Financial redress for historical child abuse in care: consultation analysis

12. Scheme panels (Q45–Q47)

12.1 Part 2.1 of the consultation paper outlined proposals in relation to two key aspects of the redress scheme’s administration: the composition of the Decision-making Panel and the establishment of a Survivor Panel.

Question 45: Do you agree that the Decision-making Panel should consist of three members? [Yes / No] Please explain your answer.

Question 46: Do you agree that the key skills and knowledge for panel members should be an understanding of human rights, legal knowledge, and knowledge of complex trauma and its impact? [Yes / No] Are there other specific professional backgrounds or skills you feel are essential for the Decision-making Panel?

Question 47: We proposed that a Survivor Panel be established to advise and inform the redress scheme governance and administration, ensuring survivor experience of the application process is considered as part of a culture of continuous improvement. Do you agree? [Yes / No] Please explain your answer.

How do you think survivors should be recruited and selected for this panel?

Respondents generally supported a panel of three members (83% overall agreed with this), saying that this would facilitate consensus, or allow majority decisions to be reached; ensure efficient, effective and consistent decision-making; and ensure a spread of knowledge, skills and backgrounds. Individuals who disagreed generally favoured a panel of more than three members.Key points

• There was general agreement (97% overall; 98% for individuals and 90% for organisations) that understanding of human rights, legal knowledge, and knowledge of complex trauma and its impact were key for panel members, with respondents often emphasising the need for specialist knowledge and experience relevant to the issue of in care abuse. Knowledge and understand of the care system and the broad issue of historical abuse, as well as financial matters were also identified as relevant. Individuals often also said that personal qualities such as empathy, compassion, common sense, and commitment to fairness and justice were important for panel members.
• Some individuals called for the Decision-making Panel to include victims / survivors.
• There was a high level of support (96% overall) for the proposed Survivor Panel. Respondents thought the lived-experience of survivors would be ‘invaluable’ to the operation and governance of the scheme. They also thought it was important for survivors to be involved in the redress scheme on principle.
• Respondents mainly favoured recruitment of survivor panel members via a widely advertised and promoted open process involving an initial application and / or interview. Survivor groups were seen as having an important role in promoting the opportunity to be on the panel and encouraging and supporting applicants.
• There was a general view that panel membership should be diverse and representative of the full range of survivor experiences and perspectives.
• Openness, transparency and clarity were seen as important characteristics of the governance and operation of the Decision-making and Survivor Panels.

Decision-making Panel (Q45–Q46)

12.2 The Scottish Government proposed that decision-making in relation to the financial redress scheme should be made by a panel of three suitably qualified people. The Government further proposed that panel members should come from a variety of backgrounds, and identified understanding of human rights, legal knowledge, and knowledge of complex trauma as key skills for members.

Number of panel members (Q45)

12.3 Question 45 asked respondents if they agreed that the panel should consist of three members. Table 12.1 shows that there was strong support for this – with 83% of respondents overall answering ‘yes’. Organisations were almost unanimously in favour of this proposal (with 97% answering ‘yes’). However, a fifth of individuals (20%) disagreed.

Table 12.1: Q45 – Do you agree that the Decision-making Panel should consist of three members?

Respondent type	Yes		No		Total
	n	%	n	%	n	%
Local authority / public sector partnerships	8	100%	–	0%	8	100%
Other public sector organisations	3	100%	–	0%	3	100%
Current or previous care providers	8	89%	1	11%	9	100%
Third sector, including survivor groups	6	100%	–	0%	6	100%
Legal sector organisations	6	100%	–	0%	6	100%
Other organisational respondents	1	100%	–	0%	1	100%
Total organisations	32	97%	1	3%	33	100%
Individual respondents	160	80%	39	20%	199	100%
Total (organisations and individuals)	192	83%	40	17%	232	100%

12.4 Altogether 176 respondents (144 individuals and 32 organisations) offered additional comment on the proposed number of panel members. It was common for respondents to include views here on who should be on the panel, and these comments are covered at Question 46 below.

12.5 As Table 12.1 showed, there was a high level of agreement that the Decision-making Panel should comprise three members. Among those expressing support for this proposal, some (mainly individuals) simply endorsed the proposal – saying, for example, that this was ‘reasonable’ or that three was the ‘best’, ‘optimum’, or ‘right’ number of panel members, or would offer a fair or balanced approach. Others explained their answer further, with individuals and organisations offering broadly similar views. The main points made are summarised below, with respondents arguing that a panel of three would:

• Support decision-making either by facilitating consensus, or allowing a majority decision to be reached
• Ensure decisions were reached in an efficient, effective and consistent way
• Allow for a spread of professional knowledge, skills and backgrounds to be included, and ensure that claims were dealt with in a full and balanced way – though some qualified this by saying that panel members should be supported by appropriate professionals and / or have access to additional specialist advice as required
• Ensure that different views, perspectives and experiences were represented.

12.6 The last two points above were particularly important to individual respondents who thought this would be helpful in considering and understanding specific complex cases.

12.7 Occasionally, respondents also said that a membership of three offered logistical benefits in terms of convening panels, and would reflect practice in other hearings and schemes.

12.8 In some cases, respondents did not comment directly on the proposal for a panel of three, but said it was important that (i) the panel had an odd number of members to allow majority decisions to be reached, or (ii) decisions were not made by a single individual.

12.9 Some who indicated agreement at Question 45 qualified their answer by saying that they regarded three as the minimum number of panel numbers that would be appropriate.

12.10 Relatedly, the main view among respondents (mainly individuals) who disagreed at Question 45 was that the panel should involve more than three people, with five the most commonly suggested alternative number. Those who explained their views further thought this number would allow wider representation, ensure claims were fully considered and understood, and give greater ‘balance’ and fairness to the process. Some also suggested that a greater number of panel members was needed to provide cover in the event of absence. However, it wasn’t clear if these respondents were referring to the option of being able to replace a panel member with a substitute from a wider pool, or whether they thought a panel of five (or more) would still be able to operate effectively if one member was unavailable.

12.11 Finally, some respondents (both individuals and organisations) said the rationale for a three-person panel was not clear. These respondents emphasised the importance of the skills and qualities of panel members rather than the number of members.

Skills and knowledge of panel members (Q46)

12.12 Question 46 asked about the key skills and knowledge for panel members. Table 12.2 shows that there was general consensus on this question, with 97% of respondents overall (98% of individuals and 90% of organisations) agreeing that the key skills and knowledge for panel members should be an understanding of human rights, legal knowledge, and knowledge of complex trauma and its impact, as proposed in the consultation paper.

Table 12.2: Q46 – Do you agree that the key skills and knowledge for panel members should be an understanding of human rights, legal knowledge, and knowledge of complex trauma and its impact?

Respondent type	Yes		No		Total
	n	%	n	%	n	%
Local authority / public sector partnerships	10	91%	1	9%	11	100%
Other public sector organisations	5	100%	–	0%	5	100%
Current or previous care providers	6	67%	3	33%	9	100%
Third sector, including survivor groups	7	100%	–	0%	7	100%
Legal sector organisations	6	100%	–	0%	6	100%
Other organisational respondents	3	100%	–	0%	3	100%
Total organisations	37	90%	4	10%	41	100%
Individual respondents	204	98%	4	2%	208	100%
Total (organisations and individuals)	241	97%	8	3%	249	100%

One individual ticked both ‘yes’ and ‘no’ to this question. This response is not included in the table above.

12.13 Altogether 152 respondents (116 individuals and 36 organisations) commented at Question 46. Although the follow-up question asked about any other essential professional backgrounds or skills for the Decision-making Panel, respondents commented more widely on aspects of panel membership and this is reflected in the following sections.

12.14 Some respondents used their comments to offer general endorsement of the key skills and knowledge proposed in the consultation paper, describing these as ‘sufficient’ or ‘cover[ing] everything’ or, alternatively, indicating that they did not have any suggestions for additional essential skills and knowledge. Those offering fuller comments set out a range of views, as discussed below.

12.15 Respondents attached a great deal of importance to the inclusion of knowledge of complex trauma and its impact, as proposed in the consultation paper. Some saw this as crucial and / or argued that all panel members should have knowledge and experience in this area. However, respondents also often emphasised the need for specialist knowledge and experience, with a focus on childhood trauma and its impact on child and adult development, and trauma related to childhood abuse (including sexual abuse) in particular. Two related areas of knowledge and understanding were also highlighted:

• Respondents often argued that specific knowledge and understanding of the issue of historical in-care abuse, and of the survivor experience was essential for panel members – some called for direct experience of working with victims / survivors of abuse.
• Some also said panel members should have knowledge of the relevant policy, legislative, operational and organisational contexts. Respondents called for specific knowledge and experience related to social work and residential care policy and practice during the relevant timeframe, and of the structure and organisation of religious bodies.

12.16 Respondents noted a range of key professionals whom they thought could offer relevant expertise, including:

• Mental health and psychology professionals
• Medical doctors / psychiatrists, with expertise related to children, and the impact (physical and mental) of trauma
• Counsellors, psychotherapists, and those with pastoral care skills
• Representatives of groups such as Future Pathways or Wellbeing Scotland.

12.17 There was also a suggestion (from a care provider organisation) that the care provider perspective should be represented on the panel.

12.18 With regard to the other two key areas of knowledge and skills identified in the consultation paper, respondents made the following main points:

• Some respondents endorsed the inclusion of legal knowledge as a key area – there were a number of specific suggestions to the effect that there should be at least one lawyer (or retired judge) on the panel, and / or that the chair of the panel should be legally qualified. However, others offered a mix of views on the inclusion of legal expertise on the panel. Some said that this should comprise relevant legal knowledge (e.g. related to in-care abuse, social work or charity law or compensation claims) while others queried or were opposed to the inclusion of legal professionals on grounds of cost, or because they thought this should not be required in an appropriately designed and robust redress system – some suggested that legal advice should be made available to the panel as necessary.
• Respondents did not often comment on the understanding of human rights as a key area of skill and knowledge for panel members. However, those who did offered opposing views: they either simply endorsed its inclusion or suggested that it was not relevant to panel considerations which would necessarily focus on the assessment of the case and evidence presented.

12.19 Respondents occasionally proposed that panel members should have knowledge and skills in relation to financial matters. This was seen as offering a different perspective and being potentially helpful in relation to advising on the level of awards.

12.20 Respondents also made a number of more general points relating to knowledge and skills, suggesting, variously, that panel members should (i) encompass a broad range of skills and knowledge; (ii) be suitably qualified in their area of expertise, and / or professionally qualified and covered by a relevant code of conduct; and (iii) have relevant experience, rather than just knowledge, in the key areas.

12.21 In addition, it was common for respondents (and individuals in particular) to discuss the personal qualities they thought were important for those fulfilling this role. Respondents in this group prioritised attributes such as empathy, understanding, compassion, common sense, and commitment to fairness and justice. Communication skills, including those relating to engaging with people with learning disabilities, were also noted. Some said that personal qualities were more important than professional knowledge and skills, with some individuals favouring the inclusion of lay people or members of the public on the panel (reference was made to the Children’s Panel as a possible model here).

The inclusion of survivors on the Decision-making Panel

12.22 A notable view amongst individuals (and, very occasionally, amongst organisations) was that, contrary to the recommendations of the Scottish Government, the panel should include victims / survivors of abuse to ensure the experience of claimants was properly understood. It was pointed out that this would be in line with the views expressed in the earlier survivor consultation and consistent with a human rights-based approach and would help ensure legitimacy and support for the redress process. It was also noted that some victims / survivors had already played a valuable part in the redress process in offering support and advice to fellow victims / survivors, and that concerns about confidentiality could be adequately dealt with. Others suggested that such involvement might be in an advisory or observer capacity, rather than as a panel member per se.

Other comments on the Decision-making Panel

12.23 Across Questions 45 and 46, respondents made a range of other points relating to the operation and governance of the Decision-making Panel, with individual points generally made by a few respondents only. These are summarised briefly below:

• Panel membership: Panel membership should be diverse, with the proviso that claimants be able to request a single-sex panel. Potential members should be vetted and should not include people linked to any Scottish Child Abuse Inquiry (SCAI) listed institution.
• Resourcing: There should be a pool of panel members, with multiple panels sitting simultaneously. A ‘cover’ system should operate to allow panel members to be replaced in the event of absences.
• Chairing arrangements: The panel should be made up of a chair and two members, with the chair having an executive (deciding) role. It was also suggested that the chair should be legally qualified.
• Support for panel members: Training and development should be provided for panel members, with access to additional professional support and specialist expertise as required. Access to counselling support should also be available.
• Overall approach: The panel should operate in a proactive, supportive and non-judgemental way, in order to assist survivors in presenting their case, and should have access to full information for each case.
• Governance: Clear governance arrangements should be in place for the panel, which should be independent and transparent in its work. Scrutiny should be provided via internal and external monitoring, review and appeal processes.

12.24 Finally, some respondents queried whether the panel would be involved in Stage One or Stage Two claims or both – these respondents did not think a panel was required for Stage One claims, but supported the proposals made as appropriate for Stage Two claims.

Survivor panel (Q47)

12.25 The consultation also outlined proposals for a Survivor Panel (separate from the Decision-making Panel) intended to ensure that the development and operation of the redress scheme is informed by those using the scheme. Question 47 was a two-part question that asked for views on (i) the proposal to establish a Survivor Panel, and (ii) the recruitment and selection processes for membership of such a panel.

12.26 Table 12.3 shows a very high level of support for this proposal – 96% overall, with a very similar response pattern for organisations and individuals.

Table 12.3: Q47 – Do you agree that a Survivor Panel be established to advise and inform the redress scheme governance and administration?

Respondent type	Yes		No		Total
	n	%	n	%	n	%
Local authority / public sector partnerships	9	90%	1	10%	10	100%
Other public sector organisations	4	100%	–	0%	4	100%
Current or previous care providers	7	88%	1	13%	8	100%
Third sector, including survivor groups	8	100%	–	0%	8	100%
Legal sector organisations	5	100%	–	0%	5	100%
Other organisational respondents	2	100%	–	0%	2	100%
Total organisations	35	95%	2	5%	37	100%
Individual respondents	194	97%	7	3%	201	100%
Total (organisations and individuals)	219	96%	9	4%	238	100%

Percentages may not total 100% due to rounding.

12.27 Altogether 162 respondents (125 individuals and 37 organisations) commented on whether there should be a Survivor Panel, and 174 respondents (144 individuals and 31 organisations) commented on how members should be recruited and selected for such a panel. The sections below consider each of these issues in turn.

Views on the establishment of a survivor panel

12.28 As shown in Table 12.3, there was strong support for the establishment of a Survivor Panel among both individuals and organisations.

12.29 Those who supported with the proposal focused on the following two main points in their comments:

• Knowledge and experience of survivors: Respondents of all types highlighted the unique knowledge and lived experience of survivors with regard to in-care abuse and its impact, and indicated that their perspective and contribution would be ‘invaluable’ to the operation and governance of the scheme.
• The principle of survivor involvement: Respondents also thought it was important for survivors to be involved in the redress scheme on principle. Organisations tended to say that working with survivors, or putting them at the ‘heart of the process’, was essential to the legitimacy of and confidence in the scheme, and would promote transparency and survivor empowerment. Some said it reflected international best practice and was in line with a rights-based participatory approach, and the guiding principles set out for the redress scheme. Individuals tended to talk about the importance of ensuring that survivors had a ‘voice’ and that their views and experiences were fully heard within the redress process.

12.30 Overall, there was a general view that a Survivor Panel could play an important part in informing the design, governance and continuous improvement of the scheme, and in ensuring the needs of survivors were met.

12.31 The relatively few respondents who were opposed to, or expressed reservations about, the proposed Survivor Panel raised concerns about conflicts of interest and impartiality. Some said decisions should be left to the ‘government panel’ or ‘proper panel’, possibly suggesting a misunderstanding of the role of the Survivor Panel (see paragraph 12.33). There was a separate concern that the panel would be complicated to administer. Other respondents were unsure about the need for a Survivor Panel, or unsure about its role. Nevertheless, some in this group thought there might be other appropriate ways for survivor views to inform the scheme – for example, via ongoing feedback, or representation on an oversight body.

12.32 Some respondents (organisations in particular) endorsed the intention that the Survivor Panel should have a role in the development and administration of the redress scheme and should not have any involvement in individual cases. However, it should also be noted that comments from individuals sometimes suggested that they thought the panel would have a more direct involvement in cases or with claimants (in advising the panel or assisting and informing claimants) which they thought would be beneficial.

12.33 Respondents also made a range of points relevant to the running of the panel including the following:

• There should be clarity about the role and responsibilities of the panel and panel members, and transparency about its operation.
• Panel members should have appropriate training and induction and ongoing guidance and support (emotional and practical).
• Panel members should adhere to a code of conduct, and procedures to deal with confidentiality would need to be in place.
• The panel should have a direct voice – their views should not be mediated via scheme officials.
• The operation of the panel should be evaluated.

12.34 Some also suggested the panel had a role to play in ensuring that steps were taken to ensure that children were protected from abuse in the future.

12.35 Additionally, it was suggested that individuals or organisations with relevant experience might be involved in the setting up of the panel.

Views on recruitment and selection of panel members

12.36 Respondents offered a range of views on the recruitment and selection to the Survivor Panel. (Note, however, that it was common for individuals to say they did not know or had no comment on how panel members should be recruited and selected.)

12.37 The most common view was that potential members should be recruited via an open process involving an initial application and / or interview. This approach was favoured by individuals and all types of organisations.

12.38 The less common view – put forward by care providers, legal bodies, third sector organisations including survivor groups, and some individuals – was that the recruitment process should be based on nominations from key survivor groups or invitations, or that recruitment might be based on evidence submitted to the Scottish Child Abuse Inquiry (SCAI). Often, such options were put forward in combination with, for example, nominated individuals being subject to a selection process.

12.39 However, respondents of all types said that the opportunity to participate in the Survivor Panel should be widely advertised and promoted via survivor groups, support services and other relevant channels, via normal media channels, and by directly targeting survivors on an individual basis (e.g. during SCAI or financial redress processes) – it was also suggested that survivor groups had an important role to play in encouraging applicants to come forward and assisting them in making applications.

12.40 Respondents also made a wide range of comments about how recruitment should be undertaken and who should be included on the panel, as covered below.

How the selection process should operate

12.41 There were calls for an open, fair and transparent recruitment process with robust procedures and clear selection criteria. Additionally, respondents thought there should be clear information on the roles of panel members, the demands of panel membership and the period of appointment. There was also a suggestion that potential members should be ‘vetted’.

12.42 As well as being a source of potential members for the panel, some suggested that organisations such as INCAS (In Care Abuse Survivors), Future Pathways, and Health in Mind might have a role in advising on or facilitating the recruitment process.

Who should be on the panel

12.43 There was also a range of comments on who should be on the Survivor Panel. There was a general view that panel membership needed to be diverse and needed to ensure representation of the full range of survivor experiences and perspectives. Respondents suggested that factors such as length of time in care, when the individual was in care and the nature / severity of abuse suffered might be taken into account. Various options for rotating or regular renewal of panel membership were proposed in order to maximise survivor involvement. More specifically, respondents highlighted the following as being important for panel membership:

• Personal qualities: Respondents often commented on the personal qualities they though were important for Survivor Panel members. These included fairness and honesty, empathy and sensitivity, people skills, including communication and listening skills, common sense, and a willingness and confidence to get involved.
• Knowledge, education and professional experience: Some thought panel members should have academic ability, professional backgrounds, or relevant knowledge and expertise; some referred to the knowledge and skills identified for members of the Decision-making Panel (see Question 46).
• Mental wellbeing: It was suggested that panel members should be assessed as psychologically fit to participate in the panel, and that the role may not be suitable for some who are still struggling with the impact of their abuse.

12.44 It was also suggested that members of INCAS should be represented on the panel. One named person was suggested and some respondents also indicated their own interest in getting involved in a Survivor Panel.