Scotland's Redress Scheme - waiver on participation: impact assessment report

Impact on applications to the Scheme

The inclusion of the waiver is not at odds with a survivor centred approach. Fairly balancing the interests of survivors with the interests of the Government is important for a number of reasons which do not in themselves conflict with the interests of survivors: managing costs and ensuring sustainability of the Scheme; and maintaining the credibility and integrity of the Scheme.

However, in order to understand what effect the waiver may have had on applications to the Scheme, a number of solicitors who work with applicants were approached to gather feedback. The Scottish Government have not approached survivors directly to ask for their feedback at this time, as the survivors that we routinely engage with are those who have taken the decision to apply to the Scheme and will be aware of the waiver requirements.

It would not be appropriate for the Scottish Government to contact individual survivors who have not applied to the Scheme to ask for their views on the waiver. This could be potentially confusing and re-traumatising for survivors, and may lead some to believe that the waiver requirement was to be changed.

Applicants to the Scheme are continuously supported throughout the process, and are strongly advised to seek independent legal advice when they are asked to sign the waiver. The solicitors working with applicants are therefore well placed to provide feedback on how the waiver is perceived by both potential applicants as well as those who are considering a payment offer from Redress Scotland.

A total of 6 questions were asked and responses were received from 4 law firms. The Scottish Government do not know how many survivors each firm represents. Therefore, while the feedback provides valuable qualitative information on the impact the waiver may have, it is not possible to say how many people it applies to. The answers received to each questions have been summarised below:

Q1 – When talking with survivors about applying to the Redress Scheme, or other options available to them, how big a factor is the waiver in influencing their decision?

• One firm highlighted that they continually provide advice and assess the viability of a civil claim while they work with a client. This reduces the negative impact of the waiver should the survivor accept a redress payment, as a positive outcome will have been achieved.
• Survivors may not be aware that they have a viable civil claim before they speak with a solicitor, and may not be fully aware of the impact of the waiver.
• One firm noted that they represent some survivors (less than 5) who are fundamentally opposed to signing a waiver and would rather apply to the Criminal Injuries Compensation Authority.
• Some survivors find the waiver overly legalistic and it can be seen as a form of ‘hush’ money.
• One firm commented that the waiver is not a big factor for the survivors they represent, and that those who apply to the redress Scheme do so because they do not want to proceed through the courts.

Q2 – In your experience are survivors aware of the existence of the waiver and its impact when they initially contact you about applying to the Redress Scheme?

• 2 firms commented on the limited awareness of the waiver and the impact it may have when survivors first speak with a solicitor.
• 1 firm commented that clients were more aware of the waiver when the Scheme first launched, while some of their more recent clients heard about the waiver for the first time from the solicitor.
• 1 firm believed that the majority of survivors they dealt with were aware of the waiver to some extent.

Q3 – Are you contacted by survivors, whom you’ve not provided with any other support throughout the application process, to provide advice on the waiver once they have received an offer from the Redress Scheme?

• 3 firms noted that they do have some survivors asking them for advice on the waiver after they have received an offer from Redress Scotland; however, the numbers are low.
• 1 firm had the opposite experience, stating that they regularly have survivors seeking advice on the waiver and what alternative options are available to them.
• A small number of survivors have approached one firm after signing the waiver, as they discovered they may have had a viable civil claim which they are now prohibited from bringing.

Q4 – In your experience has the existence of the waiver prevented any survivors from applying to the Redress Scheme?

• Responses summarised below.

Q5 – If so, are you able to elaborate on the rationale behind this/these decision(s) and whether this was the sole or major factor in the decision?

• 2 firms commented that the waiver has prevented some survivors from applying to the Scheme. They said that survivors do not want to forfeit their civil claims and that some are committed to waiting to see if a civil claim becomes viable.
• 1 firm noted that they do not believe the waiver prevents a survivor from applying when a civil claim is not available to them.
• 1 firm did not believe the waiver prevented survivors from applying.
• Some survivors see the waiver as too legalistic and restricts the options available to them.
• The waiver may invoke feelings of confidentiality.

Q6 – Thinking about any negative impact of the waiver on the number of applications to the Scheme, please provide any views on how these could be reduced.

• Payments made through the Redress Scheme could be offset by any successful civil claims.
• Ensure survivors understand exactly what the waiver is and the impact it may have for them, and that that is properly explained to them.
• Provide survivors with information on the alternatives that are available to them so they are able to make informed choices.
• The language of the waiver could be updated to use less strict legal language and to focus more on recognition.

This feedback shows that some survivors are not fully aware of the waiver and the implications it could have on potential civil claims should they choose to sign it. Whilst this may have impacted on the number of applications made to the Scheme, it has not translated into individuals refusing to sign the waiver. Indeed, as of 31st May 2023, 644 offers of financial redress had been made with 614 of those being accepted and waivers subsequently signed. Of the remaining 30 offers, 3 had an outstanding review ongoing and there were 27 offers still awaiting a response. These are all still within the legislative timescale to accept the offer.

Of note is the differing experiences of firms where survivors contact them to ask for advice on the signing of the waiver. The Scottish Government strongly recommends that each survivor takes independent legal advice before signing the waiver, and one firm has noted that they regularly have survivors contacting them for this, while three have stated they receive very few such queries.

There was no consensus among respondents on whether the waiver acted as a deterrent for survivors from applying to the redress Scheme. The Scheme has been designed to be an alternative to existing avenues for financial redress rather than a replacement, giving survivors the choice to pursue whichever remedy is most appropriate for them. It is not intended to replicate the payments that survivors may receive by pursuing civil litigation, rather it is a swifter and less adversarial alternative, with a lower evidential burden than a civil court process would require.

The comments provided under question 6 will be examined further by the Scottish Government as part of ongoing review of the redress Scheme and appropriate actions taken forward.

Engagement with survivors

As set out in section 102 (The Survivor Forum) of the Act, a Survivor Forum (the Forum) has been established as part of the Scheme. This is open to all applicants and their representatives, and as of 31^st May 2023, there are around 200 members. The Forum provides a mechanism for survivors to give feedback on the delivery and operation of the scheme, and this feedback is used to ensure the Scheme’s continuous improvement.

The primary purpose of the Forum is not to act as an evaluation tool for Scottish Government; rather it is survivor led and ensures that their voice is heard and responded to. The anonymous feedback that is gathered through the Forum is shared with Scottish Ministers and senior management, and is used to improve the service.

Every survivor who applies to the scheme is given the opportunity to join the Forum; however, not all choose to do so, for a variety of reasons. Survivors who are not members of the Forum are still able to provide feedback on their experience of the Scheme at any time through their case worker. This feedback is also shared with Scottish Ministers and senior management to support ongoing improvements to the Scheme.

Key principles

Redress Scotland will apply the key principles of the presumption of truth and balance of probabilities when they are tasked with the determination of an application to the Scheme. 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. This presumption of truth is supportive of a non-adversarial and trauma informed approach to redress and recognises the challenges for individuals having to disclose personal and sensitive information about abuse.

The Act sets out the standard of proof against which an applicant’s eligibility for a redress payment will be determined. This is the civil court standard of ‘balance of probabilities’. Something is established on the balance of probabilities if the evidence presented is sufficient for the decision-maker to conclude that it is more likely than not to be true. All applications, either for fixed rate, individually assessed or next of kin redress payments are subject to the same standard of proof.

The presumption of truth is the starting point, but it is a presumption and not an absolute. In some circumstances, having considered the application, and any evidence submitted, it will be appropriate to rebut or overturn the presumption. In other cases, despite the presumption, the supporting evidence may not allow Redress Scotland to be satisfied to the required standard of proof.

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

Equalities monitoring

All public bodies, including the Scottish Government, have an obligation to eliminate discrimination, harassment, and victimisation relating to protected characteristics. Public bodies also have a duty to advance equality of opportunity between all people, ensuring that everyone is treated fairly regardless of these characteristics.

The Equalities Act 2010 designates the following aspects of personal identity as ‘protected characteristics’:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation.

One way to ensure we are treating people fairly is to collect and analyse equalities monitoring data with a view to implementing improvements.

Therefore, Scotland’s Redress Scheme offers applicants the opportunity to complete an Equalities Monitoring Form (Appendix C) when they make an application to the Scheme. Completing the Equalities Monitoring Form is entirely voluntary, as we recognise that not everyone will feel comfortable sharing this kind of sensitive information. The Form also asks for feedback on experiences of applying to the Scheme and work is on-going to capture additional feedback on different aspects of the Scheme. The information provided on the equalities monitoring form is held anonymously.

The way in which applicants receive the equalities monitoring form will depend on the way they choose to apply to the Scheme. Applicants who ask for a postal application form will receive the Equalities Monitoring Form in the application pack that is sent out to them. Applicants who apply via email will be sent an acknowledgement email or letter containing a link to an online equalities monitoring form, along with the instructions on how to access the form.

It is not possible to share a breakdown of data gathered via the equalities monitoring form, as this would be in conflict with the Privacy Notice signed by applicants. However, this data is kept under continuous review to satisfy ourselves that there is no detrimental impact on any group with a protected characteristic from applying to the Scheme, including where the inclusion of the waiver has resulted in any form of direct or indirect discrimination. Currently, there is no evidence to suggest any particular group is adversely affected by the waiver, or in being able to apply.