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

Impact on contributors to the Scheme

What is a contributor?

The Scottish Government believes that organisations which were responsible for the care of children at the time of the abuse should meaningfully participate in this national collective endeavour to recognise the harms of the past, by contributing to the Scheme both financially and in acting consistently with its spirit and ethos. Seeking contributions from those organisations is consistent with the views expressed by survivors when the scheme was being designed.

Organisations which may be included as contributors to the Scheme include public authorities, voluntary organisations and other persons (other than individuals) who exercise or have exercised functions in relation to safeguarding or promoting the welfare of children or protecting or furthering their interests (‘relevant organisations’) as described in section 14 (Scheme contributors) of the Act. This would include, for example, an organisation which owned, managed or was otherwise connected to relevant care settings as described in section 20 (Meaning of “relevant care setting”) of the Act) or an organisation which placed children in a relevant care setting(s) it was responsible for. A broad range of organisations are therefore potential contributors to the Scheme.

Organisations that were responsible for the care of children at the time of the abuse have been asked to participate in Scotland’s Redress Scheme. This is what survivors said that they wanted in successive consultations. An organisation can only become a Scheme contributor, if, in the opinion of the Scottish Ministers, it has made, or has agreed to make a fair and meaningful financial contribution, and which, in agreeing to make such a contribution, acknowledges the wrongfulness of, and the harm caused by, the historical child abuse which took place (see section 14 of the Act).

When an organisation makes a fair and meaningful financial contribution, and acknowledges the harms of the past, they are known as a ‘Scheme contributor’. All other organisations who do not become a contributor, may be referred to as a non-contributor or provider (of in-care provision) depending on the context they are being mentioned.

The Act requires the Scottish Ministers to maintain a public list of all contributors to the Scheme, and this includes the date they were added to the list, the financial contribution they are making or has agreed to make, and if relevant, a note which confirms if a contributor has been removed from the list and the date that this removal takes effect from. As of 31^st May, there were 17 organisations participating in the redress Scheme and to date, no contributor has been removed from the list.

The purpose of the contributor list is to show the organisations that are eligible for inclusion on the waiver as a result of them making a fair and meaningful contribution to the redress Scheme. The waiver applies to the organisation named as the contributor on the list, and not to any individual care setting.

In particular circumstances, Scheme contributors will be removed from the contributor list. Scheme contributors which fail to make the financial contribution which they had agreed to make may be removed from the contributor list in accordance with sections 15 (Statement of principles in relation to contributor list) and 16 (Retrospective removal of scheme contributor from contributor list) of the Act (including with retrospective effect where appropriate). In accordance with section 46 of the Act, where retrospective removal occurs, rights to pursue legal action against the Scheme contributor will be restored to applicants who signed waivers from the date that the Scheme contributor was retrospectively removed from the list.

Applications linked to organisations

The amount of redress paid to survivors will not be affected by whether any particular organisation has contributed to the Scheme. An applicant will receive the redress payment that Redress Scotland determines they are entitled to, whether or not the organisation responsible for their care has contributed. Where an organisation does not contribute, the Scottish Government will meet any shortfall in Individually Assessment Payments (IAP), including in circumstances where this may mean paying the full redress payment. In addition, Scottish Government will fund the total value of any redress payments made in relation to Next of Kin (NoK) and Fixed Rate Payments (FRP).

As of 31 May 2023, Scotland’s Redress Scheme had received 2445 applications since the Scheme opened 8 December 2021. Of those, 614 applicants have accepted a redress payment offer, as determined by Redress Scotland. At the time of publication, redress payments of more than £30,000,000 have been made.

Within the applications that have resulted in a determination from Redress Scotland, as of 31^st May 2023, they have been allocated to organisations as follows:

• 468 applications have been linked to at least 1 contributor
  • This breaks down as follows: 39 NOK, 121 FRP, and 308 IAP
  • 251 of those IAP applications only named contributors
• 3 contributors have not been named in an application which has led to a determination
• 208 applications have been linked to at least 1 organisation not listed as a contributor to the Scheme
  • This breaks down as follows: 9 NOK, 46 FRP and 153 IAP
  • 99 of those 153 IAP applications only named a non-contributor
• 24 non-contributors have been named in at least 1 application which led to a determination.

In monetary terms, the total value of IAP applications where only a contributor was named is c. £11,300,000, c. £2,900,000 for IAP payments where both contributors and non-contributors are named (where approximately 1/3 of the value of each payment was unfunded) and c. £13,500,000 for IAPs where only a non-contributor was named (where approximately 2/3 of the value of each payment was unfunded).

At the time of publication, the majority of all application types were linked to one or more contributors to the Scheme.

Factors which influence contributions

During the passage of the Bill, some potential contributors expressed initial support for the waiver, but as scrutiny of the Bill proceeded, it became clear that other factors were affecting their decision-making on whether they would become a Scheme contributor. For some of those organisations, despite their general support for the waiver to be included in the Bill, the waiver may not have proved to be essential or an overwhelming incentive for them to join. It is not possible to quantify this as those who have chosen not to participate as a contributor do not disclose their rationale and, in most circumstances, have taken legal advice before confirming their decision and as such, choose to keep their considerations private.

The Redress, Relations and Response Division of the Scottish Government issued a survey^[3] (Appendix D) with accompanying Privacy Notice (Appendix E) to all organisations who had engaged with the Scheme in some capacity, to better understand the impact the waiver had had on their decision to become a contributor. A total of 7 responses (6 contributors, 1 non-contributor) were received.

The contributor response rate of 6/16 (excluding Scottish Ministers) enables a good assessment of the impact of the waiver on their decision whether or not to join the Scheme; however, each contributor’s circumstances will be unique to them and we should not infer that their views are generalisable or in alignment with those who did not participate in the survey. The same limitation exists for the views of the 1 non-contributor that participated, and considered in light of the 24 non-contributors we know to have been named in at least 1 application to the Scheme which resulted in a redress payment determination by 31^st May.

In response to questions 2, 5, 9 and 10, the survey found:

• 6 responders said the waiver was ‘very’ or ‘somewhat’ important in reaching their decision on whether or not to become a contributor, with 1 saying it was ‘not very important’.
• 5 responders said they would have been ‘likely’ to join the Scheme, had the waiver not been included, and 2 said they would have been ‘unlikely’ – nobody said they would have been ‘very likely’.
• All 7 responders confirmed they are not aware of any attempts by an applicant who had received a redress payment attempting to pursue civil action against them.
• 4 responders knew about the provisions within the Act to seek information about a waiver (section 88 (Power to share information with third parties)).

In response to various questions within the survey, responders shared the following factors as influencers in their decision to participate in the Scheme, in addition to the waiver:

• Access to relevant insurance which may apply in the event of civil action being raised by a survivor
• Financial sustainability of their organisation, and impact on ability to deliver current and future services
• Whether or not their charitable aims/activities make it possible for them to use funds for this purpose
• Their assessment of the likelihood of applications being made where they are named, the number of applications, and the severity of abuse (which affect total value of redress payments linked to them)
• Consideration of their moral or ethical obligation to survivors, a commitment to ‘making amends’ for their past and acknowledging this as ‘the right thing to do’
• Awareness of previous relevant payments over £100,000 being made to potential applicants which would mean they would not receive a redress payment in the event of applying to the Scheme^[4]
• Whether or not they could agree what a ‘fair and meaningful’ contribution was, and whether or not either of the contribution models, ‘Payments Determined’ or ‘Defined Contributions’, were suitable for them
• The impact the waiver may have on survivors and whether this represented as a barrier to them in joining the Scheme, with some saying the Scheme was a positive as it was less adversarial and more likely to result in financial redress than other options available to survivors.

From their views, it is clear that the waiver was an important factor in all considerations, to a greater or lesser extent for some, depending on other circumstances affecting their organisation. For some, their over-arching obligation to make amends was paramount, but this had to be considered alongside the financial realities of making and sustaining contributions to the Scheme, and consequently, on their ability to maintain current services. For others, the waiver was of less significance where they felt they had adequate insurance to cover them in the event of a claim being raised against them in court. For many, the uncertainty of numbers of applications and value of payments was a serious consideration, and the inclusion of the waiver was in some circumstances, seen as of critical importance to their deliberations.