Redress Scheme: information for organisations

Background

The Scottish Government’s ambition for children and young people is that they grow up loved, safe and respected so that they realise their full potential. For many of Scotland’s most vulnerable children who experienced the care system in the past, the reality was utterly different. Many of these children were not treated with love or with respect and, rather than being kept safe, they were exposed to danger and abused by those responsible for their care, often leaving them with lifelong consequences.

Nothing can ever make up for the suffering which survivors of abuse have endured. Survivors of historical abuse in care have campaigned with dedication and perseverance for access to justice, improved accountability, and redress. Importantly, they want, and deserve, to be listened to, heard and believed. For too long, survivors of abuse were not acknowledged and the truth of their abuse was neither accepted nor acted upon, for some compounding the effects of their childhood. We believe that the wrongs of the past must be addressed and financial redress is an important part of doing that.

On 23 October 2018, in a statement in the Scottish Parliament, the Deputy First Minister, John Swinney MSP said: “Today, on behalf of the Scottish Government, I offer an unreserved and heartfelt apology to everyone who suffered abuse in care in Scotland. We are deeply ashamed of what happened.”

Planning for a Redress Scheme began in 2016 and a consultation with survivors of historic abuse was carried out in 2017. Work has continued to establish and deliver the redress scheme and to set up Redress Scotland, a new independent body to perform the decision making functions of the scheme. On 25 April 2019, we opened the Advance Payment Scheme[1] which offered government funded payments of £10,000 to survivors who are elderly (aged 68 or over) or have a terminal illness. So far more than 700 Advanced Payments have been made through this scheme.

The Advance Payment Scheme was a first important step but we have now put in place a statutory redress scheme, underpinned by an Act of the Scottish Parliament. Scotland’s redress scheme aims to respond to survivors of abuse in care from the 1930s up until 2004 when the then First Minister, Jack McConnell, made an apology in the Scottish Parliament for the historical abuse of children in care.

 We believe that organisations that were responsible for the care of children at the time they experienced abuse should meaningfully participate in this national collective endeavour to recognise the harms of the past. This would be done by contributing to the scheme financially and by acting consistently with its spirit and ethos, and acknowledging the harms of the past. This is referred to as making a ‘fair and meaningful’ financial contribution, and this is explored in more depth later in the fair and meaningful contribution section. While the decision to participate in the scheme is voluntary, a scheme without contributions from other organisations would not be the scheme the majority of survivors have told us they want.

There are two different redress payments available to survivors under the scheme:

• fixed rate payments of £10,000
• individually assessed redress payments which can range from £20,000 to £100,000 depending on the nature, severity, frequency and duration of abuse experienced, and other relevant factors

The amount of redress paid to survivors will not be affected by whether any particular organisation has contributed to the scheme, or whether those responsible for their abuse are alive today. If an applicant accepts an offer of a redress payment as determined by Redress Scotland, they will receive that payment, irrespective of whether or not the organisation(s) responsible for their care have contributed. Where an organisation does not contribute, or where that organisation no longer exists, the Scottish Government will meet any shortfall.

Any previous payments made to the survivor or the applicant in relation to the abuse covered by the application will be deducted from the value of any redress payment offered.

The scheme is designed as an alternative to the civil court process. It is intended to offer a route to justice which is not available to some survivors and to offer choice to those who may not wish to pursue an action in court. The choice of whether to seek redress through the scheme, or to pursue action in court, will always sit with survivors unless and until they choose to accept a redress payment, and each individual will make that choice based on their own individual circumstances.

The scheme does not establish blame or liability for the abuse suffered. Redress Scotland will consider applications for redress by looking at the applicant’s abusive experience in childhood as set out in the application, in its totality.

The scheme will be managed by two different organisations. Redress Scotland will make decisions on applications. A new Redress Division in the Scottish Government will offer support to survivors considering applying to the scheme, in a similar way as they do currently for the Advance Payment Scheme. The Scottish Government Redress Division will:

• help survivors and others with questions about the redress scheme and how to apply
• help applicants access practical help (for example finding records) and emotional support
• make sure applicants are aware of their rights and options under the scheme, including the payment of applicants’ legal fees related to redress applications
• receive applications and pass these to Redress Scotland for decision
• inform applicants if their application has been successful and what level of redress payment is being offered
• explain the process if an applicant wants a review on a decision from Redress Scotland
• facilitate official apologies to applicants if requested
• arrange access to counselling at the end of the process if applicants request it
• pay redress payments
• pay applicants’ legal fees related to redress applications
• pay applicants’ expenses related to redress applications
• process contributions from organisations and provide information and updates to organisations as required
• review contribution payment schedules and any other relevant matters with organisations
• manage the contributor list

Redress Scotland will:

• receive applications from the Redress Division when the survivor is ready for it to be considered and make decisions about whether the applicant is eligible
• tell the Redress Division what they decide, or if they need more information before they can make a decision
• tell the Redress Division what level of payment should be offered to the applicant
• review decisions where the applicant requests it using a different panel of members from that which made the original decision

Rationale for participation

Being part of the redress scheme gives organisations the opportunity to be part of a nationwide, collective effort to face up to the harms of the past. It demonstrates support for faster, trauma informed, access to redress for survivors. Providing contributions to the Redress Scheme should enable organisations to address concerns raised by those who were in their care, and without the costs which may be associated with the civil court process. Participating organisations will also be included on the list of scheme contributors and therefore subject to the scheme’s waiver. Such organisations will therefore benefit from the legal protection the waiver  provides where applicants accept a payment from the scheme.

There is a moral imperative to do the right thing for survivors but the scheme also recognises and responds to the moral duty of organisations to secure the sustainability of important services they may provide today.

If an organisation does not make a fair and meaningful contribution, and is not named on the contributor list, then the applicant is able to receive the redress payment and raise legal action against the organisation.

In those circumstances the applicant will be more financially secure and may feel more personally resilient, due to the non-financial redress and independent legal advice they are able to access through the scheme, than they were previously. It is possible that they would be more likely to raise legal action than before they applied to the scheme.

This scheme, as in other schemes, for example those in Lambeth and in Northern Ireland, has adopted a standard of proof of the balance of probabilities. Redress Scotland will make evidence based decisions on applications received.

The Scottish Government will meet all the costs of setting up and delivering the redress scheme, including those associated with providing support to survivors during the application process and delivering non-financial redress, such as therapeutic support, as well as the legal fees for applicants.

Taking part in this scheme gives organisations the opportunity to be part of a national collective endeavour which acknowledges and faces up to the failings of the past in a trauma-informed and survivor focussed way. For organisations that were responsible for the care of children at the time of the abuse, participating in this scheme is simply the right thing to do.