National Assistance (Assessment of Resources) Regulations 1992 - Child Migrant Trust amendments: equality impact assessment

Equality Impact Assessment Record

Title of policy/ practice/ strategy/ legislation etc.: Amendments to The National Assistance (Assessment of Resources) Regulations 1992 in respect of the Child Migrant Trust

Minister: Minister for Mental Wellbeing and Social Care

Lead official: Deirdre Henderson, Adult Social Care Charging

Officials involved in the EQIA

Name: Neil Grant

Team: Social Care Analytical Unit

Directorate: Division: Team:

Social Care and NCS Development Directorate, Improving Standards and Quality Division

Is this new policy or revision to an existing policy?

Revision of existing legislation

Screening

1. The Scottish Government is mindful of its obligations under the Equality Act 2010 and the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012. Section 149 of the Equality Act 2010 places a general duty (known as the Public Sector Equality Duty (PSED) on public authorities to have due regard to: eliminating unlawful discrimination, harassment and victimisation; advancing equality of opportunity between people who share a Protected Characteristic and those who do not; and fostering good relations between people who share a Protected Characteristic and those who do not. The Scottish Government recognises that while the amendment may positively impact on people with one or more of the of the Protected Characteristics, the introduction of the amendment may also have a negative impact on one or more of the Protected Characteristic groups. Where any negative impacts are identified, we aim to mitigate/eliminate these. We are also mindful that the equality duty is not just about negating or mitigating negative impacts, as we also have a positive duty to promote equality. We aim to do this through provisions contained in the Regulations, as amended, or by current support and guidance available.

2. For the purposes of this document the following screening questions were considered.

Will the amendment:

• Eliminate unlawful discrimination, harassment and victimisation
• Advance equality of opportunity
• Foster good relations

3. While data is not available for the people applying to the Child Migrant Trust, as this is not recorded, it would seem likely that the amendment would impact the equality experience for people impacted by child migration in the designated time period, and to the countries involved in the scheme.

Amendment Aim

4. The UK Government set up a payment scheme for former British child migrants, who were separated from their families and sent overseas as part of the UK Government's historic participation in child migration programmes^[1].

5. The scheme was set up after a recommendation made in the Independent Inquiry into Child Sexual Abuse (IICSA) interim report^[2] and its report on child migration programmes^[3], which were both published in spring 2018. Both reports related to child migrants from England and Wales. In addition, in Scotland, the Scottish Child Abuse Inquiry produced a report, Child Abuse and Scottish Children Sent Overseas through Child Migration Schemes in 2021^[4].

6. Compensation awarded to former child migrants or their beneficiaries will be exempt from social care support means tests for those now living in Scotland. This will ensure that survivors of childhood migration from the UK, or their beneficiaries, in residential care can retain the full value of these payments.

7. This contributes to the National Performance Framework outcome to respect, protect and fulfil human rights and enable people to live free from discrimination.

Who will it affect?

8. The National Assistance (Assessment of Resources) Amendment (Scotland) Regulations 1992 concern the assessment of the ability of a person to pay for certain accommodation arranged by local authorities, including care homes. They include details of certain income and capital to be disregarded from the assessment of a resident's liability. An amendment made to specifically include the disregard of payments from the Child Migrant Trust would benefit recipients who are living in or plan to move into care homes, who are subject to financial assessments for care charges.

9. All eligible former British child migrants will be able to apply for a payment, under a scheme set up by the UK Government. The payments are being made in respect of the harm done to eligible former British child migrants in being separated from their families and sent overseas as part of the UK Government's historic participation in child migration programmes. Payments will be made to all eligible former British child migrants, regardless of whether they suffered abuse. Each eligible former British child migrant will receive a payment of £20,000.

10. The scheme is open to any former British child migrant who was alive on 1 March 2018 or the beneficiaries of any former child migrant who was alive on 1 March 2018 and has since passed away.

11. The payment will be payable to all applicants regardless of their individual circumstances, including the receipt of payments received from other governments or through private legal action. To apply, the applicant must have been sent from the following countries before 1971 when they were below the age of 16:

• England
• Scotland
• Wales
• Northern Ireland
• the Channel Islands
• the Isle of Man

12. An applicant must have been sent by a voluntary care agency (or local authority), and they must not have been accompanied or sent by or sent to live with their parent(s), adult relative(s) or guardian(s), to:

• Australia
• Canada
• New Zealand
• the former Rhodesia (now Zimbabwe)

13. A beneficiary can claim directly with the appropriate legal documentation to support their claim. Alternatively, a claim can be made on their behalf by any person with a legal right to administer the estate of the former British child migrant. In the UK, except for Scotland, the appropriate legal documentation would be one of the following:

• a grant of probate
• where the claimant has been appointed the legal personal representative of the deceased, the 'letters of administration'
• letters of administration with will annexed (where the named executor is unwilling/unable to act)
• for Scotland, the equivalent of both grants of probate and letters of administration is 'confirmation', which is confirmation by the relevant court of who has been appointed to administer the estate
• for countries outside the UK, claimants will need to show the equivalent documentation

14. The payment scheme is not open to those who migrated as part of any voluntary family, single parent or youth migration scheme.

15. The scheme does not apply to those who:

• travelled on the one or two parent schemes to Fairbridge in Australia in the late 1950s, 1960s or 1970s
• were sent under a youth migration scheme (such as the Big Brother Movement) and placed immediately into employment on arrival (see definition below)
• travelled on an assisted immigration scheme
• were sent to relatives living abroad
• were evacuees during the war years
• were sent from Malta

16. A youth migration scheme is defined as a scheme for young people, the primary purpose of which was for that young person to take up employment or employment-related activities (for example, an apprenticeship or vocational training scheme) in the country to which they migrated.

17. Applicants will not be eligible to receive a payment under this scheme if they have already received a payment under any other UK scheme (in Northern Ireland, Scotland or Wales) in recognition of their experiences or status as a British child migrant. They must inform the Child Migrants Trust in their application of any payments that they have received from UK governments and confirm that they have not received a payment for the same reason from another scheme.

18. The boys and girls with whom the scheme is concerned were drawn from those commonly referred to as children 'in need' or 'deprived of a normal home life'. Most had been taken into care because of the inability of their parents to maintain for them an adequate home life, particularly because of family poverty, or the death, absence or apparent neglect of their parents. Most child migrants had one parent living and many had both at the moment of migration. They may be categorised as follows.

19. First, there were children who, for whatever reason, had not been living with their natural parents or with a relative or a legal guardian but had been taken into the care of public authority institutions, at various times called workhouses, poorhouses, orphanages or children's homes, and also reformatories and industrial schools, later known as approved schools. Few children who had become the responsibility of such public authorities in Scotland were selected and sent overseas, in this respect paralleling practice in England and Wales, though in Scotland as a proportion of children in local authority care even fewer were sent.

20. Second, in Scotland, as again in England and Wales, rather more children had become the responsibility of voluntary organisations run by churches and other charities, variably called refuges, homes or orphanages, and they provided from among those in their care the bulk of child migrants. Only a minority of children accommodated by public authorities or by most voluntary organisations were subsequently selected for emigration to households or institutions overseas. Arrangements for the migration and resettlement of any child selected by a local authority were actually effected by a voluntary society acting on its behalf.

21. Third, the parents of some children, hoping to provide their offspring with 'better' opportunities overseas than those apparently available in the UK, had requested those few particular voluntary societies, such as Fairbridge, whose only mission was to organise the emigration of children to arrange for their overseas resettlement. Under all these schemes, child migrants were escorted overseas by representatives of the sending organisations but were unaccompanied by parents or relatives^[5].

22. The Scottish Child Abuse Inquiry has a database of 1,354 young migrants sent overseas from Scotland. Organised by name it provides details of date of birth, sending institution, date of migration (and sometimes name of ship), age at migration, country of destination, and receiving institution. The earliest recorded year of departure is 1877 and the last 1965. The youngest recorded were two, three, four and five years old. The busiest years were between 1947 and 1956. Both Inquiries suggest that record keeping and gaining consent from parents or other family was very inconsistent and that many children will have had no idea what lay before them, or any information on their birth families in the UK. There was even a documented case of a mother who claimed that she had not agreed to her child being migrated when she signed the consent form, thinking it was for another purpose.

23. Although the migration of children to British communities abroad started in the 1880s, the majority of the people impacted by the policy and able to claim compensation will have been migrated after 1945. Post-War child migration from England and Wales to New Zealand involved the Royal Overseas League sending around 549 children into foster care. From 1947 to 1965, eight approved organisations migrated a total of 3,170 children to Australia. The peak years for child migration to Australia were 1947 and 1950 to 1955. Around 400 children in total were sent by local authorities, a small percentage of the total number of children in local authority care. Overall, the number migrated to Australia during this time fell well short of the 50,000 unaccompanied children whom the Australian Commonwealth Government had planned to receive immediately Post-War. The IICSA heard expert evidence about the enthusiasm of the Australian authorities to use child migration to increase the white population (and therefore labour capacity and future prospects for the economy) in Australia. Post-War child migration to Southern Rhodesia involved 276 children being sent to the Rhodesia Fairbridge Memorial College^[6].

24. The IICSA reported 'Witnesses told us of their experiences of brutalising regimes that involved physical and sexual abuse, poor living conditions, poor health care, and poor medical and educational provision. It is important, when considering the incidents of child sexual abuse, that we appreciate the full range of appalling conditions in which these children lived'.

25. In 2010, Martin Narey, the then CEO of Barnardo's, issued a public apology in response to the apology given by then Prime Minister Gordon Brown. In her written evidence to the IICSA, on behalf of Barnardo's, Ms Clarke recognised the "significant and irrevocable damage" done to some individuals by the child migration programme. She accepted that "the policy of child migration was misguided and wrong" but stated that "it was not seen as wrong at the time", and was done with good intentions and in accordance with government policies.

26. While many children were migrated to provide labour for the farms and private homes of the countries that they were sent to, certain groups of children were excluded for migration as countries would not accept disabled or black children, for example. One of the earlier motives of the schemes had been to maintain the racial unity of Britain's Empire^[7]. This means that children who either were or appeared to be white would have been impacted by this policy more than children of colour. In addition, evidence from the Scottish Inquiry shows that some disabled children were presented as non-disabled to meet quotas from the receiving institutions, meaning that disabled children may have been worse off in coping with the harsh life ahead without any support.

27. The inquiries show that a large number of Christian organisations took part in the migration schemes, wishing to ensure that the Christian values and faith were retained in the children, particularly if they were seen to come from disreputable and poorer backgrounds. Therefore, it is fair to say that Christian children were more impacted by this policy than children of other religions, or none.

28. Evidence from the Scottish Inquiry highlights that a farm labour shortage was the biggest need in the receiving countries, therefore it was more common that boys were migrated than girls. Girls were generally trained to work in the private homes of the more affluent. In some institutions girls and boys stayed in mixed facilities. Both inquiries show that along with the abuse by the adults in the lives of the children, some older boys also abused younger boys and girls. For girls who became pregnant, which was more common in some institutions that others, the shame and destitution that lay before them was probably disproportionately disadvantageous in starting their lives in a country where they did not know anyone.

29. It is likely that a sizeable proportion of applicants to the Child Migrant Trust will have had a physical or mental health impairment, possibly as a result of their abuse in the institutions, or witnessing it. In addition, those in need of residential care may be more likely to be have an impairment or long term health condition, than in society generally.

30. Disregarding payments from the scheme is expected to have a particularly positively effect on older people, disabled people, people brought up in the Christian faith, white people, men, and women who had unplanned pregnancies early on in life. This would be through having a positive financial effect which could advance equality of opportunity. It could foster good relations by vindicating the innocence of people who may have been branded liars or criminal by institutions who were protecting the reputation of their staff and institutions. It is likely to play a part in healing the pain caused to a generation of adults who were not believed when they reported any abuse, and who may not have ever had contact with their birth families after migration.

31. It is also possible that some applicants, or the child migrants that they are claiming for, will have or had intersectional Protected Characteristics, and may therefore have multiple impacts, which have not been able to be recorded.

32. In Scotland, on 31 March 2021, there were 40,632 registered places in adult care homes, of which there were an estimated 29,317 long stay residents in care homes for older people (65 and over)^[8].

33. It is reasonable to assume that the migrated children took on the nationality of the country that they were sent to. Taking into account all the above factors, the population size that this amendment might impact would be quite small, given the age of the applicants and that only approx. 0.2% of the population in Scotland are from Canada and approx. 0.2% are from Australia according to the 2011 Census. The numbers are even smaller from the other countries involved in the child migration scheme^[9]. It is not clear what percentage of this number would have been child migrants.

What might prevent the desired outcomes being achieved?

34. If legislation within The National Assistance (Assessment of Resources) Regulations 1992 is not amended to ensure payments by the Child Migrant Trust are disregarded, it may prevent local authorities disregarding any payments made by the Child Migrant Trust when making financial assessments in relation to an individual's residential social care support charges.