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

6. Consumer Assessment

The following questions have been considered in the drafting of this section:

• Does the policy affect the quality, availability or price of any goods or services in a market?
• Does the policy affect the essential services market, such as energy or water?
• Does the policy involve storage or increased use of consumer data?
• Does the policy increase opportunities for unscrupulous suppliers to target consumers?
• Does the policy impact the information available to consumers on either goods or services, or their rights in relation to these?
• Does the policy affect routes for consumers to seek advice or raise complaints on consumer issues?

For the purposes of this section, a 'consumer' is anyone who buys goods or digital content, or uses good and services, either in the private or public sector, now or in the future.

6.1 Redress applicants' access to legal advice

Survivors will be strongly encouraged to obtain independent legal advice before signing the waiver required under the redress scheme. The content of the waiver encourages the applicant to seek legal advice in any decision making. Some survivors may also choose to obtain legal advice and assistance at other points of the application or review process.

Section 9 of the Act requires that the Scottish Ministers must use their best endeavors to ensure that applicants and potential applicants to the scheme have the opportunity to make informed decisions. To do this, the Scottish Ministers must provide all applicants with a "Summary of Options" at key points in the application process. This document must set out the key rights an applicant has in regards to the redress scheme and other important information that the applicant should be aware of to make informed decisions.

The Act places a duty on the Scottish Ministers to pay legal fees reasonably incurred by applicants and potential applicants to the redress scheme. This includes applicants who are survivors of abuse, nominated beneficiaries, and next of kin applicants.

Legal fees reasonably incurred may include advice on eligibility, types of redress payments, the application process and matters in connection with waiver and matters in connection with a reconsideration or review process. They do not include 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. It is recognised that legal fees could be reasonably incurred in relation to applications that are ultimately unsuccessful or withdrawn.

Fee requests must be submitted directly by the legal representative to the Scottish Government Division carrying out the administrative and processing functions of the redress scheme. Requests will then be passed to Redress Scotland for assessment and decision.

Redress Scotland may pay additional legal fees where they have assessed that the costs have been reasonably incurred and that there are exceptional or unexpected circumstances which justify the payment of such a sum.

A review process is also afforded, in certain circumstances, where a solicitor is not satisfied with the decision taken in relation to a fee payment request submitted to Scottish Ministers. Requests for review should be submitted in writing to the Scottish Ministers. Requests will then be passed to Redress Scotland for assessment and decision. A request for review can be withdrawn by the solicitor, by notifying the Scottish Ministers of the withdrawal in writing, at any point in this process.

Applicants to the redress scheme will have the opportunity to approach any legal firm of their choosing which should incentivise vigorous competition between firms and ensure a good service for applicants.

The Scottish Government will offer clear guidance to survivors in relation to the types of advice the redress scheme will fund so as to prevent circumstances where an applicant finds themselves liable for costs incurred over and above those paid for by the Scottish Government.

A separate BRIA has been conducted for The Redress for Survivors (Historical Child Abuse in Care) (Payment of Legal Fees) (Scotland) Regulations 2021 made under sections 94(3),(4) and (6) and section 95(5) of the Act.^[28]

6.2 Redress applicants' legal rights

The Act provides that all payments made under the redress scheme (either fixed rate, interim or individually-assessed) will be conditional upon the applicant signing a waiver to relinquish their rights to continue or to raise a future legal action in respect of the same matters which have rendered them eligible for redress payments. This would cover potential rights of action against the Scottish Government and any other organisation which has made a fair and meaningful financial contribution to the redress scheme and has therefore been added to the contributor list at such time as the applicant signs the waiver.

Applicants will be entitled to independent legal advice funded by the Scottish Government before they take the decision to sign the waiver. If the applicant ultimately decides that they would prefer to pursue a case within the civil courts, they will be under no obligation to accept a redress payment and sign the waiver. In this regard, the redress scheme is an alternative to, and not a replacement for, existing avenues to seek redress for abuse.

We intend that applicants will also be entitled to independent legal advice where:

• there is a reconsideration of the determination of their redress application under section 75 of the Act, owing to a possible material error;
• they are notified of the outcome of the section 75 process and wish to review the determination made under that section.

We have carefully considered potential scenarios in which a reconsideration (and, where appropriate, a subsequent review) takes place after an offer of a redress payment has been accepted and a waiver has been signed. Where the outcome of the reconsideration or review is that a revised offer of a redress payment is to be made owing to a previous material error, this represents a fundamental change to the terms of the offer upon which an applicant based their previous decision to sign the waiver. It is therefore important that applicants have the opportunity to consider whether the redress scheme, and the restriction on their rights to raise civil action, remains in their best interests.

The Scottish Government's intention, as reflected in the Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022,^[29] is that where an error has materially affected the determination of a redress application, applicants will have the opportunity to accept a revised offer and leave a previous waiver intact. Provision has also been made for the applicant to be able reject the revised offer, thereby stripping any waiver they signed to accept an erroneous offer of effect.

Where acceptance or rejection is not chosen by a person within the period for intimating this to Ministers, our assessment is that the most appropriate policy choice is to provide for "deemed acceptance". This will ensure that survivors, nominated beneficiaries and their representatives can automatically benefit from higher payments where they are entitled to them. It will also ensure that where a lower payment is offered to a person and nothing is done with that offer, they will only become liable to repay the Scottish Ministers the portion of the payment given to them in error, rather than the entire payment linked to the original, erroneous offer.

The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 also include provisions to ensure that where the result of a reconsideration process is that a material error has been made and person was not eligible for or should not have received a redress payment that they have accepted (e.g. in a case of fraud), the waiver signed to effect that acceptance will be rendered of no effect. In this scenario, section 74 of the Act (liability for payments made in error) would apply, meaning that the person would be liable to repay Ministers the redress payment given to them in error.

As described above, section 9 of the Act requires that the Scottish Ministers must use their best endeavors to ensure that applicants and potential applicants to the scheme have the opportunity to make informed decisions. To do this, the Scottish Ministers must provide all applicants with a "Summary of Options" at key points in the application process. This document must set out the key rights an applicant has in regards to the redress scheme and other important information that the applicant should be aware of to make informed decisions. This includes informing applicants of their rights to access funded legal advice under the scheme.

A separate BRIA has been conducted for The Redress for Survivors (Historical Child Abuse in Care) (Payment of Legal Fees) (Scotland) Regulations 2021 made under sections 94(3),(4) and (6) and section 95(5) of the Act.^[30]

6.3 Collecting of redress applicants' personal data for the purpose of processing redress applications

When individuals apply to the redress scheme, they may need to provide personal data such as:

• Name
• Former names
• Current Address
• Postcode
• Date of birth
• National insurance number
• Contact telephone number
• Email address
• Proof of age (e.g. birth certificate, driver's license, passport)
• Proof of identity (e.g. passport, driver's license, biometric residence permit, European Economic Area (EEA) national identity card)
• Proof of signature
• Evidence to support changes of name if different from when in care (e.g. marriage or divorce certificate)
• Details of previous payments relating to the abuse mentioned in the application, e.g. CICA or a previous court settlement
• Details of any relevant serious criminal convictions.
• Documentary evidence of being in care and date/location of being in care
• Statement of abuse suffered
• Supplementary evidence of abuse suffered (only for individually assessed applications and next of kin applications)
• Bank account details

If the applicant is a next of kin, someone with power of attorney for the applicant, a guardian, or an appointee we will require documentary evidence to support this status.

For a next of kin application, we may also require the following:

• Proof of identity of applicant and the deceased survivor to whom the application relates
• Proof of the death of the deceased survivor
• Proof of relationship with the deceased survivor

Nominated beneficiaries may also need to provide evidence of:

• Proof of the death of the deceased survivor
• Evidence of nominated beneficiary's identity

Further information on the sources and types of information that an applicant must provide with an application for redress is included in the evidential requirements and determinations by Redress Scotland statutory guidance.^[31] Separate guidance has been produced on the requirements for next of kin applicants. ^[32]

The Act gives Redress Scotland the power to prioritise applications, taking into consideration the health and age of the applicant.

Data submitted through the application form is required to allow the application to be assessed by Redress Scotland, which will then be able to make a decision on the appropriate redress payment for the applicant. Scottish Ministers will collect and store personal data via an application form – the development of which will be addressed in an operational Data Protection Impact Assessment during the scheme's implementation phase. A privacy notice will be included in the application form to ensure applicants understand how their data will be processed, shared and stored. Further information on the Data Protection implications of the Act can be found in the Legislative Data Protection Impact Assessment.^[33]

6.4 Survivors' access to survivor support services

Despite efforts to make the application process as supportive as possible, the nature of the redress scheme may present emotional and practical demands for many applicants. Therefore, national and local providers of survivor support, therapeutic services (psychological and counselling) and advice centres may experience increased demand following the launch of the scheme. It is challenging to estimate the level and pattern of need. Some survivors may require short term counselling or focused practical support, others access to longer term or more specialist complex therapies. Increased demand for services may influence waiting times and the range or type of services available.

Access to therapeutic services is key to ensuring applicants have support to address the impact of childhood abuse and to help manage the emotional impact of the application process. The Scottish Government is actively engaging with relevant organisations to understand current capacity in the system and work to address any anticipated problems. The ongoing impact of the redress scheme on support organisations like these will be monitored as part of the Scottish Government's longstanding partnership work with the sector.^[34]

In addition, the Scottish Government has commissioned a Redress Support Service to provide additional elements and practical support for those applicants who feel they need it. This support also incorporates help with access to records. The Redress Support Service is operated by the In Care Survivors Alliance who deliver the existing Future Pathways support service to survivors. Though these services are wholly separate, the In Care Survivors Alliance will use its existing networks of providers to deliver practical and emotional support to applicants to the Redress Scheme, as well as emotional support offered as part of non-financial redress. The service is funded through grant funding up to a maximum of £2.4 million per annum.

6.5 Survivors' access to NHS mental health services

The redress scheme may result in an increased number of survivors seeking support from NHS mental health services, either community based or specialist. It is not possible to produce estimates for the number of additional patients. Officials have made contact with colleagues working in health policy to explore the overall impacts of the scheme on NHS Boards.

6.6 People who use services run by organisations responsible for historical child abuse

The Scottish Government recognises the need to consider the appropriate approach to seeking financial contributions to the redress scheme in the context of potential contributors' varying circumstances. Equally, those contributing will need to consider a full range of financial and operational factors, such as existing sources of income and assets, projected costs such as service delivery, potential civil litigation cases, and payment terms. Local authorities will need to consider their statutory requirements to provide a broad range of services for children and adults.

A number of organisations from which contributions are sought continue to provide much needed services. In an effort to make the delivery of the contribution fair and meaningful for the scheme and the organisation, building on an assessment of the appropriate contribution focused on the organisation's legacy in respect of historical abuse, Scottish Ministers will be required to take in to consideration any circumstances which may impact an organisation's ability to sustain their current services. The fair and meaningful contribution must fundamentally recognise the past, seeking to make delivery of that contribution manageable allows the future to be considered.

The provision of fair and meaningful financial contributions therefore does not seek to directly affect the provision of services, but rather to offer an appropriate, proportionate and positive opportunity to address the harms of the past.