Keoghs Insight

Author

Khadija Sarwar

Redress for Survivors Update: Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill

Client Alerts22/03/2021

What does the Bill say?

We previously reported in September on the proposed terms of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill After many evidence sessions and proposed amendments, the Bill was passed on 11 March 2021.  

A final debate took place on 11 March and Parliament voted unanimously in favour of passing the Bill. It was much awaited as it replaces the Advance Payment Scheme which was introduced in April 2019 and provided a fixed and flat rate of £10,000 to survivors aged 68 or over, or those who are terminally ill. The new Bill represents a significant development in historical abuse claims as it has widened access to redress.

The Bill seeks to create a scheme providing redress to survivors of historical child abuse in care in Scotland. In certain circumstances, a restricted category of next of kin will also be eligible to seek redress. In doing so, the Bill sets up a new independent public body, Redress Scotland, to determine and make such decisions about applications and payments.

The redress scheme will be funded in part by inviting organisations involved with residential care of children in the past to pay financial contributions to the scheme. Whilst such contributions will be voluntary, there are incentives in the Bill to encourage scheme contributors.

Survivors can apply for a fixed rate payment of £10,000 or an individually assessed payment which are set to either £20,000, £40,000, £80,000 or £100,000. An individually assessed payment will involve a more detailed examination of their abuse. In some circumstances, the next of kin of deceased survivors will be able to apply for a redress payment of £10,000.

What does this mean for survivors?

The main purpose of the scheme is to acknowledge and provide recognition of the harm suffered as a result of historical child abuse whilst residing in care in Scotland. Last week the Deputy First Minister John Swinney proudly stated that the Bill establishes “a survivor focussed route to redress.”  It has also been publicly welcomed by the Scottish Human Rights Commission.

One issue that has been hotly debated in the lead up to the legislation being passed is the inclusion of a waiver. That remains in the wording approved by Parliament and means that an applicant to whom an offer of a redress payment is made and who wishes to accept the offer must sign and return a waiver agreeing to abandon any civil proceedings and to waive any right to bring relevant civil proceedings. Only organisations who contribute to the scheme will be entitled to a waiver.

In certain quarters the waiver has been described in fairly damning terms as a “cash for silence” ploy. However, the Scottish Government maintains that is not the case, explaining that “The Redress Scheme does not silence survivors – anyone who signs a waiver and receives a payment from the redress scheme can continue to talk publicly or privately about the abuse they experienced.”

Although the scheme provides an alternative route to redress, it does not remove an applicant’s right to litigation until an offer of redress is actually made and accepted. The Deputy First Minister has also confirmed that independent legal advice, subject to appropriate limits, will be funded by the Scottish Government to ensure survivors can make fully informed decisions that are right for them.

Therefore, the Government maintains that such professional checks and balances mitigate against any perceived pressure on survivors to take “cash” and feel silenced. It is anticipated that there will be many applicants who test the waters on how the scheme will work and their application determined, however where they are dissatisfied with the level of payment, litigation remains an option.

Comment/insurer perspective

The scope of the scheme means that it will be funded by “scheme contributors” such as public authorities, voluntary organisations, and other private organisations.  Therefore, this is not a direct concern for insurers who will neither require to contribute or indemnify policyholders.  However, there may be some collateral benefits to the scheme, at least at a local level.

It had been anticipated there would be a reduction in litigation in respect of abuse cases. That seems unlikely to be significant given the final shape of the Bill. The public backlash that has greeted the inclusion of the waiver in certain quarters, including leading claimant firms, strongly indicates that survivors may be advised against the option of redress. It is clear that court proceedings will remain the key option which many survivors may see, or be advised, is appropriate for them.  

For more information please contact Calum Fife or Khadija Sarwar.