Redress For Survivors (Historical Child Abuse In Care) (Scotland) Act 2021 - payments materially affected by error: statutory guidance

Liability for Repayment to Scottish Ministers

6. The provisions of the Act and subsequent Regulations should instil confidence in the processes and mechanisms which are in place to deal with situations of error or fraud.

7. For the purposes of the Act and the Payment Regulations, a "relevant person" is either: a person to whom a relevant payment was made; or a person who received payment in respect of a report, support or, as the case may be, the matter in relation to which costs or expenses were reimbursed as part of a relevant payment.

8. Section 97(2) of the Act outlines the types of "relevant payment" which could be subject to recovery if materially affected by error, namely: payments in respect of a report commissioned by Scottish Ministers; the provision of support; the reimbursement of costs and expenses occurred in connection with the making of an application; and fees for legal work. However, payments made due to error that fall under any of these categories cannot be recovered from the applicant to whose redress application they relate (who will not have been the real beneficiary of the payment) (section 75(6)).

9. A relevant person is liable to pay Scottish Ministers the erroneous portion of any such payment (section 97(4)).

10. An "error" includes an error when making the payment in a way which materially affected the decision. It also includes an error which Scottish Ministers consider led to the decision to make the payment being made incorrectly, or correctly but on the basis of incorrect or misleading information, in a way which materially affected the decision.

11. Under section 83(1) of the Act, "reports" include any necessary reports commissioned or arranged by Scottish Ministers with the consent of the applicant, for the purpose of progressing or determining an application or for review and reconsideration purposes.

12. In the context of the scheme, "support" includes emotional, psychological, or practical support as Scottish Ministers consider necessary given the person's needs, in connection with deciding whether to make an application or with the making of an application (section 89(2)). It can, in certain circumstances, also include emotional or psychological support in connection with the abuse to which an application relates, given the person's needs, and for such period as they consider appropriate (section 90(5)).

13. In relation to costs and expenses, Scottish Ministers have made regulations as required by section 91: the Redress for Survivors (Historical Child Abuse in Care) (Reimbursement of Costs and Expenses) (Scotland) Regulations 2021.

14. The costs and expenses which may have been incurred could have been in relation to:

a) obtaining information or evidence in connection with an application,

b) verifying such information or evidence for the purposes of an application,

c) the reasonable travel, accommodation, subsistence and care costs (for the care of children or other dependants) associated with an applicant (and one person accompanying the applicant) who has been invited to make oral representations to Redress Scotland,

d) any other cost and expenses which Scottish Ministers are satisfied was reasonably incurred in connection with the application, for example:

i. the cost of an applicant instructing or attending a psychological/medical assessment in support of their application,

ii. the cost of translation services or other services to assist an applicant requiring support for the purposes of applying to the scheme,

iii. the cost of bank charges where the applicant has a bank account outside of the UK.

15. Under the Act, "legal work" includes legal work reasonably carried out in relation to a proposed application or in the making of an application for redress. Scottish Ministers have a duty to pay certain fees for such work, including, where applicable, in exceptional or unexpected circumstances.

16. Regulation 2(1) of the Payments Regulations sets out that the decision on whether to recover payments materially affected by error lies with Scottish Ministers and Redress Scotland. There may be some circumstances in which, following full consideration, it would not be appropriate to seek recovery.

17. Repayment arrangements will be made in consultation with the relevant person who received the payment in error. The amount to be paid will be the full amount, or the difference between what was paid and what should have been paid had the error not occurred. As such, if for example £530 is paid in error instead of £350, an obligation to repay only arises in respect of the overpaid amount (i.e. £180).