Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 and relevant secondary legislation: business and regulatory impact assessment (BRIA)

10. Enforcement, sanctions and monitoring

10.1 Enforcement in relation to obtaining evidence

The Act creates a power for the Scottish Ministers, in their capacity as administrators of the redress scheme, to compel any individual or body to provide them with specified information or other evidence for the purposes of the determination of an application for a redress payment. Relevant information might include information which demonstrates that the applicant was in care, or demonstrates that the applicant was abused whilst in care, or demonstrates the impact of that abuse on the applicant. The Act also provides that Redress Scotland may direct the Scottish Ministers to exercise these powers.

It is likely that this power would only be used where all other requests by the survivor, or someone working with a mandate from the survivor, to obtain the information have failed. The default approach will be to seek the cooperation of those bodies which hold relevant information. However, having a robust and adequate framework to facilitate the provision of records where cooperation is not forthcoming, is essential to support survivors to apply for redress and to facilitate the assessment of applications.

The power is broad to ensure that it can be used to obtain relevant information and records from a wide range of sources. It would not be exercised in the absence of the agreement of the applicant. Where survivors do not want records to be obtained on their behalf but do want to submit those records with their application, they would obtain the documents themselves using existing means such as subject access requests.

To request documents using the power, the Scottish Ministers will issue a notice requiring a person or organisation to provide documents. That person or organisation will then be entitled under the legislation to appeal the notice on the grounds that they are either unable to comply with it or that it is not reasonable in all the circumstances to require them to comply with it. The notice can be thereafter confirmed, revoked or varied. Such reviews will be carried out by Redress Scotland to ensure independent oversight of the exercise of these powers.

The Act also places beyond doubt that where the Scottish Ministers hold information required by Redress Scotland, the Scottish Ministers must comply with a request by Redress Scotland to provide that information.

In line with other redress schemes and the powers of statutory inquiries, failure to comply with a request for information will, in certain circumstances constitute a criminal offence capable of prosecution at summary level.^[37] Any action taken to conceal, destroy, or alter evidence required by a notice to provide information may also constitute a criminal offence. Where a criminal offence is committed in relation to a notice to provide information by an organisation and a responsible individual within that organisation has facilitated the offence – either actively or via neglect – both the organisation and the responsible individual, such as a senior member of staff, could also face prosecution.

The Act provides for punishment upon conviction of imprisonment to a term not exceeding six months and/or a fine not exceeding level three on the standard scale.^[38] The offence and the penalties are modelled on the Inquiries Act 2005.

In some circumstances, the Scottish Ministers may need to compel an individual or organisation based in England, Wales, or Northern Ireland to provide information. To provide for these situations, the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (Consequential Provisions Order) 2021^[39] creates powers to ensure that the Scottish Ministers can require a person (other than a redress applicant or the Crown) in other parts of the UK to provide relevant information, documents, objects or other items of evidence in relation to applications under the scheme.

Where an organisation or individual in the rest of the UK fails without reasonable excuse to comply with a request to provide information, they are liable on summary conviction to imprisonment for a term not exceeding three months and/or a fine not exceeding level 3 on the standard scale.

10.2 Monitoring and enforcement in relation to wider redress reporting activities

The Act requires certain organisations to report on their wider (i.e. non-financial) redress activities, such as providing emotional, psychological, or practical support for people who were abused as children; providing assistance to survivors to access historical records; providing assistance in tracing and reuniting families; or providing apologies to survivors. The intention of this provision is to provide an opportunity to organisations to demonstrate that they have actively tried to address the harms of the past on the basis that redress involves taking a range of actions to promote societal healing, not just making financial payments to survivors.

The organisations subject to the reporting duty will be all those which have agreed to contribute financially to the redress scheme. Scottish Ministers may also direct an organisation to report in circumstances where it has been cited in a redress application which has resulted in an offer of payment to a survivor.

Organisations which have a duty to report or which have been directed to report must provide a summary of their wider redress activities in relation to historical child abuse to Scottish Ministers following the end of each financial year.^[40] Scottish Ministers will collate the information from the redress reports sent to them into a combined report for the year and publish it. The Act also makes provision for Scottish Ministers to lay regulations requiring organisations to include a statement on wider redress activities in their annual reports or an equivalent document.

Where an organisation required to report has not carried out any wider redress activity, they will be required to submit a 'nil return' to explain why this is the case. Organisations which do not have a duty to report, and have not been directed to report, are able to report voluntarily, if they so choose.

In addition to situations in which an organisation has been named in a redress application which results in an offer of payment, Scottish Ministers may also direct an organisation to report where they consider that an organisation with a duty to do so has not fulfilled their obligations by the relevant deadline. If the Scottish Minsters consider that the person has failed to comply with a reporting direction, they may publish the fact that the person has failed to do so. The Scottish Ministers may revise or revoke a reporting direction.

Further information on how the wider redress reporting will function in practice has been detailed in statutory guidance.^[41]

10.3 Monitoring and enforcement in relation to receipt of funds from care providers

For an organisation to be included in the list of scheme contributors, Scottish Ministers must consider the proposed contribution and the evidence from which it was drawn. Scottish Ministers will then determine whether it meets the principles for a fair and meaningful contribution (in terms of the statement of principles published under section 15 of the Act^[42]).Where it is agreed that the contribution meets these criteria, organisations will enter into binding agreements with Scottish Ministers.

The agreement will lay out the payment terms. It is envisaged that there will be at least two different types of agreement depending on the data available to inform financial modelling. For some organisations, a defined contribution will be sought, reflecting anticipated applications from survivors relevant to the organisation. As part of such a contribution, a review mechanism will be proposed as part of the agreement in order to reflect volumes and levels of redress payments determined during the lifetime of the scheme. For organisations where there is insufficient data to apply financial modelling, the approach to contributions may provide for the payment of the accumulated costs of all determined applications where the organisation is named. In both scenarios the contribution provided will be considered as an overall contribution to the scheme – for the benefit of all survivors of abuse who receive redress payments.

In circumstances where an organisation fails to fulfil their contractual obligations, Scottish Ministers will have the option of removing the relevant body from the contributor list, meaning that the organisation will not have future waivers, signed by redress applicants receiving payment, applied to them. The Scottish Ministers may also remove an organisation from the contributor list with retrospective effect where appropriate. The Act states that where a scheme contributor fails to pay the financial contribution which that contributor has agreed to pay to the Scottish Ministers, the organisation may be retrospectively removed from the contributor list. The Scottish Ministers must carry out assessment of any contribution made and allocate it against redress payments as they consider appropriate and in accordance with the statement of principles published in terms of section 15 of the Act. Any unfunded waivers will be revoked, returning the rights to raise civil action against that organisation back to the applicant.

The contributor list detailing those organisations who have made fair and meaningful contributions to the redress scheme has been published.^[43]

10.4 Sanctions in relation to application fraud

It is essential that the redress scheme is robust and credible to ensure that survivors, contributors and others can have confidence that the appropriate level of redress payments are being made to the right people. A balance needs to be struck between creating a scheme that treats survivors with compassion, dignity, and trust, and ensuring that a proportionate approach is taken to deterring and detecting fraudulent applications for redress. Care has been taken not to create onerous burdens on survivors and to retain flexibility in evidential requirements in order to properly recognise the difficulties arising from the often profoundly personal nature of the abuse, the fact that it is historical so evidence gathering opportunities are now restricted and the limitations of record keeping by institutions in the past.

The application form will include a declaration as to the truth of the contents of the statement and as to the authenticity of any supporting documents. It will also include a warning that misleading statements or concerns over the authenticity of supporting documentation could potentially result in referral to the police for investigation, if fraud was suspected. As currently occurs within the Advance Payment Scheme, supporting documents submitted to confirm residence in an eligible setting will be verified in every case.

The Act provides (in section 74(1)) that a person is liable to repay the Scottish Ministers the value of any redress payment to the extent that it is paid to the person due to a "relevant error". This encompasses both an error in making a redress payment and an error which Redress Scotland determines led to the determination of an application being made incorrectly or on the basis of incorrect or misleading information, in a way which materially affected the determination. The latter would apply in the case of fraud.

The Act provides a process for the determination of a redress application to be reconsidered where Redress Scotland or the Scottish Minsters have cause to believe that it has been materially affected by an error. It also allows for a person to be notified about this process, to be given the opportunity to make representations and to request a review of the outcome of the reconsideration. The draft Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 supplement this, to create a robust legal framework, providing for how reconsiderations and reviews affect any offer of a redress payment already made or accepted (including any waiver already signed and returned to accept a payment).

The draft regulations are also designed to ensure that people will have support to engage in the reconsideration and review process by way of payment of legal fees and reimbursement of costs and expenses in certain circumstances.

Section 97 of the Act makes provision about payments, other than redress payments, which have been made in error, ensuring that a person is liable to repay these to the Scottish Ministers. The Redress for Survivors (Historical Child Abuse in Care) (Payments Materially Affected by Error) (Scotland) Regulations 2021^[44] which came into force in January 2022 add to this, providing a process for reconsidering and reviewing decisions to make payments mentioned in section 97(2) of the Act.

The exercise of recovery powers in relation to redress and other payments materially affected by error will sit with Scottish Ministers in their general administration of the scheme.

Whilst a bespoke offence of making a fraudulent application to the scheme has not been created, such conduct could be investigated and prosecuted under the existing common law offence of fraud.

10.5 Enforcement in relation to payments made in error

It is possible, although unlikely, that the redress scheme could make a payment to an applicant of an incorrect sum or make a payment where none was due at all due to an administrative mistake or an error in relation to the decision-making process. As described above, in these circumstances, the Act allows for the Scottish Ministers to recover any monies over and above the amount which the applicant would have received if not for the error (in the form of a lump sum or instalments).

10.6 Monitoring and enforcement in relation to the waiver

Applicants choosing to accept an offer of redress must sign a waiver relinquishing their rights to pursue legal actions against any organisations which appear on the contributor list at the time of signing. Scottish Ministers will not proactively share the personal details of any individual who has signed a waiver. However, where a scheme contributor is being pursued by an individual for damages, they may ask Scottish Ministers to confirm whether or not that particular individual has signed a waiver prohibiting them from pursuing the organisation in court.

The scheme contributor may only use the information or disclose it to a third party in order to bring the relevant legal action to a close. However, the Act prohibits the contributor from using the information for any purposes which are inconsistent with the proper functioning of the redress scheme or which contravene data protection law.