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

Footnotes

1. See Consultation and engagement on a potential financial compensation/redress scheme for victims/survivors of abuse in care, SHRC, InterAction Action Plan Review Group and CELCIS, 2018.

2. The Act makes provision for the closure of the National Confidential Forum due to low take up in the 2018/19 financial year. The establishment of the financial redress scheme creates an opportunity to consider the current package of wider reparations that is available to survivors of historical child abuse in care. Please see the Bill's Policy Memorandum and Explanatory Notes for more details.

3. Although, importantly, this provision only applies where the abuse took place after 26 September 1964, so survivors who were abused before this date are not able to make civil claims against their abusers given the law on prescription. This is discussed further in Section 1.3.1.

4. See for example – 2018 Scottish Child Abuse Inquiry Case Study no. 1: The provision of residential care for children in Scotland by the Daughters of Charity of St Vincent de Paul between 1917 and 1981, Evidential Hearings: 28 November 2017 to 30 January 2018.

5. The National Confidential Forum, The first 18 months: what we have heard so far, December 2016, page 10.

6. A 'relevant care setting' means a residential institution in which the day to day care of children was provided by or on behalf of a person other than a parent or guardian of the children resident there, or a place in which a child resided while being boarded out or fostered. The full definition is provided in the Act. Please see the Policy Memorandum and Explanatory Notes for more information.

7. Scotland's Redress Scheme: contributor list - gov.scot (www.gov.scot)

8. Protecting Scotland's Future: the Government's Programme for Scotland 2019-20: Protecting Scotland's Future: the Government's Programme for Scotland 2019-2020 - gov.scot (www.gov.scot)

9. 2019 IICSA Accountability and Reparations Investigation Report at page 104.

10. Daly K. (2017) Redress for Historical Institutional Abuse of Children. In: Deckert A., Sarre R. (eds) The Palgrave Handbook of Australian and New Zealand Criminology, Crime and Justice. Palgrave

Macmillan, Cham.

11. Scotland's National Performance Framework

12. Scotland's National Performance Framework

13. The Social Security (Income and Capital Disregards) (Amendment) Regulations 2021 (legislation.gov.uk)

14. The list of organisations under investigation by the SCAI is available at the SCAI website

15. The Redress for Survivors (Historical Child Abuse in Care) (Payment of Legal Fees) (Scotland) Regulations 2021 (legislation.gov.uk)

16. Redress for Survivors (Historical Child Abuse in Care (Scotland) Bill: Policy Memorandum (August 2020)

17. Scotland's Redress Scheme: contributor list - gov.scot (www.gov.scot)

18. Survivors who accept payments through the redress scheme will waive their right to raise civil proceedings against scheme contributors. Therefore, by making financial contributions to the scheme, organisations should be able to mitigate the potential impact of legal action relating to historical abuse and crystallise financial risks arising from historical child abuse with respect to applicants to the redress scheme. This means that the cost of any financial contributions made by an organisation to the redress scheme should be offset against unknown costs organisations would incur in the courts if the redress scheme were not to be established.

19. Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill: Revised Financial Memorandum

20. Scotland's Redress Scheme: contributor list - gov.scot (www.gov.scot)

21. The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021: financial contributions - statement of principles - gov.scot (www.gov.scot)

22. The Act gives Scottish Ministers a power to compel information if necessary.

23. While a court determination in respect of historical abuse could potentially have a near-immediate and cataclysmic effect on the finances of an organisation, such as services would no longer be deliverable, it may be possible to structure the making of a contribution to the redress scheme in a way which would not in itself jeopardise the financial viability of the contributing organisation. Doing so would maintain the level of contribution appropriate to the historical legacy of the organisation, while seeking to protect current service users. The risks of an organisation not contributing to the scheme, can therefore be argued as being more significant for consumers than those associated with an organisation making a contribution.

24. It is envisaged that there will be at least two different types of contract depending on the data available to inform financial modelling. Some organisations will make an 'upfront' contribution, with a review mechanism 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 will centre on the payment of the accumulated costs of all determined applications where the organisation is named. In both scenarios the actual amounts paid out to applicants to the redress scheme will play a key role in the assessment of contributions, but the total amount provided will be considered as an overall contribution to the scheme – for the benefit of all survivors of abuse who receive redress payments.

25. Many current and former care providers are legally classed as charities. Under current legislation this means that an organisation's funds can only be used to further its 'charitable purposes', as laid out in its constitution. This issue may present a barrier to contributions being made by charities in some cases. The Act makes provision to clarify that contributing to redress is not contrary to any organisation's charitable purposes. No charity will be compelled to make a contribution; participation will be a matter for the charity. Therefore, there are no competition concerns linked to this particular set of provisions.

26. The Redress for Survivors (Historical Child Abuse in Care) (Payments Materially Affected by Error) (Scotland) Regulations 2021 (legislation.gov.uk)

27. The Redress for Survivors (Historical Child Abuse in Care) (Payment of Legal Fees) (Scotland) Regulations 2021 (legislation.gov.uk)

28. The Redress for Survivors (Historical Child Abuse in Care) (Payment of Legal Fees) (Scotland) Regulations 2021 (legislation.gov.uk)

29. The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (legislation.gov.uk)

30. The Redress for Survivors (Historical Child Abuse in Care) (Payment of Legal Fees) (Scotland) Regulations 2021 (legislation.gov.uk)

31. Redress For Survivors (Historical Child Abuse In Care) (Scotland) Act 2021: statutory guidance – evidential requirements and determinations by Redress Scotland - gov.scot (www.gov.scot)

32. Redress For Survivors (Historical Child Abuse In Care) (Scotland) Act 2021: statutory guidance – next of kin - gov.scot (www.gov.scot)

33. The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 and relevant secondary legislation: Data Protection Impact Assessment (Legislative) - gov.scot (www.gov.scot)

34. The percentage of eligible applicants to the redress scheme who are already accessing existing supports or services is unknown, including survivors already registered with Future Pathways. Another initiative, the Survivors of Childhood Abuse Support Fund, provides funding to 29 third sector and community based organisations over the period 2020-2024, many of who will provide services for survivors of abuse in care.

35. The Scottish Government will not pay any fees incurred in connection with legal advice and assistance on whether to pursue litigation as an alternative to making an application for a redress payment.

36. The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2021 (legislation.gov.uk)

37. 'Summary level' prosecution procedure is used for less serious offences (with the charges set out in a complaint) and may ultimately lead to a trial before a sheriff or, in justice of the peace courts, before a bench of one or more lay justices.

38. The value of level 3 on the standard scale is currently £1,000 (at time of drafting in January 2022).

39. The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (Consequential Provisions) Order 2021 (legislation.gov.uk)

40. The only exception will be where an organisation becomes subject to the duty to report or is named in a redress application which results in an offer of payment in the last three months of the financial year. In these circumstances, the information provided would not give a meaningful indication of the level of wider redress activity carried out throughout the year. In most cases, the organisation will instead be required to submit their first report following the end of the subsequent financial year.

41. Redress For Survivors (Historical Child Abuse In Care) (Scotland) Act 2021: statutory guidance – annual reports by Redress Scheme contributors - gov.scot (www.gov.scot)

42. The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021: financial contributions - statement of principles - gov.scot (www.gov.scot)

43. Scotland's Redress Scheme: contributor list - gov.scot (www.gov.scot)

44. The Redress for Survivors (Historical Child Abuse in Care) (Payments Materially Affected by Error) (Scotland) Regulations 2021 (legislation.gov.uk)