Financial redress for historical child abuse in care: consultation analysis

10. Next-of-kin payments (Q31–Q34)

10.1 The consultation paper noted the intention for the redress scheme to include provision for next-of-kin payments for surviving spouses and children of deceased individuals who would have met all the eligibility criteria for a redress payment. The purpose of such payments was to acknowledge the fact that the individual who experienced abuse had passed away before the financial redress scheme was in place. There would be no attempt to assess the experience of the deceased individual or the impact of the abuse on surviving family members. As such a flat-rate payment was proposed.

10.2 Section 1.5 of the consultation paper included four questions on next-of-kin payments asking for views on the proposed approach to be taken, the inclusion of a ‘cut-off date’ for eligibility for payments, evidential requirements for applications and the appropriate payment level, relative to a Stage One redress payment.

Question 31: What are your views on our proposed approach to allow surviving spouses and children to apply for a next-of-kin payment?

Question 32: We are considering three options for the cut-off date for next-of-kin applications (meaning that a survivor would have had to have died after that date in order for a next-of-kin application to be made). Our proposal is to use 17 November 2016.

• 17 December 2014 – the announcement of the Scottish Child Abuse Inquiry. [Yes / No]
• 17 November 2016 – the announcement of the earlier consultation and engagement work on the potential provision of financial redress [Yes / No]
• 23 October 2018 – the announcement that there would be a statutory financial redress scheme in Scotland [Yes / No]

What are your views on which date would be most appropriate?

Question 33: We propose that to apply for a next-of-kin payment, surviving spouses or children would have to provide supporting documentation to show that their family member met all the eligibility criteria. What forms of evidence of abuse should next-of-kin be able to submit to support their application?

Question 34: What are your views on the proportion of the next-of-kin payment in relation to the level at which the redress Stage One payment will be set in due course? [25% / 50% / 75% / 100%]

Please explain your answer.

There was widespread support for next-of-kin payments. Respondents said such payments were ‘fair’ or ‘appropriate’, and that next-of-kin were ‘entitled’ to payments that would otherwise have gone to the now deceased victim / survivor; would recognise the significant impact of abuse suffered on whole families; and would acknowledge the suffering of the deceased family member and, provide closure for next-of-kin. Organisations in particular said that next-of-kin provision was in line with standard legal principles and the rules of other schemes.

Key points

• Less often respondents said such payments were not compatible with the purpose and principles of the redress scheme, or that redress should only be for those who had been directly abused, or not merited for deaths that may have taken place some time ago.
• Most respondents endorsed the proposal to make payments to spouses and children. However, respondents also noted potential problems related to taking account of complex family relationships and evidencing such claims, and stressed the need for clear scheme rules to deal with these issues.
• There was no clear consensus on a cut-off date for next-of-kin applications. However, 17 December 2014 was the option that attracted most support (42%), with respondents noting that this date was aligned with the announcement of the Scottish Child Abuse Inquiry, and would maximise the number of eligible individuals. However, some thought there should be no cut-off date, or favoured an earlier cut-off date, with 17 December 2004 (when the then First Minister issued an apology on behalf of the Scottish Government) commonly suggested.
• Respondents largely agreed that next-of-kin should have to provide evidence of when and where the deceased was in care; some also said claimants should have to provide evidence related to the abuse suffered, or evidence of identity and / or relationship with the deceased. Those who commented on the forms of evidence that should be required mainly said that next-of-kin should have to provide the same evidence or documentation as victims / survivors, or put forward a wide range of specific suggestions reflecting suggestions made relating to evidence requirements at other questions.
• Just over half of respondents (56%) thought that next-of-kin were entitled to receive the full sum of money (i.e. 100%) that would have gone to their relative had they still been alive. Respondents said this level of payment recognised the significant impact such abuse had on both victims and their families. Those favouring lower proportions (25%, 50% or 75%) all tended to say that their preferred option recognised that next-of-kin had not suffered the abuse directly and / or was sufficient to recognise the abuse suffered by the victim / survivor and the impact this might have had on the wider family.

A note about the responses

10.3 Questions 31 to 34 are addressed in turn in this chapter. However, it should be noted that there was a degree of cross-over in the responses to these questions – that is, comments made at one of the questions in this section were also often relevant to one or more of the other questions. This was particularly the case with regard to Question 31, for which respondents offered comments relating to cut-off dates and other timescale related issues, evidence requirements and the nature and scale of payment to be made. In order to avoid repetition, comments are, as far as possible, considered only at the most appropriate question.

10.4 The comments also suggest there was a number of different interpretations and understandings of what a next-of-kin payment is. Some respondents appeared to understand next-of-kin payments to be a process for those who wished to continue claims started by a victim / survivor before they died, and endorsed this option. In other cases, respondents said that such payments should be restricted to (i) cases where the victim / survivor had previously initiated a claim (or had good reason for not having done so) or, alternatively, to (ii) cases where the victim had not already made a claim. There was also a view that next-of-kin should be able to pursue a claim on behalf of a survivor while they were still alive.

Allowing surviving spouses and children to apply for a next-of-kin payment (Q31)

10.5 The first question in this section (Question 31) was an open question (with no initial tick-box question) which asked for views on the proposed approach to allowing surviving spouses and children to apply for a next-of-kin payment.

10.6 Altogether, 230 respondents (189 individuals and 41 organisations) commented at Question 31. More than half offered views on the principle of next-of-kin payments, while around a third commented on who should be eligible for such a payment, with some offering both types of comments. The sections below look at these two sets of comments in turn.

10.7 Note that it was common for individuals to provide only brief answers to this question without explaining their views any further – particularly where they were indicating endorsement of or agreement with the Scottish Governments proposal (‘Yes’, ‘I agree’, etc.). However, in these cases, it was not necessarily clear if respondents were agreeing with the principle of next-of-kin payments, the eligibility of spouses and children, or some other aspect of the ‘approach’ proposed by the Scottish Government.

The principle of next-of-kin payments

10.8 As noted above, more than half of respondents offered views on the principle of next-of-kin payments. The responses indicated a high degree of support amongst both individuals and all types of organisation for such payments, and there was only occasional opposition to – or reservations or more mixed views about – the proposal. The different viewpoints are discussed below.

Support for next-of-kin payments

10.9 Respondents offered a number of different reasons for supporting next-of-kin payments, sometimes citing these in combination. These included the following.

• Some respondents saw such payments as ‘fair’ or ‘appropriate’, or they said that next-of-kin were ‘entitled’ to redress payments. Respondents said that next-of-kin would have benefited had the victim of abuse still been alive and made a redress claim, and some individual survivors explicitly stated that they would want their families to be able to pursue claims and get financial assistance from the scheme if they were unable to do so. Some also said that the historical nature of the abuse meant that many victims would be deceased before the scheme came into force and would not, therefore, have the opportunity to seek redress in their own right. It was also suggested that, in some cases, abuse might only come to light after a person had died.
• Some respondents thought next-of-kin payments would recognise the significant impact (psychological, emotional, material) of the abuse suffered by victims / survivors, and of the death of the abused individual, on whole families (with some organisations referring to the concepts of ‘secondary victimhood’ and ‘inter-generational trauma’).
• Others suggested such payments would acknowledge the suffering of a deceased family member (i.e. the victim of abuse) and provide closure for their next-of-kin.

10.10 Organisations in particular said that that next-of-kin provision would be in line with standard legal principles and other schemes which allow family members or the estates of a deceased person to pursue claims or seek compensation in personal injury cases.

10.11 However, alongside this broad support, some respondents expressed a degree of concern about how such claims might be evidenced. Very occasionally, organisations indicated that provision of next-of-kin payments should depend on the availability of sufficient evidence or the establishment of an appropriate basis for assessing eligibility.

Opposition to or reservations about next-of-kin payments

10.12 Those opposed to next-of-kin payments offered various reasons for this view. In the main, respondents did not think such payments were justified: they questioned whether such payments were compatible with the purpose and principles of the redress scheme, as set out in the consultation paper. Some thought that redress should only be for those who had been directly abused and was not merited for deaths that may have taken place some time ago. Others argued that a next-of-kin system would be too complicated or difficult to manage, or present too many practical problems – e.g. relating to evidencing claims or the treatment of multiple next-of-kin. Occasionally, respondents also expressed concern that such claims had the potential to be divisive within families, raised the risk of exploitative or fraudulent claims, would be too costly, or represented poor use of money.

Mixed views about next-of-kin payments

10.13 In a few cases, respondents offered mixed views on the idea of next-of-kin payments, recognising arguments put forward by those who supported such payments and those who opposed them.

Views on who should be eligible for a next-of-kin payment

10.14 Both individuals and organisations commented on how ‘next-of-kin’ might be defined. Most commonly, respondents endorsed the Scottish Government’s intention to extend payment to spouses and children. However, others offered views on who should or should not be included within the definition, or how different family members might be prioritised. There were calls for next-of-kin to be defined in various ways: for example, including children but not spouses, or spouses but not children; children first, then spouse or other nearest relative; current spouse only / first spouse only; unmarried partners; and civil partners. There were also a few calls for the definition to include siblings.

10.15 In some cases, respondents also thought the scheme should consider the ‘quality’ of relationship between the deceased victim / survivor and their next-of-kin by, for example, excluding estranged family members or taking account of the wishes of the deceased individual (for example, as expressed in a will).

10.16 The consultation paper noted that assessing such claims may not always be straightforward, particularly where family circumstances are complex. In this respect, some respondents, particularly those representing organisations, stressed the need for a clear next-of-kin definition, and for clarity about how this would be applied in situations such as (i) those involving complex family relationships with step-children, non-biological children, kinship care arrangements, etc.; (ii) those in which there are no surviving children / spouse; or (iii) when the defined next-of-kin themselves die before a claim is paid – some thought that in such cases the system should allow the claim to pass to any surviving heirs. One view was that there should be the option of arbitration in complex cases.

10.17 Some respondents ­­– individuals in particular –­ mentioned factors additional to simple familial relationship which might determine eligibility to receive a payment. Most commonly, such respondents said that eligibility should take account of individual circumstances, and suggested that payment should depend on (i) whether the next-of-kin had been affected by the experience of their deceased family member, or (ii) the extent to which they had been affected. Less often, it was suggested that anyone responsible for, complicit with, or suspected of abusive behaviour should be excluded from eligibility.

Cut-off date for next-of-kin applications (Q32)

10.18 The consultation paper explained that in other countries schemes offering next-of-kin payments have included a ‘cut-off’ date – that is, a date after which a survivor must have died for next-of-kin to be eligible for a payment. The consultation paper said that this type of approach may be appropriate for the scheme to be introduced in Scotland, and Question 32 asked for views on three possible dates:

• 17 December 2014 – the date that the Scottish Child Abuse Inquiry (SCAI) was announced
• 17 November 2016 – the date that the earlier survivor consultation and engagement work was announced
• 23 October 2018 – the date on which it was announced that there would be a statutory financial redress scheme in Scotland.

10.19 Altogether, 197 respondents (173 individuals and 24 organisations) answered this question. However, almost a third of respondents selected multiple dates: 49 respondents (25%) answered ‘no’ to all three of the dates offered; a further 15 (8%) ticked ‘yes’ to more than one of the dates, and one respondent ticked both ‘yes’ and ‘no’ in relation to the third date (23 October 2018).

10.20 The analysis shown in Table 10.1 relates to the 132 respondents (113 individuals and 19 organisations) who ticked only one of the options offered. The findings show that there was no clear consensus about the cut-off date for next-of-kin applications, although 17 December 2014, selected by two-fifths of respondents (42%), was the date that attracted the highest level of support. A third of respondents (33%) favoured 23 October 2018, and a quarter (26%) favoured 17 November 2016. The pattern of response was similar for both organisations and individuals.

Table 10.1: Q32 – Which of the following dates would be most appropriate?

Respondent type	17 December 2014		17 November 2016		23 October 2018		Total
	n	%	n	%	n	%	n	%
Organisation	8	42%	5	26%	6	32%	19	100%
Individual	47	42%	29	26%	37	33%	113	100%
Total	55	42%	34	26%	43	33%	132	100%

Percentages may not total 100% due to rounding.

10.21 Altogether, 174 respondents commented at this question (141 individuals and 33 organisations). However, the comments suggested a degree of confusion amongst individuals. Some respondents appeared to have misunderstood how the cut-off date would operate or appeared to think that the question was asking for views on the closing (or opening) date for the submission of claims. Views on this latter point are covered in the analysis at Question 27. These misunderstandings present difficulties in interpreting some of the comments made.

10.22 Comments provided by respondents selecting each of the options are summarised below. It should be noted, however, that few respondents elaborated on their response in any extensive way, with organisations more likely than individuals to do so.

• Those selecting 17 December 2014 offered two main reasons for their view: (i) they agreed that aligning the cut-off date with the announcement by the Scottish Government of the SCAI was appropriate, and referred to the publicity surrounding that announcement and the symbolism and momentum associated with the launch of the SCAI, and / or (ii) they thought this date was the most inclusive option offered – their objective was to see as many individuals as possible covered by the scheme, including those who had missed out on the opportunity to apply to the already established Advance Payment Scheme.
• The main reason offered by those selecting 17 November 2016 was that this was the point at which the Deputy First Minister announced that he wanted to hear wider views on the potential provision of financial redress – prior to that there would have been no expectation of redress. Others said this date was ‘fair’, ‘appropriate’ or ‘proportionate’.
• The main reason offered by those selecting 23 October 2018 was that this was when the provision of financial redress was confirmed and became a realistic option for next-of-kin. There was also a view that the adoption of this date as a cut-off would ensure that any such claims would follow relatively soon after the death of the abuse victim.

10.23 Those selecting none of the options offered the following main views:

• There should be no cut-off date of the type proposed as there was no justification for excluding next-of-kin whose relatives met all other eligibility criteria simply because the individual had died some time ago. A cut-off date was seen as contrary to the purpose of the redress scheme.
• The cut-off date should be set at 2004 (or, more specifically, 17 December 2004), when the then First Minister first issued an apology on behalf of the Scottish Government (this was also the date proposed in the consultation paper as the cut-off date for the definition of ‘historical’ abuse). Alternative earlier and later dates were also proposed occasionally by respondents.

10.24 Additionally, amongst those who did not select a date, there was a view that the dates offered were somewhat arbitrary. Different approaches were proposed which were seen to be more in line with standard ‘time bar’-type rules allowing claims within a set period after the death of an individual.

Evidence to support a next-of-kin application (Q33)

10.25 The Scottish Government proposed that, to apply for a next-of-kin payment, surviving spouses or children would have to provide supporting documentation to show that their family member met the eligibility criteria for a redress payment. Question 33 was an open question (with no initial tick-box question) seeking views on the forms of evidence next-of-kin should be able to submit to support their application.

10.26 Altogether, 195 respondents provided comments at Question 33 (160 individuals and 35 organisations). However, respondents answered this question in different ways. Some commented on what claimants should be required to demonstrate, while others suggested specific forms of documentation or evidence that should be required. Individuals were more likely to concentrate on the former, while organisations were more likely to discuss the latter. Comments on what claimants should be required to demonstrate and the forms of evidence they should be able to submit are covered in the two sections below. A separate section covers other comments relating to evidence requirements.

What claimants should be required to demonstrate

10.27 Respondents, individuals in particular, commonly discussed what claimants should be required to demonstrate. Views here largely endorsed the Scottish Government’s proposals with respondents saying that next-of-kin should have to provide evidence of when and where the deceased was in care; some also said claimants should have to provide evidence of the abuse suffered, or evidence of abuse having occurred in the relevant institution. Respondents also commonly referred to the need to provide evidence of identity and / or relationship with the deceased.

10.28 Occasionally, respondents also said that claimants should be required to: (i) demonstrate that the deceased had previously taken action with respect to the abuse – either having reported it in some ‘official’ way, including to the SCAI or the NCF, or having initiated a claim for redress; or (ii) provide a statement as to how they became aware of the abuse.

The forms of evidence claimants should be able to submit

10.29 Fewer than half of respondents commented on the forms of evidence next-of-kin should be able to submit to support their application.

10.30 For the most part, those who commented either (i) said that next-of-kin should have to provide the same evidence or documentation as victims / survivors, or (ii) put forward a wide range of specific suggestions.

10.31 The suggestions for specific evidence or documentation included the following:

• Care provider and other official records showing that the individual was in care
• Health (including mental health and psychological) records
• Social work and support agency records
• Records from previous criminal investigations, or SCAI and NCF proceedings
• Contemporaneous records of abuse
• Oral and written statements from the next-of-kin and other family members, or previously given by the victim / survivor
• Third-party witness statements
• Personal papers, letters, photographs, etc.
• Birth, marriage and death certificates, passports, benefit and pension statements.

10.32 Some respondents offered more general views on the forms of evidence claimants should be able to submit, ranging from ‘anything available’, to ‘same as for a civil legal claim’.

Other comments relating to evidence requirements

10.33 A range of respondents – both individuals and organisations ­– believed there would be challenges for next-of-kin in tracing and obtaining relevant records, and that these might be compounded by requirements under the General Data Protection Regulation (GDPR), and the fact that victims might not have discussed their in-care experience in detail before their death.

10.34 Some thought the evidential ‘bar’ should therefore be set low, or suggested flexibility in how requirements might be met. Others said that provision should be made for this within the scheme via guidance and assistance with obtaining required evidence. There was a specific suggestion for the redress scheme to have the power to authorise disclosure of information protected by GDPR requirements.

10.35 However, there was a contrasting view favouring more robust evidential requirements for next-of-kin payments, with respondents stressing the need for (i) verification of the evidence provided and the entitlement of the claimant, (ii) credible or reliable evidence sources, (iii) corroboration of evidence from more than one source, and (iv) clear evidence of abuse rather than simply of the deceased person having been in care.

Level of next-of-kin payments (Q34)

10.36 The consultation paper explained that the process associated with an application for a next-of-kin payment would not involve any attempt to assess the individual experience of the person who was now deceased, nor the impact of that person’s experience on surviving family members. Thus, a next-of-kin payment would be a flat-rate payment – calculated as a proportion of the redress Stage One payment – which was intended to recognise and acknowledge the harm done to the deceased individual whilst they were in care. Question 34 asked for views on the level that next-of-kin payments should be set at, relative to Stage One payments. Four choices were given: (i) 25%, (ii) 50%, (iii) 75%, and (iv) 100%.

10.37 Table 10.2 shows that over half (56%) of the 187 respondents answering this question thought that next-of-kin payments should be the same as a Stage One payment for survivors (i.e. they should be set at 100% of the Stage One payment). Both organisations (50%) and individuals (57%) were more likely to select this option than any of the other three options. The next most popular option was that of setting next-of-kin payments at 50% of the Stage One payment, selected by a third of organisations (32%) and a fifth (19%) of individuals.

Table 10.2: Q34 – What are your views on the proportion of the next-of-kin payment in relation to the level at which the redress Stage One payment will be set in due course?

Respondent type	25%		50%		75%		100%		Total
	n	%	n	%	n	%	n	%	n	%
Organisation	3	14%	7	32%	1	5%	11	50%	22	100%
Individual	18	11%	32	19%	21	13%	94	57%	165	100%
Total	21	11%	39	21%	22	12%	105	56%	187	100%

Two individuals chose both 25% and 50%. These responses are not shown in the table above.

10.38 Altogether, 175 respondents (145 individuals and 30 organisations) provided additional comments at this question. The comments provided are summarised below.

Views on different percentage options

10.39 The main reasons given by those selecting each of the options were as follows:

• Those selecting 100% argued that next-of-kin were entitled to receive the full sum of money that would have gone to their relative had they still been alive. They also thought this level of payment recognised the significant impact such abuse had on both victims / survivors and their families.
• Those selecting 25%, 50% and 75% tended to give the same two main reasons for their preferred option: they said that the level was appropriate because (i) it recognised that the next-of-kin had not suffered the abuse directly and / or (ii) it was sufficient to recognise the abuse suffered by the victim / survivor and the impact this might have had on the wider family. Those selecting 50% and 75% tended to give greater emphasis to the experience of next-of-kin – both while the abused individual was alive and subsequent to their death. A few in this group also thought a payment of less than 100% was appropriate given the likely time since the death and the potentially limited evidence base for such claims. There was also a view that a 50% payment would be in line with other types of compensation payment.

10.40 One alternative suggestion for a payment level of 66%, which was described as large enough to make a significant difference to the recipient, while still being sufficiently distinct from the full payment received by victims / survivors themselves.

Views of those who did not select a percentage option

10.41 There were two main groups among those who did not select a percentage:

• Respondents who thought the level of payment should depend on the circumstances of the case (e.g. the nature of the relationship and the extent of any impact on the next-of-kin and the number of next-of-kin) and / or thought this should be a legal decision taken on a case-by-case basis.
• Respondents who used their comments to restate their general opposition to next-of-kin payments (note that some opposed to next-of-kin payments selected 25%, the lowest proportion offered in the question).

10.42 However, a small group of respondents had reservations about offering any view on the percentage options offered, saying that:

• This should be an issue for legal / financial people, rather than those affected by the redress scheme
• This would depend on the intended purpose of payment
• There was no rationale provided for the different options
• It was hard to comment without knowing what the Stage One payment would be.

Other issues raised: the treatment of multiple next-of-kin

10.43 In addition to the views noted above on the different percentage options, some respondents raised the issue of cases involving multiple next-of-kin and of how claims would be processed, and payments calculated and attributed in these circumstances. Most commonly, respondents favoured a single application per family with the sum awarded divided equally among all eligible family members. However, there were calls for clarity on this issue.

Other comments on the operation of next-of-kin payments

10.44 Across this group of questions as a whole (Questions 31 to 34), respondents made a number of more general comments related to the operation of next-of-kin payments, as follows:

• Organisations were particularly likely to comment on the potential challenges of designing and operating a system for next-of-kin payments and the need to resolve issues such as those relating to the definition of next-of-kin, eligibility, the treatment of multiple next-of-kin, and evidential requirements.
• Some respondents stressed the importance of any system to be clear, simple and straightforward for claimants, and operated in a fair and honest way.
• Some respondents, organisations in particular, called for the approach taken to draw on the rules and conventions in place in other areas of legislation and legal practice related to the pursuit of compensation and damages, and succession and inheritance. Specific mention was made of the Damages (Scotland) Act 2011, the Succession (Scotland) Act 2016, the Prescription and Limitation (Scotland) Act 1973, and the UK-wide scheme introduced to compensate those affected by mesothelioma.
• There was a view that the redress scheme as a whole should prioritise victim / survivor claims before dealing with next-of-kin claims.
• The benefit of learning from other schemes was noted – the Irish scheme which covered two different situations of dying before or after making claim was particularly mentioned.