Redress For Survivors (Historical Child Abuse In Care) (Scotland) Act 2021: statutory guidance – next of kin

Next of Kin

1. This guidance is issued under section 106 of the Redress for Survivors (Historical Abuse in Care) (Scotland) Act 2021 ("the Act").

2. This guidance applies to Redress Scotland, next of kin applicants and their legal representatives, and anyone providing assistance to the next of kin in applying to the redress scheme, who must have regard to the guidance.

3. This document gives guidance in relation to the provisions in the Act relating to next of kin applications, to be found in particular in sections 24-28 (eligibility to apply for next of kin payments), and section 40 (next of kin payment) of the Act.

4. Applicants must submit the information and evidence with their application as required by Scottish Ministers (section 29(1)(e) of the Act).

5. Applicants may also find it useful to refer to the Help to Apply guidance for next of kin applicants when completing their application.

Purpose of next of kin payments

6. The purpose of the next of kin payment within the redress scheme is to provide acknowledgment to those survivors who died on or after 1 December 2004, who may have formed a reasonable expectation that a redress scheme was to be established, and that they would meet the eligibility criteria, but who died before the scheme opened, or before they had applied to the scheme, or while their application for redress was ongoing and no payment was made either to the deceased survivor, their estate, or a nominated beneficiary.

7. It is considered that a reasonable expectation would have been formed on or after 1st December 2004, which is the date the then First Minister Jack McConnell made a public apology in the Scottish Parliament and when Scotland began the process of recognising the abuse of children in care in the past.

Eligibility criteria

8. A next of kin payment is tied into the underlying entitlement of the survivor of abuse to a redress payment. Next of kin applicants must establish two aspects of eligibility: the first is, in relation to the deceased survivor; and the second is in relation to the next of kin themselves.

Eligibility – deceased survivor

9. In order for the next of kin to be eligible, the following conditions must be met as regards the deceased survivor:

• they must have been abused while they were resident in a relevant care setting in Scotland when they were a child (i.e. under the age of 18)
• the abuse must have taken place before 1^st December 2004
• the abuse must have constituted "abuse" within the meaning of the Act, which defines "abuse" as including physical abuse, emotional abuse, sexual abuse, or abuse which takes the form of neglect
• they must have died on or after 1^st December 2004
• they must have either not applied for a redress payment or died whilst the application was ongoing and no payment was made, either to the deceased survivor , their estate, or a nominated beneficiary.

Exceptional circumstances:

10. A next of kin would not normally be entitled to apply where the deceased survivor had previously rejected a redress payment. However, under section 25 of the Act, in exceptional circumstances, next of kin may seek permission from Redress Scotland to apply where the deceased survivor was offered a redress payment but did not accept it during the period it was valid and as such the offer 'timed out' (which would normally be treated as a rejection of the offer, see section 49 of the Act). Such exceptional circumstances might include where the survivor was unwell or incapacitated and unable to accept the offer or request that the validity period of the offer be extended. Next of kin have a right of review of these decisions if Redress Scotland do not grant permission to apply under exceptional circumstances.

11. Guidance setting out further information on "relevant care settings" and the meaning of "abuse" can be found in the guidance on eligibility.

Identification of nominated beneficiary

12. Where a nominated beneficiary is invited, and accepts the invitation to take over the application, the next of kin will not be eligible to apply for a next of kin payment unless the nominated beneficiary dies whilst their application in respect of the deceased survivor is ongoing.

13. In many circumstances, the next of kin and the nominated beneficiary are likely to be the same person. In these circumstances, that individual should look at the guidance on nominated beneficiaries.

14. There may be circumstances where the receipt of a next of kin application is the first notification to the redress scheme that a survivor who has an ongoing application for redress has died.

15. In these circumstances, the ongoing application by the deceased survivor would be reviewed by a case worker to confirm whether there was a nominated beneficiary in force. If there was, Redress Scotland would consider whether to invite the nominated beneficiary to take over the application in accordance with section 66.

Eligibility – next of kin

16. The next of kin applicant must also establish that they qualify as 'specified' next of kin in accordance with section 28 of the Act.

17. 'Specified' next of kin are set out in order of priority.

18. If there is a cohabitant of the deceased person, then that person will qualify as the only next of kin. This means that the cohabitant, if the other eligibility requirements are met, will receive the whole of the next of kin payment (£10,000 subject to deduction of any relevant payment under section 42).

19. If there is no cohabitant, but there is a spouse or civil partner, whether or not they were living with the deceased survivor, then that spouse or civil partner will qualify as the only next of kin. This means that the spouse or civil partner, if the other eligibility requirements are met, will receive the whole of the next of kin payment (£10,000 subject to deduction of any relevant payment under section 42). For the avoidance of doubt, the marriage or civil partnership must not have ended by divorce or dissolution: former spouses and civil partners are not specified next of kin.

20. If there is no cohabitant, spouse or civil partner, and no redress payment was paid to them or to their estate, then a child or the children of the deceased person can become the specified next of kin. See below for the share of redress payment for each surviving child.

21. If a cohabitant died before accepting an offer of a next of kin payment, and therefore the next of kin payment was not made either to the cohabitant or their estate, then the right to apply for a next of kin payment would pass to the children of the deceased survivor (if any), rather than a surviving spouse or civil partner. If there were no surviving children, then no next of kin payment would be made as the specified next of kin at the time of the survivor's death was the cohabitant – eligibility does not pass to a spouse or civil partner in these circumstance.

22. Where the deceased survivor has no eligible next of kin in either category, the right to apply for a next of kin payment does not pass to other family members. Where a survivor of abuse is not survived by a spouse, civil partner, cohabitant or child, no next of kin payment will be made.

23. For the avoidance of doubt, a surviving spouse, civil partner or cohabitant is not able to give up their entitlement in favour of the children of the deceased survivor.

24. "Cohabitant" is defined in the Act as someone who was living with the deceased survivor, as if they were married, for at least 6 months immediately prior to the survivor's death.

25. Children, for the purpose of redress, include step-children and any person treated by the deceased as their child.

Share of next of kin payment - children

26. Where there is more than one surviving child, the next of kin payment for each child is the whole amount of the payment (£10,000 subject to deduction of any relevant payment under section 43) divided by the total number of surviving children at the date that the first (or only) application for a next of kin payment is made.

27. For example, if one child of the deceased submits an application, but there are three other surviving children at the date of the application who have not applied, the next of kin payment for the child who applied, is one quarter of the total next of kin payment (£2,500).

28. If all four children, in the above example, applied at the same time, each child will receive one quarter of the next of kin payment (£2,500).

29. If, however, the children did not apply at the same time, and by the time of a later application, there were, for example, only three surviving children in total (i.e. one of the children has died following the first application), each surviving child is still only able to receive one quarter of the total next of kin payment (£2,500).

30. There is no requirement for all children to apply, or for all children to apply at the same time, but the share of the next of kin payment is fixed by the number of surviving children at the date of the first application.

31. Children are not able to waive their entitlement and assign their shares to one another. Separate applications are required from each child who wishes to receive a next of kin payment.

Identification of surviving children

32. There may be instances where some, but not all, of the identified surviving children of a deceased survivor apply to the redress scheme.

33. In those, and other, circumstances, the scheme will not proactively contact next of kin to advise them of their potential eligibility for a next of kin redress payment. To do so would disclose to them sensitive information about their parent, which they may not have known and that their parent may not have wanted them to know.

34. It is also recognised that that there may be circumstances in which a child applying for redress in respect of their deceased parent, simply does not know of the existence of another sibling. Should a second or subsequent child of the deceased apply for a next of kin redress payment, who was not identified in the course of the initial next of kin application by another child of the deceased, that second or subsequent child will not be prejudiced by the previous error in identifying the number of children amongst whom the next of kin redress payment should be equally divided.

35. Provided the second or subsequent child can satisfy the evidential requirements, they will be entitled to a share of the next of kin redress payment which will be calculated as an equal share among the number of children, as at the date of the first child's application.

36. To take an example, where next of kin payments were made, based on applications in respect of four surviving children, each child would have received a payment of £2,500. If it later transpires that there was a fifth child, the latter would potentially have a right to a payment of £2,000, subject to the evidential requirements being met (based on five surviving children, a one fifth share). Whilst the other four children have technically received an over-payment of £500 each, it was based on the information known at the time of the determination, on the number of children to share the next of kin payment. The determination of the fifth child similarly has to be based on the information known at the time of the determination, on the number of children to share the next of kin payment.

37. Depending on the circumstances that led to the error in the identification of the correct number of children to share the next of kin payment, (e.g. was it a mistake made in good faith because the initial applicant(s) was unaware of the existence of other siblings or is there cause to believe it was a false or misleading representation), Scottish Ministers may use the processes and powers set out in chapter five of the Act to recover any overpayments. Applicants will be notified should their application be affected by this.

38. Children applying for redress must therefore, to the best of their knowledge and belief, identify if there are any other surviving children of their parent.

39. There may be rare circumstances where a child applies without knowing of the existence of other siblings, and instead of being offered the whole next of kin payment as they expect, they are offered only a share, because Redress Scotland is aware of the existence of another sibling(s) who has previously applied and been found eligible to receive a next of kin payment in respect of the same deceased survivor. In these circumstances, while Redress Scotland would have to disclose its reasons for the determination, personal information disclosing the identity of those unknown siblings would not be shared.

Evidence

Challenges

40. Next of kin may face challenges in obtaining evidence to support their application, particularly around establishing that the deceased survivor was in care in the settings covered by the redress scheme, and that they were abused whilst they resided there. Next of kin have different rights of access to information and evidence about the survivor, than the survivor would have had if they were alive to apply for redress themselves. These potential challenges and limitations have been applied in setting evidential requirements and care has been taken not to create barriers or burdens which are simply too high, or unachievable.

Support to Apply

41. Scotland's Redress Scheme has been designed and developed to offer applicants support at every stage of the process.

42. The kind of information needed to accompany an application for redress may come from diverse sources. In some cases it may already be in the applicant's possession, or in the possession of other family members.

43. The main care providers and all local authorities are aware of Scotland's Redress Scheme and their role in helping applicants find supporting documents.

44. Case workers can offer assistance to applicants on how to obtain supporting documents and can be contacted on 0808 281 7777. A conversation with a case worker is often the best first step to exploring the most likely and effective routes to obtaining documents to support applications for redress. Case workers have undergone extensive training and are sensitive to the needs of applicants. Their knowledge builds on the experience and learning gained from working with hundreds of successful applicants to the Advance Payment Scheme.

45. Some people may feel they would benefit from additional support to access records and supporting documentation or may require practical or emotional support. In these circumstances, case workers will be able to refer applicants to the Redress Support Service. Again, applicants are encouraged to speak with case workers to explore the assistance available.

46. Funding for advice and assistance from solicitors is available to applicants. Solicitors have valuable experience in collecting and collating evidence to support actions in court, many of the same types of evidence will be relevant to applications for redress.

47. Section 79 of the Act gives the Scottish Government the power to issue notices to individuals (other than the applicant) or organisations to compel them to provide specified evidence. It is likely that these notices will only be issued when attempts made by the applicant or their representative have failed.

48. The Scottish Government has engaged with the organisations most likely to hold records relevant to an application for redress (including local authorities, care providers and Police Scotland) and will continue to do so throughout the life of the scheme. Opportunities for improving or streamlining the processes for next of kin applicants accessing records are being fully explored.

Information and evidence to be submitted by next of kin applicants (requirements under section 29)

49. The information and evidence required to be submitted by next of kin applicants, under section 29(1)(e) of the Act, is noted below.

50. Applicants for next of kin redress payments are required to submit:

• A completed and signed next of kin application form
• Evidence of identification of applicant and deceased survivor to whom the application relates
• Evidence of next of kin relationship to the deceased survivor
• Evidence of the death of the survivor on or after 1 Dec 2004
• A supporting document to confirm that the survivor was resident in a relevant care setting as a child before 1 December 2004^[1].
• Where possible, a supporting document, to establish that the deceased survivor experienced abuse eligible under the redress scheme, the applicant may wish to supplement this with a written statement as to their knowledge of what happened as told to them by the survivor before they died. Where a supporting document is not submitted, a written statement from the applicant must be submitted.
• If a deceased survivor received or became entitled to a relevant payment in terms of section 42 of the Act, supporting documentation in relation to that relevant payment is required.

51. Notwithstanding these general requirements, there may be circumstances where one or more of the above is not submitted by the applicant, in which case the matter will be determined by Redress Scotland, and further guidance on this is set out below.

Guidance on sources and types of information and evidence to accompany a next of kin application

Evidence of identification

52. Applicants are required to provide evidence of their identity, as well as that of the deceased survivor to whom the application relates, by providing a certified copy of one of these documents:

• passport
• full or provisional driving licence (with a photo)
• European Economic Area (EEA) national identity card
• biometric residence permit (BRP)

53. Information for applicants on how to have documents certified and what alternatives can be provided if they do not have one of the documents in the list above, is contained within the Help to Apply guidance for next of kin applicants.

54. In some circumstances, it may be that the evidence of the death of the survivor, the evidence of the applicant's relationship to the survivor and the evidence of the survivor being resident in a relevant care setting is sufficient and separate evidence of identification of the survivor is not required.

Evidence of next of kin relationship to deceased survivor

Spouses/Civil Partners

55. Applicants are required to provide supporting information of their relationship to the survivor and that their relationship existed at the date of their death.

56. This may include:

• Valid record of marriage or civil partnership under the law of Scotland or elsewhere, such as a marriage or civil partnership certificate.

Cohabitants

57. Applicants are required to provide supporting information to establish that they were living with the deceased survivor as if married for a period of at least 6 months prior to the survivor's death.

58. This may include:

• Bank statements or utility bills in joint names at the same address

• Residential mortgage statement or tenancy agreement in joint names
• Official correspondence that links the applicant and the deceased survivor to the same address
• Evidence of joint responsibility for a child before their death such as a custody agreement showing that the applicant and the deceased survivor were living together and sharing parental responsibility

Children

59. Applicants are required to provide supporting information to establish that they were a child of the deceased survivor.

60. This may include:

• Birth certificates
• Adoption certificates
• A court document, such as a guardianship order
• Marriage certificates to establish that they were the step child of the deceased survivor

61. Where an applicant is a child by virtue of being 'treated as a child' by the deceased survivor, this may include:

• Evidence of a parent cohabiting with the deceased survivor
• Evidence of the deceased survivor:
  • Receiving child benefit in respect of the applicant
  • Receiving Child Tax Credit in respect of the applicant
  • Receiving Universal Credit (child element) in respect of the applicant
  • Having a legal order which clearly shows the survivor had responsibility for the applicant or a kinship care agreement with a local authority
  • Living with the next of kin applicant when the applicant was a child or otherwise, and having day to day caring responsibilities in respect of the child (or the child having caring responsibilities towards the survivor before death)
  • A written acknowledgement of seeing the next-of-kin as a child such as a will making this clear

Evidence of the death of the survivor

62. Where the survivor dies outwith Scotland, applicants are required to provide a certified copy of the death certificate relating to the survivor to whom the application relates.

63. Where the survivor died in Scotland, the scheme is able to use ScotlandsPeople service to verify this on the applicant's behalf.

Evidence the survivor was resident in a relevant care setting as a child

64. Applicants are required to provide a supporting document, to show that the deceased survivor to whom the application relates, was resident in a relevant care setting when they were under 18 years of age and that this was before 1 December 2004.

65. Examples include (but are not limited to):

• a copy of a document from care records held by the care provider, such as an entry in an admission/discharge register, log book, punishment book or disciplinary log. These may be held by the care provider or local authority archivists;
• local authority records, including social work and education records;
• letter from a local authority archivist confirming the deceased survivor appears in their records as being resident in a relevant care setting as a child;
• records that show the deceased survivor's 'in care' address at the time, such as:
  • school records;
  • a baptism record;
  • court or police records; or
  • health records including primary medical records (e.g. GP, dental, ophthalmic, or pharmacy) as well as secondary care records (e.g. hospital or clinic).
• where a deceased survivor was migrated whilst they were a child in care in Scotland, passenger listings or other migration documents which contain reference to the relevant care setting in Scotland from where the migration took place.

66. The supporting document should, if possible, indicate the date or time period the applicant was in care although it is recognised that some documents may not show this. If it is not clear from the document and the other information provided in the application form, further investigation may be required and, after the application has been submitted, the case worker may be instructed by Redress Scotland to seek further information from the applicant.

67. In relation to applications for next of kin payments, one record demonstrating residence in a relevant care setting before 1 December 2004 while the applicant was a child, is to be considered sufficient by Redress Scotland. Where possible, that record should relate to the setting at which the abuse occurred. Where this has not been possible, and the supporting document relates to another relevant care setting, Redress Scotland may wish to seek further information from the applicant (see paragraphs 74-77). Where there is a reasonable explanation for the absence of the evidence, this should not affect Redress Scotland's consideration of the application.

Private fee-paying boarding schools

68. The general approach is that these settings do not fall within the scope of the redress scheme. However, where a local authority or care provider arranged a deceased survivor's placement in a private fee-paying boarding schools and paid their fees in full, abuse they suffered while a resident in the care of that setting, will be eligible for redress (if all the other eligibility criteria relative to next of kin applications are met).

69. Therefore the next of kin applicant must in those circumstances provide documentary evidence which confirms who arranged the placement in the relevant private fee-paying boarding school and paid the fees.

70. Further information on the eligibility criteria of the redress scheme can be found in the guidance on eligibility.

Short-term holiday or respite care

71. Regulations have been made by the Scottish Ministers under section 23 of the Act to provide that an application for a redress payment may not be made to the extent that it relates to abuse that occurred when a person was resident in a relevant care setting for the purpose of being provided with short term respite or holiday care, under arrangements made between their parent or guardian and another person.

72. If however there is evidence of abuse in a relevant care setting where the exclusion does not apply, then the application can be considered at least to that extent.

73. Where the information provided in an application submitted to Redress Scotland is unclear or indicates that abuse may have occurred whilst the deceased survivor was resident in a relevant care setting for the purpose of being provided with short term respite or holiday care, under arrangements made between their parent or guardian and another person, Redress Scotland may ask case workers to seek further information from the next of kin applicant or another source.

Exceptional circumstances

74. In exceptional circumstances, Redress Scotland may use its discretion as to whether it can be satisfied that the deceased survivor was resident in a relevant care setting as a child without the production by the next of kin applicant of a supporting document, or where case workers have been unable to verify the documents submitted.

75. Redress Scotland may exercise its discretion in cases where it is satisfied that all reasonable endeavours have been made to obtain the documentary evidence generally required to support an application, that further inquiries are unlikely to be productive and that this is consistent with any other information or evidence in respect of the particular care setting or arrangements in question.

76. Before exercising its discretion, Redress Scotland may ask case workers to request further information from the next of kin applicant and / or may ask the Scottish Government to require the provision of specified information, documents, objects, or other items of evidence from any other relevant person or body. Where the absence of documentation relates to who arranged and paid for the deceased survivor's placement at a private fee-paying boarding school, Redress Scotland must seek further information about this aspect of eligibility.

77. Redress Scotland may also, if it considers it necessary to do so, invite the next of kin applicant to provide oral evidence on this aspect of their application in order to be satisfied, in the absence of supporting documentation, that the deceased survivor was resident in a relevant care setting as a child.

Evidence of abuse

78. Applicants for a next of kin payment are also required to provide evidence that the deceased survivor to whom the application relates, was abused whilst resident in the relevant care setting. The abuse must have taken place before 1 December 2004 and the deceased survivor must have been under 18 years of age at the time.

79. Applicants for a next of kin payment are likely to face a unique set of challenges in providing evidence of abuse, and it is recognised that in many - or even most – cases, there will not be direct evidence from the deceased survivor of the abuse that they experienced, particularly where they died some time ago. Accordingly, the scheme takes a broad approach as regards the types of evidence that may be considered.

80. Types of evidence that Redress Scotland might take into account include:

• direct evidence left by the deceased, such as a diary entry, or letter disclosing that abuse took place;
• documentary evidence of a disclosure of abuse by the deceased to a third party (i.e. someone other than the applicant for the next of kin payment). By way of example, this would include a record of a disclosure the deceased made to their GP or solicitor, or a statement made by them to the police;
• statements obtained by the applicant from third parties such as siblings or friends of the deceased survivor who were resident in the same care setting at the same time. This would include where they directly witnessed the abuse of the deceased survivor, or where the deceased survivor had disclosed their abuse. Redress Scotland may also have regard to statements submitted by the applicant from third parties at the care setting who witnessed the abuse of other residents, or who experienced abuse themselves.
• where no such independent sources of information are available, statements from the next of kin applicant themselves (about abuse which the deceased disclosed to them) may be acceptable, particularly where this can be supported by other factors. However, Redress Scotland would need to judge the level of detail provided to satisfy themselves whether on the balance of probabilities the evidential requirements were met. Where necessary, it would be possible for Redress Scotland to invite oral representations from the next of kin applicant. Further information on oral representations can be found here.

Previous payments

81. If the next of kin, the survivor of abuse, or their estate, have previously received, or are awaiting, payments in relation to the abuse eligible under the redress scheme, this amount will be deducted from the next of kin payment of £10,000 prior to making any award. Previous payments include:

• court awarded damages (these will generally be from care providers or local authorities)
• out of court settlements (as above, these will generally be from care providers or local authorities)
• payments from the Criminal Injuries Compensation Authority (CICA)
• payments from the Advance Payment scheme,
• and other ex-gratia payments.

82. Deductible payments of £10,000 or above would therefore reduce any redress payment to zero. We would strongly encourage next of kin to contact their case worker to discuss previous payments if they have any concern that the payment could potentially result in a nil payment under redress.

Convictions for serious offences

83. There is a legitimate public interest justification in being able to consider restricting the use of public funding, in relation to the making of redress payments under the scheme, in respect of those who have been convicted of serious criminal offences. For this reason, next of kin are required to provide information on any relevant previous convictions held by them and the deceased survivor. This requirement applies to all applicants to the redress scheme.

84. The next of kin must provide documentation and disclose any criminal convictions that they have, which are subject to disclosure as part of the redress application process. These are convictions for murder, rape and violent or sexual offences for which they were sentenced to a period of imprisonment of 5 years or more. Further guidance can be found in the guidance on applicants with convictions for serious offences.

85. The next of kin should, to the best of their ability and knowledge, provide documentation and/or disclose convictions that the deceased survivor had, for the serious offences set out in section 60 of the Act and noted above. We understand that official records of previous convictions may be difficult to access for a deceased survivor. We would stress that the requirement is for next of kin to confirm the position to the best of their ability, knowledge and belief. Further information can be found in the guidance on applicants with convictions for serious offences.

86. For any next of kin who has concerns as to whether the rules around previous convictions apply to their application, we would strongly encourage contact with a case worker at the earliest opportunity.

87. Where after consideration by Redress Scotland under section 60, a next of kin applicant has been precluded from receiving a next of kin payment due to their previous convictions, the right to apply on the basis of being specified next of kin, is not passed on to the next group, or individual. For example, where a spouse has been precluded from receiving a next of kin payment due to a conviction for a serious offence, the opportunity to apply for a next of kin payment cannot then be passed on to the children of the deceased survivor.

88. The same principle applies in the case of multiple child applicants. Should one child be precluded from receiving a payment, their share would not then transfer to the other eligible children.

Waiver

89. As with all other applicants to the scheme, the next of kin applicant is required to sign a waiver at the point of accepting an offer of payment. It is strongly recommended that all applicants to the scheme, including next of kin applicants, obtain independent legal advice before signing the waiver. The costs of this legal advice will be funded by the Scottish Government. Further information on the payment of legal fees can be found in the relevant guidance.

Support and expenses

90. Next of kin applicants will have access to support throughout the application process and an apology from Scottish Government for the abuse suffered by children in care in Scotland.

91. As with other applicants, next of kin applicants are strongly encouraged to seek independent legal advice before accepting a redress payment and signing a waiver. Funding is available for this and more information can be found in the guidance on payment of legal fees.

92. Next of kin applicants may also be able to seek reimbursement of certain costs associated with their application. More information can be found in the guidance on reimbursement of costs incurred.

Information for child applicants

93. Applicants under the age of 18 years may apply to the scheme as next of kin. Where this happens, a case worker will get in touch with the applicant to ensure they have appropriate support. Applicants under the age of 18 will also have access to practical and emotional support through the redress scheme.

94. The Act provides, under section 51, discretion to Redress Scotland in determining the most appropriate payment arrangement for a child applicant. Upon determination of a successful application, Redress Scotland is permitted to direct payment in full, by instalments or to defer payment, in whole or part, until after the child has reached 18 years of age. Any decision reached by Redress Scotland is subject to review by the applicant, should they disagree with the terms of payment suggested. Further information on payments to children can be found in the relevant guidance.