Financial redress for historical child abuse: consultation

Part 2: Scheme Administration and Wider Reparations

This part includes questions related to the implementation of the statutory financial redress scheme and the opportunity to bring together related elements of a package of reparations, including acknowledgment, apology and support.

Part 2.1: Decision-Making Panel for Redress

The financial redress scheme will be administered and governed independently of the Scottish Government. This will ensure that decisions on assessment of applications to the scheme will not be made by the Scottish Government.

Views from the 2017 survivor consultation

• Victims/survivors should be represented in the administration and governance of a full financial compensation/redress scheme. The value and insight offered by victim/survivor representation was highlighted by the consultation participants. Similar to the types of support, victims/survivors suggested a broad range of ways by which victim/survivors could be represented, either through the development and administration of the scheme or the individual application process. These views accord with a human rights based approach where participation is a recognised key component. Representation and participation should be significant and meaningful, involving appropriate information available in accessible formats, and the provision of necessary support and guidance.
• A range of knowledge and understanding should be represented in any panel or board which will have a decision making role in the scheme. Victims/survivors who answered this question noted a number of suggested professional backgrounds and specified services, and highlighted the value of lived experience. Key areas of knowledge and understanding included: advocacy, finance, health, human rights law, social care, and trauma.

We propose that decisions are made by a panel of three people drawn from a group of suitably qualified people appointed for this purpose. Panel members could come from a variety of backgrounds. We think the skills and knowledge appropriate for panel members to have include an understanding of human rights, legal knowledge, and knowledge of complex trauma and its impact.

We believe that service development is best informed by the individuals that will use it. However, in line with some of the concerns raised by survivors in the 2017 consultation regarding matters of confidentiality and potential impact or harm, we do not think it would be appropriate for survivors to form part of the decision-making panel itself. That panel will be considering individual redress applications, based on an objective set of criteria, and the evidence provided in support. Instead, we propose a survivor panel should be established to ensure survivors have a voice in the development and administration of the redress scheme.

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 propose 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?

Part 2.2 Public Body

We propose that the financial redress scheme will be administered and governed by a new public body which, although accountable to Scottish Ministers, will be operationally independent of them in particular in regards to the decision making panel and process.

Question 48

Do you agree that the financial redress scheme administration should be located in a new public body?

Yes/No

Please explain your answer.

Question 49

Do you have any views as to where the public body should be located and what it should be called?

What factors should be taken into account when deciding where the public body should be?

The Chair and Chief Executive of the public body will be appointed through the public appointments process.

Question 50

How can survivors be involved in the recruitment process for these posts?

How should survivors be selected to take part in this process?

Part 2.3 Wider Reparations

Learning from other countries has highlighted the unique circumstances of individual survivors and that, whilst not every survivor will want or need any wider reparation, choice and access to a broad range of remedies is important. These remedies often include acknowledgment, apology and support.

The establishment of a new independent public body provides an opportunity to consider whether other elements of a reparation package could be provided in a more joined-up way. This may make it easier for survivors to access the support and information that they need, and may benefit services in relation to efficiencies in delivery, promotion and communication.

For background, we have outlined below the current provision in Scotland in relation to acknowledgement, apology and support.

Acknowledgment

The Scottish Government established the National Confidential Forum (NCF) through the Victims and Witnesses (Scotland) Act 2014 to listen to and acknowledge people’s childhood experiences of institutional care in Scotland. There is no need for applicants to provide verification of their placement details and all the information gathered is anonymised. Unlike the Scottish Child Abuse Inquiry, the NCF does not investigate any abuse disclosed by the survivor. Instead the purpose is to receive and listen to testimony.

Apology

The Apologies (Scotland) Act 2016 gives legal protection to an apology, in certain circumstances. It provides that an apology (as defined in terms of the Act) is inadmissible in certain civil proceedings as evidence of anything relevant to the determination of liability, and cannot otherwise be used to the prejudice of the person making the apology (or on whose behalf it is made). The Act has the broader purpose of encouraging a cultural and social change in attitudes towards apologising.

For the purpose of the Act, an apology is defined as a statement (which could be written or oral) made either by the person who is apologising (whether a natural person, or a legal person such as a company), or by someone else on their behalf. The core element is an indication that the person is sorry about, or regrets, an act, omission or outcome.

On 1 December 2004 then First Minister Jack McConnell made an apology on behalf of the people of Scotland to victims of child abuse in Scotland. On 23 October 2018 Deputy First Minister John Swinney issued an apology on behalf of the Scottish Government and announced the establishment of a financial redress scheme.

Support

The Scottish Government currently provides funding to a number of organisations to deliver support services for survivors. Future Pathways was set up by the Scottish Government in 2016 and is governed by an alliance of organisations. Future Pathways works with individual survivors to identify personal outcomes and then signpost or commission services on the person’s behalf. Examples of the support accessed through Future Pathways include assistance with tracing records, help accessing work and education opportunities, arranging housing and benefits advice, and arranging access to counselling and specialist psychological therapies.

Bringing services together

There may be an opportunity to bring together the administration of other services for survivors with financial redress. We think this could benefit survivors by providing a single entry point for the financial redress scheme and wider reparation. In terms of service provision it could provide integration, efficiency and effectiveness. Some survivors have expressed a view that there would be benefits to bringing together all these elements of reparation into the same physical location.

Question 51

What are your views on bringing together the administration of other elements of a reparation package such as support and acknowledgement with financial redress?

What would be the advantages?

Would there be any disadvantages, and if so, how might these be addressed?

Question 52

Do you agree that it would be beneficial if the administration of these elements were located in the same physical building?

What would be the advantages?

Would there be any disadvantages, and if so, how might these be addressed?

Question 53

Should wider reparation be available to everyone who meets the eligibility criteria for the financial redress scheme?

Yes/No

Please explain your answer.

Question 54

Should there be priority access to wider reparation for certain groups, for example elderly and ill?

Yes/No

Please explain your answer.

Question 55

If a person is eligible for redress, should they have the same or comparable access to other elements of reparation whether they live in Scotland or elsewhere?

Yes/No

Please explain your answer.

Acknowledgment and Apology

Acknowledgment and apology have been identified as key components of reparation. In other countries this sometimes includes a face to face apology or letter of apology from different representatives, for example the Government, care provider or other organisations. Some have developed a framework for a direct personal response that also allows for other actions, including acknowledgment of regret and/or an opportunity to meet a senior official within the relevant institution.

When the NCF was established in Scotland in 2014, it was the only acknowledgment forum available to survivors. That position has changed. We now have the Scottish Child Abuse Inquiry and the Independent Care Review examining people’s experiences in care. We will have a financial redress scheme to acknowledge and respond to the harm done to survivors of abuse in care. We want to look again at how survivors access acknowledgment and apology in Scotland.

Question 56

To allow us more flexibility in considering how acknowledgment is delivered in the future, we intend to include provision in the redress legislation to repeal the sections of the Victims and Witnesses (Scotland) Act 2014 which established the National Confidential Forum.

Do you have any views on this?

Question 57

Do you have any views on how acknowledgment should be provided in the future?

Question 58

Do you think a personal apology should be given alongside a redress payment?

Yes/No

Please explain your answer.

If so, who should give the apology?

Support

Support is a key element of a wider reparation package and can typically include the following:

• emotional or psychological health and wellbeing;
• work and education;
• housing, benefits and financial advice;
• physical health and wellbeing;
• access to records – finding out about time in care;
• befriending.

Some countries have established a national counselling service or advocacy service rather than a wider support coordination service.

The creation of a statutory financial redress scheme provides the opportunity to look at how support for survivors might be delivered in the future. This will require further extensive engagement to consider current provision and consider other models.

Question 59

Do you think there is a need for a dedicated support service for in care survivors once the financial redress scheme is in place?

Yes/No

Please explain your answer.

Question 60

Do you have any initial views on how support for in care survivors might be delivered in Scotland, alongside a redress scheme?