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Redress for abuse – some clarity, some confusion

  • Legal Development 11 November 2021 11 November 2021
  • UK & Europe

  • Insurance & Reinsurance

The redress scheme for survivors of child abuse in care in Scotland is due to be operational by the end of the year.

Redress for abuse – some clarity, some confusion

While the scheme has the potential to bring resolution and certainty for many, details on elements of its operation remain outstanding and the Government is yet to confirm where the funding will come from. This is increasingly concerning given that the scheme is due to begin operating in December.  

The deputy first minister, John Swinney, gave evidence to the Education, Children and Young People Committee on 23rd October and provided an update about the progress of the scheme. While he did clarify several aspects, his evidence raised fresh questions for applicants and contributors alike.

The waiver

The redress scheme was established with a waiver as a central element. Applicants will have to agree to abandon any civil proceedings and waive the right to bring future proceedings.

Mr Swinney confirmed that the waiver will be a standard form completed by all survivors. There will be no negotiation on the individual terms, which means certainty as to the meaning and effect of the waiver for both claimants and contributors. Applicants will be encouraged to seek legal advice before signing the waiver.   

Mr Swinney confirmed that if a claimant signs the waiver, and further evidence subsequently comes to light which strengthens their position, they would remain unable to raise a civil claim. They may however be able to revisit the original redress award. However, the details of the criteria and mechanism for this review remain unclear.

He also confirmed that, if an individual signs a waiver in respect of a provider which is subsequently removed from the redress scheme, the waiver will remain valid and no claim can be raised against that provider. Any compensation which is not paid by the provider will be met by the Scottish Government. That is an important and significant clarification for contributing organisations.

The Government will monitor and report on the operation of the waiver after the first 18 months. However, Mr Swinney left some uncertainty by declining to answer whether the review process will allow retrospective amendments to waivers which have already been signed.

Fair and meaningful contribution

Providers will be expected to make a ‘fair and meaningful contribution’ to the scheme. The criteria for determining what amounts to a fair and meaningful contribution are still under discussion and not scheduled to be published until the scheme is launched.

The Government is currently going through negotiations with contributors about this. Mr Swinney indicated that it will be ‘up to providers’ to discuss how much they can contribute with their insurers. It is promising to see some flexibility shown to the providers, many of whom are charities. However, the lack of guidance as to expected contributions creates a risk of inequity amongst the different providers, particularly where a claimant seeks compensation from multiple institutions. 

Standard of proof

Mr Swinney confirmed that the standard of proof which will be required in the redress scheme will be lower than in a civil case. Interestingly, he indicated that reference will be had to the 'authoritative findings' of Lady Smith in her case studies arising from the Scottish Child Abuse Inquiry, which is ongoing. These findings will, he suggested, be used to provide 'contextual reinforcement' to the claims.

The implication is that while the findings will not ‘prove’ the claims of the individual, they may provide supportive evidence particularly if the allegations are factually similar to those of applicants to the Inquiry. The passage of time means that many applicants will have little in the way of direct contemporaneous evidence and so the ability to rely on SCAI findings could significantly increase the number of applications to the scheme.

Conclusions

The redress scheme should bring significant benefits for the survivors of abuse, and clarity for care providers. The lack of clarity on some key elements of the scheme will be a source of concern to providers wishing to understand how their obligations will be determined. However, confirmation of the finality of the waiver will bring some reassurance. It is expected that further guidance will be published as the scheme is brought into operation in December.

End

Additional authors:

Rachael Miller

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