Financial redress for historical child abuse in care: consultation analysis

8. Consideration of other payments (Q24–Q26)

8.1 The consultation paper noted the intention to allow those who have received a payment from another source in respect of their abuse to remain eligible to apply to the redress scheme, with prior amounts received being deducted from any redress payment made. It noted that consideration would need to be given to how any such adjustments would be made. Two questions were asked in relation to this – one relating to eligibility to apply for redress and the other to the consideration given to previous payments when assessing the amount of a redress payment.

8.2 The consultation paper also noted the Scottish Government’s proposal that applicants will have to choose between accepting a payment through the redress scheme or pursuing a case through the civil courts, as is the case in many other countries. It is anticipated that individuals would be informed of their redress payment and then, after receiving legal advice about whether or not to accept this, decide which option to pursue. If a redress payment were to be accepted, individuals would be required to sign a waiver, giving up their right to pursue civil court action in relation to their abuse.

8.3 It is important to note that there was a significant degree of crossover between the questions – for example, with respondents to Question 24 about eligibility making comments about the need to consider previous payments (addressed at Question 25).

Question 24: Do you agree that anyone who has received a payment from another source for the abuse they suffered in care in Scotland should still be eligible to apply to the redress scheme? [Yes / No] Please explain your answer.

Question 25: Do you agree that any previous payments received by an applicant should be taken into account in assessing the amount of the redress payment from this scheme? [Yes / No] Please explain your answer.

Question 26: Do you agree applicants should choose between accepting a redress payment or pursuing a civil court action? [ Yes / No] Please explain your answer.

Three-quarters of all respondents (75%) agreed that anyone who has received a payment from another source should still be eligible to apply to the redress scheme. Respondents commonly said the scheme should be open to all, and that this was the fairest or best approach, although some thought eligibility might be restricted in some circumstances. Some also said court action and the redress scheme served different purposes. Respondents who did not think that people who had already received a payment should be able to make a redress claim either thought that acknowledgement and redress had already been achieved in such cases, or expressed concerns about double payments for abuse suffered.Key points

• Just over half of respondents (54%) agreed that previous payments should be taken into account in assessing redress payments, although organisations were markedly more likely than individuals to think this (86% v 49%). Respondents said this approach would be fair, and would deal with the issue of double payments. Those who disagreed with this approach said that individuals should not be penalised for having pursued another source of compensation or justice, and should be able to claim as much as possible. However, some said that the account taken of previous payment should be decided on a case-by-case basis.
• A majority of those who responded (57%) agreed that applicants should choose between a redress payment or civil court action, with similar levels of agreement between individuals and organisations. However, there was considerable variation by organisational type – for example, while all local authorities / public sector partnerships agreed, all third sector respondents disagreed. It was also unclear whether individuals had always understood and answered the question in the same way.
• Some respondents who thought that claimants should have to choose were concerned about double payments, which they thought should be avoided as a matter of legal principle and so that responsible bodies would not be penalised twice.
• Those who indicated that applicants should be able to pursue both options referred to the different (and potentially complementary) features and purposes of redress and court action. Some also pointed out that the system should and could be designed to take account of double payments.
• However, it was also common for respondents to stress (i) the importance of personal choice on this matter, and (ii) the importance of good quality legal advice to assist claimants in making a decision about accepting a redress payment.

Consideration of other payments in relation to eligibility (Q24)

8.4 Question 24 asked respondents if they agreed that anyone who has received a payment from another source for abuse suffered in care in Scotland should still be eligible to apply to the redress scheme. As Table 8.1 shows, around three-quarters of both organisations (76%) and individuals (75%) answered ‘yes’.

Table 8.1: Q24 – Do you agree that anyone who has received a payment from another source for the abuse they suffered in care in Scotland should still be eligible to apply to the redress scheme?

Respondent type	Yes		No		Total
	n	%	n	%	n	%
Local authority / public sector partnerships	6	55%	5	45%	11	100%
Other public sector organisations	3	100%	–	0%	3	100%
Current or previous care provider	7	70%	3	30%	10	100%
Third sector, including survivor groups	6	100%	–	0%	6	100%
Legal sector organisations	5	100%	–	0%	5	100%
Other organisational respondents	1	50%	1	50%	2	100%
Total organisations	28	76%	9	24%	37	100%
Individual respondents	155	75%	53	25%	208	100%
Total (organisations and individuals)	183	75%	62	25%	245	100%

Two individuals ticked ‘yes’ and ‘no’ in response to this question. These responses are not included in the table above.

8.5 Altogether, 202 respondents (163 individuals and 39 organisations) provided additional comment at Question 24. The responses included a large number of disparate comments about the Stage Two Payment process. These are not covered in the sections below, but have been addressed elsewhere in the report.

Support for applicants who have received a payment from another source being eligible to apply to the redress scheme

8.6 Among those who believed that anyone who has received a payment from another source for abuse suffered in care should still be eligible to apply to the redress scheme, the most common type of response was simply to say that the redress scheme should be open to all. Some characterised this as the ‘fairest’ or ‘best’ approach. Occasionally, respondents emphasised the distinction between eligibility to apply and eligibility for payment.

8.7 However, some qualified their response, saying that continuing eligibility should be ‘conditional’, although they did not always say exactly on what this should depend. Among those who did, the most common view was that the amount of the previous payment should determine whether or not individuals should be able to apply for a Stage Two payment. Other respondents argued that eligibility should depend on the claim being for a different matter or against a different institution, or the previous payment being for a low amount – or it should depend on the basis on which the payment was made and the source of payment. There was also a suggestion that migrant children who have been compensated by other bodies should be excluded. An absolute bar to eligibility based on previous payments was seen by some, including most of the legal sector respondents, to be unfair and to go against the interests of justice.

8.8 Another common theme in comments from those who believed that previous payments should not render individuals ineligible for the redress scheme related to perceptions of the purpose of redress. Respondents often saw civil court action and the redress scheme as serving different purposes, although they did not always agree on what these were. Some simply referred to a difference in purpose, while others tried to explain their perceptions of the difference. For example, there was a view that the redress scheme representing the state’s acknowledgment of harm and failure within the care system, whilst the court system offered a means of holding institutions, and individuals, to account and of securing justice for personal abuse suffered. Some saw the purpose of the redress scheme more broadly – for example, as a way to address human rights abuses and to compensate for wider abuse or neglect experienced during time in care.

8.9 Among those agreeing with the proposed eligibility at Question 24, a large group (including most local authority respondents) nevertheless thought there should be a link between payments from different sources (an issue asked about specifically at Question 25) – with, for example, previous payments being deducted from any award made through the redress system. Respondents only very occasionally stated explicitly that all other awards should be disregarded, with no deductions being made from a redress payment.

Opposition to applicants who have received a payment from another source being eligible to apply to the redress scheme

8.10 There were two main themes evident in the comments from the minority of respondents who believed that anyone who has received a payment from another source should not be eligible to apply to the redress scheme. First, some suggested that previous payments are an indication that redress for abuse in care has already been achieved, that the individual’s experience has been acknowledged, and that the case is now closed. Second, there was a view that individuals should not be allowed to receive double payments for the abuse suffered. While some did not elaborate on their reasons for this, others suggested that double payments would be unfair and / or go against the principle of compensation and the purpose of the redress scheme (see again paragraph 8.8). There were occasional concerns about the expense of double payments, including the cost to the public purse and the impact this would have on taxpayers.

8.11 In other cases, respondents made comments that simply reiterated their view that individuals who have already received payment should not be eligible for the redress scheme, or they qualified their response – for example, suggesting that individuals should not be able to apply if the amount received through civil action was substantial, if the previous action was for the same incident, or if individuals have already been treated fairly.

Consideration of other payments in relation to payment amount (Q25)

8.12 Question 25 asked respondents they if agreed that previous payments received by an applicant should be taken into account in assessing the amount of the payment from the redress scheme. Table 8.2 shows that just over half (54%) of those responding to Question 25 answered ‘yes’. However, there were marked differences in the views expressed by organisations (86% agreed) and individuals (49% agreed).

Table 8.2: Q25 – Do you agree that any previous payments received by an applicant should be taken into account in assessing the amount of the redress payment from this scheme?

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Local authority / public sector partnerships	11	100%	–	0%	11	100%
Other public sector organisations	2	67%	1	33%	3	100%
Current or previous care providers	8	89%	1	11%	9	100%
Third sector, including survivor groups	3	50%	3	50%	6	100%
Legal sector organisations	6	100%	–	0%	6	100%
Other organisational respondents	2	100%	–	0%	2	100%
Total organisations	32	86%	5	14%	37	100%
Individual respondents	102	49%	107	51%	209	100%
Total (organisations and individuals)	134	54%	112	46%	246	100%

Three individuals ticked both ‘yes’ and ‘no’ in response to this question. These responses are not included in the table above.

8.13 A total of 182 respondents (144 individuals and 38 organisations) provided additional comment. This included some who did not provide a clear answer, with their comments suggesting that, for most, this was because they were unsure of their views.

Support for previous payments being taken into account

8.14 Among the majority of respondents who agreed that any previous payments received by an applicant should be taken into account in assessing the amount of the redress payment, three main interlinked themes were evident (mentioned by roughly equal numbers of respondents). These related to principles of fairness and equality, concern about double payments, and views about how any previous payment might be taken into account.

8.15 First, respondents often argued that taking previous payments into account was the only way to ensure fairness and equality. In some cases, respondents simply offered brief comments such as ‘would be fair’, ‘level playing field’, ‘it’s fair and just’, and did not elaborate on why they thought this to be the case. Some also explicitly stated that no victim / survivor should be able to get more than another or thought that it would not be fair to those who had not been through the court system or could not go though it (for example, individuals with pre-1964 cases who cannot access other forms of redress, or those finding court action too distressing).

8.16 Second, respondents commonly expressed a view that the redress scheme should avoid double payments. Some discussed the need to avoid double payments in terms of the purpose of the scheme, mentioning the need to deter claims based on greed, financial gain and opportunism, while others argued that the scheme should be based on compensatory principles, similar to those used in the insurance sector and by the Criminal Injuries Compensation Authority. Others simply indicated that it was wrong to be paid twice for the same matter.

8.17 Third, respondents commented on how previous payments should be taken into account, with most referring to the need to deduct any previous payments from the redress amount and some referring to ‘topping-up’ court awards to the level of a redress payment or not getting a redress payment at all if the court award is at a higher level. It was also suggested that any deductions should not be higher than the sum actually received by the individual (e.g. after payment of any representatives’ fees, if applicable).

8.18 Among those who agreed that previous payments should be taken into account, some suggested that this should be dependent on specific factors (including the amount received, what the payment was for, or the type of payment) or should be reviewed on a case-by-case basis. Occasionally, respondents argued that Advance Payments were the only type of previous payments that should be considered.

Opposition to previous payments being taken into account

8.19 Among the minority who disagreed that any previous payments received should be taken into consideration in assessing the amount of redress payments, some respondents simply made a general statement to this effect without providing further details. However, others (again) said that it should depend on specific factors (such as the level of payment, what it was for and who it was from) and / or that applications should be considered on a case-by-case basis.

8.20 This group commonly argued that individuals should not be penalised for having pursued another source of compensation or justice. In this context, it was pointed out that redress had not been an option in the past; that the Scottish Child Abuse Inquiry took a long time to be set up so people chose alternative routes to justice; and that previous payments were often made a long time ago, at a relatively low level with little benefit to the individual, and did not always relate to all the abuse suffered (e.g. if a child had been in care in different settings).

8.21 As at Question 24, some respondents proposed that previous payments should not be taken into account because of the perceived difference in purpose of the redress scheme and civil court action.

8.22 Some also expressed the view that, as no redress scheme or other financial award can ever fully compensate for abuse suffered and its long-term impact, individuals should be entitled to claim as much as possible.

Choosing between a redress payment and court action (Q26)

8.23 Question 26 asked respondents if they agreed that applicants should choose between accepting a redress payment or pursuing a civil court action. Table 8.3 shows that A majority of those who responded (57%) answered ‘yes’ There were similar levels of agreement between individuals and organisations (56% and 60% respectively) but considerable variation by organisational type – for example, all local authorities / public sector partnerships agreed, but all third sector respondents disagreed. Note that the overall proportion of respondents agreeing that applicants should choose between accepting a redress payment or pursuing a civil court action (57%) was similar to the proportion agreeing that any previous payments should be taken into account when making a redress payment (see Question 25).

Table 8.3: Q26 – Do you agree applicants should choose between accepting a redress payment or pursuing a civil court action?

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Local authority / public sector partnerships	12	100%	–	0%	12	100%
Other public sector organisations	1	33%	2	67%	3	100%
Current or previous care providers	7	88%	1	13%	8	100%
Third sector, including survivor groups	–	0%	7	100%	7	100%
Legal sector organisations	1	14%	6	86%	7	100%
Other organisational respondents	3	100%	–	0%	3	100%
Total organisations	24	60%	16	40%	40	100%
Individual respondents	114	56%	88	44%	202	100%
Total (organisations and individuals)	138	57%	104	43%	242	100%

Three individuals ticked both ‘yes’ and ‘no’ in response to this question. These responses are not included in the table above.

8.24 A total of 195 respondents (155 individuals and 40 organisations) provided further comments. These often suggested that this question may not always have been interpreted as intended. For example, only around two-fifths of those who ticked ‘yes’ at Question 26 made comments suggesting that applicants should have to choose between accepting a financial redress payment and pursuing civil action. Others who ticked ‘yes’ made comments indicating support for the right to choose between the two options including, potentially, the right to choose both. There was greater clarity among those who said applicants should not have to choose, with around three-quarters commenting in a way that made it clear that they believed applicants should be able to pursue both options. These comments suggest that the figures shown in Table 8.3 should be treated with caution.

Support for applicants having to choose between accepting a redress payment and pursuing civil action

8.25 Respondents offered a range of comments on why applicants should have to choose between accepting a redress payment and civil court action.

8.26 Some respondents thought such a choice was necessary to avoid the possibility of double payments. In this context, some respondents made specific references to the purpose of redress (i.e. it is for an apology rather than financial gain) or the legal principle of prohibiting double payments. Some organisations opposed double payments on the specific basis that responsible bodies should not have to pay twice rather than concern about individuals receiving additional payments. It was common for local authority respondents, in particular, to express concerns about double payments.

8.27 Some respondents also commented on how the process should work. For example, some respondents emphasised that while they agreed a choice should be made, there was a need to ensure good quality legal advice about whether to accept or reject a redress payment in favour of civil court action (taking into account, for example, payment levels and the impact of the court process). The potential exploitation of individuals was also noted, along with anecdotal evidence of legal firms encouraging survivors to make claims on a ‘no win, no fee’ basis. (See also Questions 29 and 30.)

8.28 However, as noted above, respondents who ticked ’yes’ at the closed question frequently discussed why respondents should have a choice of pursuing a redress payment or court action (including being able to choose to do both).

8.29 Some respondents highlighted the perceived unsuitability of court action for some individuals and case types. For example, concerns were expressed that civil court action would not be available to individuals with pre-1964 cases or might be inappropriate for some older individuals for reasons of health or the length of time cases can take to conclude. Respondents also highlighted cases where the institution no longer exists, or where insurance cover is not available to pay any resulting award. Occasionally, respondents also suggested that court action was unsuitable for some applicants, for example because of uncertainty about the process and outcome, the adversarial nature of court action, the significant costs involved, the public nature of a trial and the risk of further harm to victims / survivors. Redress was, therefore, seen as a potentially quicker and simpler option than court action, and as having a lower evidence threshold and higher chance of success. (Note that these points were also raised by those who supported applicants being able to receive a redress payment and pursue a civil court action.)

Support for applicants being able to receive a redress payment and pursue a civil court action

8.30 Among those who supported applicants being able to receive a redress payment and pursue a civil court action, some simply made general statements about the importance of individual choice and of being able to pursue both options. Others commented on the perceived advantages and disadvantages of the different courses of action. (As such, there were similarities with some of the comments reported at paragraph 8.29 from those suggesting that applicants should be able to choose which option to pursue.)

8.31 With regard to the redress scheme, in particular, occasional concerns were raised. These related to individuals receiving lower levels of payment (relative to court action); the risk of it being used to reduce the overall cost of compensating victims / survivors for abuse suffered in care; and the scope for institutions responsible for abuse being able to hide behind the scheme. However, there was little commonality in such views.

8.32 Another theme in the comments (particularly in those from individuals and third sector organisations) about why applicants should not have to choose between a redress payment and pursuing court action – and potentially be able to pursue both – was the perceived difference in purpose of the two courses of action. The redress payment was seen as the state’s way of acknowledging, and apologising for, harm caused and the failure of the system. Civil court action was seen to be about establishing guilt, holding individual organisations and perpetrators to account and ensuring justice for individual survivors. Some respondents commented that applicants may want to pursue civil court action, in addition to an application to the redress scheme, to ensure that justice is met or to air the matter in a public forum.

8.33 A number of other points were made on a less frequent basis. Some, especially legal and third sector respondents, suggested that allowing both options to be pursued was fundamental both to the principles of justice and to the aims of the redress scheme and the wider support the Scottish Government is providing for victims / survivors. The redress scheme was seen as a way of widening choice and access to justice and empowering individuals and this would only remain the case if individuals also had the choice to pursue court action as well as a redress payment. Forcing survivors to make a choice between courses of action was variously seen as: potentially limiting individual rights and access to justice, discouraging civil action, preventing individuals from getting damages they are entitled to, and as generally unfair and at odds with the Scottish Government’s approach to supporting victims / survivors.

8.34 Some respondents suggested that, although individuals should be free to pursue both a redress claim and civil court action, awards should not be granted independently of each other. Consideration of other payments would need to be included in the assessment of the redress payment, with a system of deducting payments to ensure double payments are avoided. Similarly, some respondents suggested that claimants should have to discontinue any civil proceedings if they accepted a redress payment. Respondents only very occasionally stated explicitly that there should be no deductions from payments, and that applicants should be able to receive full payment from both sources.

8.35 Some legal and third sector respondents recognised concerns about double payments but suggested that the system could take account of different payments – for example, through a reimbursement system. This was highlighted as a well-established legal principle that should be applied in the operation of this scheme.

8.36 Occasionally, respondents (mainly from the legal sector) highlighted the need to ensure that applicants have access to effective legal advice before making any decision about taking any course of action. In the event of a waiver being included as part of the redress process, respondents raised concerns about the quality of advice that might be provided, the risk of non-specialists advising victims / survivors to waive potentially substantial damages and the potential for increased professional negligence claims. Furthermore, concerns were raised that the advice given at a particular point in time, on the basis of the available evidence, might be to accept the redress payment. However, further evidence relating to a case might emerge over time, after the waiver had been signed, which would make a civil claim viable. Questions were also raised about how those who had already pursued court action, and signed waivers – prior to the redress scheme – would be dealt with.