Redress For Survivors (Historical Child Abuse In Care) (Scotland) Act 2021 - pausing, withdrawing and making more than one application: statutory guidance – updated August 2024

Pausing, Withdrawing and Making More Than One Application

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. 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

3. This guidance details below the process for an applicant when considering:

• pausing and resuming an application submitted to the scheme under section 32 of the Act;
• withdrawing an application to the scheme under section 33 of the Act; and
• submitting more than one application to the scheme under section 30 of the Act.

Pausing and resuming an application

4. All applicants have the right to request the pausing of their application at any time prior to a determination of the application being made under section 36 of the Act. Similarly, an applicant can request that their application is resumed following the pausing of an application.

5. Applicants who want to pause or resume their application must inform the Scottish Ministers of this request in writing, either by post or email. Applicants may wish to contact their caseworker prior to sending a letter or email, should they require further support.

6. Once the Scottish Ministers receive a request to pause an application, if the application has already been submitted to Redress Scotland for a determination, they must inform Redress Scotland as soon as possible. Where Redress Scotland have been informed of a request to pause an application, Redress Scotland must pause any further determination of the application to which the request relates. No further enquiries in relation to the application will be made by Redress Scotland or Scottish Ministers whilst an application has been paused.

7. Any information received by Scottish Ministers arising from enquiries made before the application was paused, will be collated and held until such time as the application has been resumed or withdrawn. Redress Scotland will only take further action where they are informed that the applicant has requested that their application be resumed, or where the application has been withdrawn.

8. An application that has been paused will be treated as having been withdrawn on the final day of the “application period”. Scottish Ministers will take no further action unless the applicant, on or before that day, either requests that the application be resumed or requests that it be withdrawn. This provides a final date for conclusion of the application in the event that there is no further engagement by the applicant with the paused application. The application period began on 7 December 2021 (the date that section 31 of the Act came into force), and ends on whichever is the later of (a) 7 December 2026; or (b) 2 years after the day the Scottish Child Abuse Inquiry publishes its final report. Scottish Ministers may by regulations extend that application period in accordance with section 31(2) and (3) of the Act.

Withdrawing an application to the scheme

9. All applicants have the right to request the withdrawal of their application at any time prior to a determination being made under section 36 of the Act. Once a determination has been made, the option of withdrawal under section 33 of the Act is no longer possible.

10. Requests to withdraw an application must be made in writing, by email or post, to the Scottish Ministers. Applicants may wish to contact their caseworker prior to sending a letter or email, should they require further support.

11. Once the Scottish Ministers receive a request to withdraw an application, and if the application has already been passed to Redress Scotland for determination, they must inform Redress Scotland as soon as possible. When Redress Scotland is informed of such a request, they must stop any further determinations in relation to that application.

12. Following notification of a withdrawal, the application form and any documents submitted will be destroyed. A small amount of information will be retained for reviewing and improving the scheme as well as publishing anonymised statistical data on the scheme. More information can be found in the Privacy Notice for Survivors or the Privacy Notice for Next of Kin.

13. Where an information request in connection with the application has previously been made to another person/organisation, and a response is still pending, the Scottish Ministers will notify the person/organisation that the information is no longer required.

Cases where more than one application may be permitted

14. Section 30 of the Act provides that, under certain circumstances, applicants to the scheme may be able to submit more than one application, but only one redress application can be ongoing at any time. The circumstances for additional applications are set out below.

Individually assessed application following a determination that the applicant is eligible for a fixed rate payment (section 30(2) of the Act)

15. An application for an individually assessed payment may be made by a person who has already received a determination of eligibility and offer of a fixed rate payment. However, the fixed rate offer must be accepted or rejected prior to submitting an individually assessed application. It is not possible to have two applications for the same applicant, running concurrently.

16. Subsequent individually assessed payment offers are subject to the rule under section 39(3)(a) of the Act which ensures that any fixed payment previously paid is taken into account in determining the subsequent payment for an individually assessed payment.

Where a survivor has already received an individually assessed payment (section 30(3)of the Act)

17. A further application for an individually assessed payment may also be made where an application for an individually assessed payment has previously been made and the applicant was offered and accepted a redress payment lower than a level 5 payment (£100,000).

18. Redress Scotland must be satisfied, based on the information provided in the permission to reapply form, that this further application is justified on the basis that:

• new evidence is available which the person had a reasonable excuse for not providing in connection with the previous application. A reasonable excuse may include, for example, where subsequent findings of the Scottish Child Abuse Inquiry have been published, there has been a subsequent relevant criminal conviction, or new evidence has come to light. The new evidence must be material evidence that the applicant considers would merit consideration by the panel of a higher level payment, than was previously made. Any new evidence which does not have the potential to alter the previous determination may not be considered sufficient by Redress Scotland to justify a further application; or
• regulations have been made and approved by Parliament modifying the eligibility criteria for the scheme.

19. Any redress payment which was previously paid is taken into account when determining the subsequent application and is deducted from any new offer (see section 39(3)(b) of the Act).

Next of kin application where an application for a redress payment has previously been made by the survivor (section 30(4) of the Act)

20. An application for a next of kin payment may be made where:

• a survivor had previously applied for a fixed rate payment or an individually assessed payment but died while the application was ongoing and without any redress payment being paid; and,
• the eligibility requirements for next of kin payments detailed in section 24(1) of the Act are met.

21. Where the application was for an individually assessed payment, the deceased applicant must have died without a fixed rate payment having previously been paid – whether under a previous application for a fixed rate payment or, as an element of an individually assessed payment previously paid.

22. The naming of a nominated beneficiary, as set out in the guidance on nominated beneficiaries, would generally preclude a next of kin application to the scheme. However, a next of kin application may still be permitted where:

• the nominated beneficiary did not take over the application; or
• the nominated beneficiary, who was invited to take over the application and accepted the invitation, died while the application was still ongoing without having either accepted a redress payment or having received a determination that they were not eligible for a redress payment, for example, as a result of their own unspent relevant convictions.

23. A person can request permission to apply for a next of kin payment due to exceptional circumstances under section 25 of the Act. This type of permission can only be sought where the deceased survivor had applied for and been offered a redress payment (either a fixed rate or individually assessed payment) but the offer had not been accepted during the time it was valid and the person then died.

Where there is more than one child as next of kin (section 30(5) of the Act)

24. Multiple children can apply as next of kin for the one deceased survivor; section 30(5) of the Act provides that separate applications may be made. In this scenario, the £10,000 payment is split equally by the number of children eligible to apply. For example, there may be cases where some, but not all, of the surviving children apply to the scheme. In those circumstances, the share apportioned to those who do not apply will not be redistributed among the others. The same principle would also apply to any payment, in whole or part, apportioned to other surviving children who are found to be ineligible by virtue of any unspent relevant convictions for serious offences, as described under sections 60 and 62 of the Act. Further guidance is available for next of kin applicants.

Where an application has been withdrawn (section 30(6) of the Act)

25. Where an applicant withdraws their application, section 30(6) of the Act provides that they may submit a further application. This is permitted where that further application is for a type of redress payment they would have been able to apply for had the withdrawn application not been made. For example, an applicant may apply for and receive a fixed rate redress payment, then apply for but withdraw an application for an individually assessed payment. Section 30(6) of the Act permits them to submit a further application for an individually assessed payment. Essentially, an application that has been withdrawn is to be treated as if it was never made.

Where an applicant’s previous convictions status has changed (section 30(7)of the Act)

26. Where an application for a redress payment has previously resulted in a determination under section 60 of the Act that the person was precluded from being offered a redress payment, but as a result of an appeal in respect of a conviction or sentence, section 60 of the Act will no longer apply in respect of an application by the person, a further application can be made. This applies to applications for fixed rate, individually assessed and next of kin payment.

Where no redress payment has been offered following a previous application (section 30(8) of the Act)

27. An application for a redress payment may be made where the applicant has not previously received a redress payment of a particular type despite having made an application for it, but Redress Scotland is satisfied that special circumstances exist which justify allowing a further application.

28. For example, section 30(8) of the Act may apply where an applicant was previously determined to be ineligible for a redress payment or where the applicant simply chose not to accept the redress payment which was previously offered to them. It may also cover where they had applied for an individually assessed payment but received nothing because they had previously received a fixed rate payment and the determination was that the payment of a further sum was not appropriate. In each case, Redress Scotland would need to be satisfied that special circumstances exist which justify allowing a further application.

29. As per section 30(9) of the Act, special circumstances may include:

• the person’s individual circumstances, for example, serious illness or injury of the applicant;
• new evidence is available which the person had a reasonable excuse for not providing in connection with the original application. A reasonable excuse may include, for example. where subsequent findings of the Scottish Child Abuse Inquiry have been published, there has been a subsequent relevant criminal conviction, or new evidence has come to light. The new evidence must be material evidence that the applicant considers would merit further consideration by the panel. Any new evidence which does not have the potential to alter the previous determination may not be considered sufficient by Redress Scotland to justify a further application; or
• regulations have been made and approved by Parliament modifying the eligibility criteria for the scheme.