought allows opportunity for review of a decision of the initial Redress Scotland panel. Any review is dealt with by a review panel convened by Redress Scotland of at least 3 members who did not sit on the previous panel. Perhaps notable by its absence in the proposed bill is the ability of an applicant to seek review of a Redress Scotland decision from an independent body such as a Scottish Tribunal. It seems unlikely a lack of any independent review of Redress Scotland decisions would be allowed to proceed into law.
It is worth noting that the principle of the “blameless victim” applied by the Criminal Injuries Compensation Authority would also apply in terms of the bill, albeit in a more restricted sense. Where the applicant is guilty of certain higher level criminal offences (murder, rape etc) then public interest may be considered as justification for refusing to make an award.
It is notable, that unlike a Criminal Injuries Compensation Application, there is some scope for a solicitor to recover fees on behalf of an applicant where such legal costs are reasonably incurred and where the request discloses exceptional or unexpected circumstances which justify the payment of those fees. Whilst this provision is an improvement over a Criminal Injuries Compensation Application, it is potentially quite restrictive (depending on how interpreted by Redress Scotland) and perhaps ignores the reality that applicants for redress will have some quite complicated questions to negotiate (particularly in relation to where & when to seek compensation and the consequences on signing a waiver) and will likely be quite vulnerable and consequently would likely benefit from legal representation.
In general such a bill allowing another potential avenue for survivors of historic abuse in Scotland must be welcomed. However, certain provisions of the bill will likely require significant revision on the road to the bill becoming law, in particular the lack of independent review of Redress Scotland decisions. Further, the introduction of the bill creates a further, overlapping route for compensation for the survivor of historic child abuse in certain circumstances, with each route (redress scheme, CICA application, personal injury action) all having their advantages, and disadvantages. This perhaps increases the need at an early stage for such survivors to seriously consider instructing a solicitor who can provide advice on where they would be best served seeking compensation depending on their individual circumstances.