Redress For Survivors (Historical Child Abuse In Care) (Scotland) Act 2021: statutory guidance – evidential requirements and determinations by Redress Scotland - Updated August 2024

Evidential Requirements and Determinations by Redress Scotland – Updated August 2024

Status of this Guidance

1. This guidance is issued under section 106 of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (“the Act”).

2. Applicants must submit with their application such information and evidence as the Scottish Ministers require (section 29(1)(e) of the Act).

3. This guidance applies to all those with an interest in connection with the making, or consideration of an application for redress. This includes Redress Scotland, survivor applicants to the redress scheme, nominated beneficiaries, applicants for next of kin payments (“next of kin applicant”) and their legal representatives. All persons to whom this guidance applies must have regard to it. This guidance relates to matters connected with information and evidence and in particular addresses the following issues:

• The sources and types of such information and evidence and additional information and evidence that an application must contain;
• The types of circumstances where it might be appropriate for Redress Scotland to seek information and evidence in determining an application.

4. This guidance also covers:

• The determination of applications by panels of Redress Scotland under section 36 of the Act, including the standard of proof to be applied and the operation of the presumption in section 36(3) of the Act.

5. Separate guidance is available for next of kin applicants.

Challenges

6. Survivors, and their next of kin, may face challenges in obtaining information and evidence both of being in care in the settings covered by the redress scheme, and of abuse that happened a long time ago. Many survivors will not have told anyone what happened to them at the time, or if they did, it may not have been recorded or acted upon.

7. It is also understood that record keeping was often inconsistent or inadequate in the past, and that for a variety of reasons, records which were kept may no longer be available.

8. This understanding and knowledge has been applied in setting information and evidential requirements and care has been taken not to create barriers or burdens which are simply too high, or unachievable.

9. Organisations responsible for relevant care settings and all local authorities are aware of Scotland’s Redress Scheme and their role in helping applicants find supporting evidence and documents.

Principles and Presumption of Truth and Accuracy

10. The redress scheme is an alternative to court and does not seek to establish fault or liability. The evidence required to support a redress application is different to that required to support an action in the civil courts or a prosecution in the criminal courts. The word ‘evidence’ is used throughout this guidance simply to make clear what should be provided in support of an application.

11. Section 36(3) of the Act provides that, in determining an application, the panel members must start with the presumption that any information provided by the applicant in respect of the application is true and accurate to the best of the applicant’s knowledge and belief.

12. The redress scheme must, however, be robust and credible to ensure survivors, and others, have confidence that the appropriate levels of redress payments are being paid to those eligible to receive them. The redress scheme must treat all applicants with dignity, respect and compassion, whilst having adequate checks and balances in place to deter and detect fraudulent applications.

13. The standard of proof for eligibility is the balance of probabilities. This means that Redress Scotland must be satisfied it is more likely than not that the applicant is eligible for redress. Further guidance on the standard of proof is found later in this guidance.

Roles and Responsibilities

14. Redress Scotland (which is independent of the Scottish Government) is solely responsible for determining the eligibility of an applicant and the level of redress payment to be offered. Decisions and determinations about applications will be made by panels of members of Redress Scotland. A minimum of two panel members will consider a fixed rate application and a minimum of three panel members will consider an individually assessed application.

15. Case workers from the Scottish Government will support and communicate with applicants. The Scottish Government also provides other business and administrative support; but it is not involved in making decisions on applications.

16. Case workers are available to assist applicants, if the applicant wishes, to obtain evidence and documents which must be provided with the application or which may support the application.

17. Where required evidence or documentation is missing from the application, case workers may contact the applicant (or their chosen point of contact) in advance of submitting the application to Redress Scotland.

18. However, it will be the applicant’s choice as to whether the application is complete enough to be sent to Redress Scotland.

19. Once Redress Scotland has considered the application and supporting documents, they may wish to request that the applicant provides further information in relation to the application. If so, they will write to the applicant (via a case worker) to request this information.

Support to Apply

20. Scotland’s Redress Scheme has been designed and developed to offer applicants support at every stage of the process.

21. The kind of evidence needed to accompany an application for redress may come from diverse sources. In some cases it may already be in the applicant’s possession, or in the possession of others who were in the same establishment that they have kept in touch with.

22. Case workers can offer assistance to applicants on how to obtain supporting evidence and documents and can be contacted on 0808 175 0808.

23. More information about the right to ask for personal information from those who may hold relevant records about an applicant's time in care, and how that process works, can be found at the Information Commissioner's website. The Information Commissioner’s Office is the UK’s independent regulator for data protection and information rights.

24. Requests for personal information, verbally or in writing, are called Subject Access Requests. The main care providers, their representatives, and all local authorities are aware of Scotland's Redress Scheme and their role in helping survivors find supporting evidence and documents, so it may be helpful to highlight that this is the purpose of a request.

25. There are limitations to what information will be provided through Subject Access Requests as those who hold the records must disclose information in a manner compliant with data protection legislation. In some circumstances, this may mean that some of the information is withheld or redacted (i.e. blanked out)^[1].

26. A conversation with a case worker is often the best first step to exploring the most likely and effective routes to obtaining evidence and documents to support applications for redress. Case workers have undergone extensive training and are sensitive to the needs of applicants. Their knowledge builds on the experience and learning gained from working with hundreds of successful applicants to the Advance Payment Scheme and Scotland’s Redress Scheme thus far.

27. Some people may feel they would benefit from additional support to access records and supporting documentation or may require practical or emotional support. In these circumstances, case workers will be able to refer applicants to the Redress Support Service. Again, applicants are encouraged to speak with case workers to explore the assistance available.

28. Funding for advice and assistance from solicitors is available to applicants. Solicitors have valuable experience in collecting and collating evidence to support actions in court, many of the same types of evidence will be relevant to applications for redress. Further information on this can be found in the payment of legal fees guidance.

29. Section 79 of the Act gives the Scottish Government the power to issue notices to individuals (other than the applicant) or organisations to compel them to provide specified evidence. It is likely that these notices will only be issued when attempts made by the applicant, or their representative, have failed (for example where an organisation relies on an exemption under Schedule 3 of the Data Protection Act 2018 and declines to release information). It may also be used where there has been a failure to respond to a verification request from the Scottish Government. It is not anticipated that this power will need to be used very often, given the experience since the scheme launched has been that evidence requested by survivors has been provided willingly by those who hold it. As exercising this power would mean the Scottish Government may receive information about the applicant which they themselves are not aware of (or which they would not choose for the Scottish Government to have), it will only be exercised with the agreement of the applicant or if instructed by Redress Scotland.

30. The Scottish Government has engaged with the organisations most likely to hold records relevant to an application for redress (including local authorities, organisations responsible for care settings and Police Scotland) and will continue to do so throughout the life of the scheme. Opportunities for improving or streamlining the processes for applicants accessing records or documents will be fully explored.

Information and evidence to be submitted by applicants for fixed rate and individually assessed redress payments (requirements under section 29 of the Act)

31. The information and evidence required to be submitted by applicants for fixed rate or individually assessed payments, under section 29(1)(e) of the Act is noted below.

32. Applicants are required to submit:

• A completed and signed application form, including a written statement which can be included or attached to the application form.
• Evidence of identification.
• A supporting document to confirm that the applicant was resident in a relevant care setting as a child before 1 December 2004.^[2]
• Where the application is for an Individually Assessed Payment and relates to abuse that occurred whilst the applicant was resident in multiple relevant care settings, the applicant should, where possible, provide supporting documentation to confirm residency in each relevant care setting.
• If an applicant was resident in a private boarding school when the abuse took place, the applicant must submit documentary evidence of who organised and paid for the placement.
• Where the application is for an Individually Assessed Payment, supporting documentation to establish the abuse to which the application relates, must also be submitted.
• If an applicant, or the person in respect of whom an application is made, has received or has become entitled to a relevant payment in terms of section 42 of the Act, supporting documentation in relation to that relevant payment is required.

33. Notwithstanding these general requirements, there may be circumstances where one or more of the above is not submitted by the applicant. Further guidance on this is set out below.

Verification of documents submitted

34. Case workers will seek to verify the information contained within the application and supporting evidence and documents submitted.

35. This will normally be carried out by contacting the organisation or individual that produced the document, or otherwise provided it to the applicant, to confirm that it is a true copy of an original document. Where the document is to establish that the applicant was resident in a relevant care setting, this may also be carried out by verifying with the care setting, or the organisation with responsibility for the care setting, that the applicant was a resident. More information is contained within the Privacy Notice.

36. If an applicant, or the person in respect of whom an application is made, has received or has become entitled to a relevant payment in terms of section 42 of the Act, that information will also be verified, and further guidance is provided at paragraphs 94-95.

37. The outcome of this verification process will be confirmed to Redress Scotland when the application is passed to them for determination.