Redress For Survivors (Historical Child Abuse In Care) (Scotland) Act 2021 - payment of legal fees and related decisions: statutory guidance - updated November 2024

Background

4. Funding for applicants to obtain independent legal advice is a key element of the redress scheme. It is essential to give applicants a meaningful opportunity to obtain the support and advice that they need in connection with making their application and to allow them to make fully informed decisions when considering an offer of a redress payment. This includes survivors, next of kin and nominated beneficiaries.

5. An applicant may choose whether they apply for a redress payment with or without legal assistance or representation. Some applicants may want to instruct a solicitor from the outset of their application, whereas others may find they only want the assistance at a later stage of the process.

6. The Summary of Options will be provided to applicants along with the application form, and again when they are notified of Redress Scotland’s determination of their application. It sets out the importance of obtaining independent legal advice before signing a waiver and accepting an offer of a redress payment. This key message is also within the Help to Apply guidance and is reinforced by case workers when speaking with applicants.

7. There is a need to manage legal costs and, learning lessons from other redress schemes in which legal costs have escalated, section 92(1) of the Act provides for a prescribed sum to be paid to a solicitor in respect of legal work reasonably undertaken in making an application for redress on a person’s behalf. The payment of this sum is to be made whether or not the application was successful, and whether or not it was subsequently withdrawn.

8. Importantly, the Act provides for a degree of flexibility. In accordance with section 93(3) of the Act, an additional sum specified by Redress Scotland, in excess of the prescribed sum, must y be paid on request where Redress Scotland’s assessment is that there are exceptional or unexpected circumstances which justify it.

9. If a person sought legal advice on their eligibility to apply for a redress payment, but subsequently decided not to submit an application, a prescribed sum will still be paid for that advice in accordance with section 93(1) and (2) of the Act, where Redress Scotland’s assessment is that there are exceptional or unexpected circumstances which justify payment.

10. A request for legal fees in relation to the redress scheme is referred to as a “fee payment request.” All fee payment requests must be submitted to the Scottish Ministers. Where an assessment of the fee payment request by Redress Scotland is required before payment can be made, the Scottish Ministers will transmit the fee payment request to Redress Scotland and notify the solicitor of the outcome once Redress Scotland has made its assessment.

11. The Redress for Survivors (Historical Child Abuse in Care) (Payment of Legal Fees) (Scotland) Regulations 2021 (“the Regulations”) provide further detail on the timings and processes for applying for legal fees as provided for in sections 92 and 93 of the Act. For information relating to legal fees in respect of reconsiderations or reviews of determinations under sections 75 and 76 of the Act, please refer to the reconsideration and review guidance.