Chapter 5: Redress payments or determinations made in error
Section 74: Liability for redress payments made in error
214.This section provides that a person is liable to pay the Scottish Ministers the value of any redress payment that has been paid to that person due to a “relevant error”, although only to the extent that it is attributable to the relevant error.
215.Subsection (2) sets out that the liability is the difference in value between the redress payments that were paid to that person, and those that would have been paid had the relevant error not occurred. Subsection (3) provides that any sum in respect of which the Scottish Ministers seek repayment may be paid in instalments if agreed with the person, or otherwise as a single payment.
216.“Relevant error” is defined in subsection (4) to mean either an error when making a redress payment, or an error which Redress Scotland determines under section 75 or 76 to have led to a determination being made incorrectly or on the basis of incorrect or misleading information (where this materially affected the determination).
217.Accordingly, any redress payment which was paid in error to the wrong account holder or where the wrong amount was entered in a bank transfer by mistake would be repayable, as that would constitute a relevant error under subsection (4)(a). Redress Scotland would not need to be involved in the recovery of such a payment. However, under subsection (4)(b), payments which are paid in accordance with a determination of Redress Scotland may only be recovered where Redress Scotland carries out a further determination process and is satisfied that an error materially affected the determination. The error may be one of, for example, having incorrectly calculated previous payments to be deducted despite having accurate information to work from, or it may be one of, for example, having been supplied (accidentally or otherwise) with evidence which misstated the details of the abuse.
Section 75: Reconsideration of determination where possible material error
218.This section provides that, where Redress Scotland or the Scottish Ministers have cause to believe that an error may have materially affected a determination under Part 4 of the Act, they must make a referral to a panel of at least three members of Redress Scotland appointed to consider the matter. A reconsideration can occur either once a payment has already been made or in advance of a payment being made (if the error is known about in time).
219.Where Redress Scotland refers a determination for reconsideration, subsection (3) provides that Redress Scotland must inform the Scottish Ministers as soon as reasonably practicable. Where either Redress Scotland or the Scottish Ministers refer a determination for reconsideration, subsection (4) provides that the Scottish Ministers must then, again as soon as reasonably practicable, notify the relevant person that the determination is to be reconsidered and of the reasons for that, as well as providing information about the implications of the reconsideration. A period of at least eight weeks must be provided for the person to make written representations in relation to the reconsideration. Paragraph 60 of these Notes applies equally to the giving of notice to a person under subsection (4) that a determination is to be reconsidered. It is also relevant to the meaning of “writing” in relation to the making of representations under this section.
220.Subsection (5) provides that, once the period allowed for written representations has ended, the panel appointed to consider the matter must consider whether the determination was materially affected by an error. If the panel considers that the determination was so affected, it must redetermine it as it would have been determined had the error not occurred. In accordance with subsection (6), for the purposes of other proceedings (civil or criminal), nothing done under a reconsideration can be taken as a finding that any person mentioned in the original application acted or failed to act in a way set out in that application. This rule also applies to original determinations and reviews of them (see sections 36 and 57(4)).
221.Subsection (7) provides for notification requirements which apply once the reconsideration has taken place, and requires Redress Scotland to inform the Scottish Ministers, who must then notify the person affected of the outcome of the panel’s reconsideration, including providing a summary of the reasons for the panel’s decision. Paragraph 60 of these Notes applies equally to the form of notice of a determination under this section.
222.Subsection (8) provides that, where a redetermination relates to a redress payment that has not yet been made, the reconsidered determination takes the place of the original determination, but any review is to be under section 76 rather than section 54, so that there are not two different review rights applying simultaneously in respect of the same matter. Subsection (9) sets out the meanings of “error” and “relevant person” for the purposes of this section. The person who is notified of a reconsideration will usually be the applicant (or their nominated beneficiary) but there may be times where that person died after accepting a payment but before receiving it, and the payment was therefore redirected elsewhere.
Section 76: Review of reconsidered determination
223.This section provides for a review of a determination under section 75 (reconsideration of determination where possible material error).
224.In accordance with subsection (2), any request for a review must be made to the Scottish Ministers within eight weeks of the date on which notice of the determination was received by the person requesting the review (that is, the person who was notified of the determination under section 75). The Scottish Ministers must then provide the request and accompanying information to Redress Scotland as soon as reasonably practicable. Where the Scottish Ministers set requirements in relation to the form for a request for a review, the request must be in that form (any such requirements being publicised under subsection (5)). The request must also specify why a review is being sought, and contain or be accompanied by any other information the applicant considers relevant.
225.Subsection (4) permits a review to be conducted despite the request for it not being made within the timescale specified in subsection (2), if Redress Scotland is satisfied that the applicant has a good reason for not requesting it sooner.
226.Subsection (6) applies sections 55 (review panels), 56 (procedure for reviews) and 59(1) to (5) (withdrawal of review request) to reviews under this section. However, any withdrawal of a request for a review can only happen before the review is determined under section 77.
Section 77: Outcome of a section 76 review
227.Subsection (1) sets out what a review panel conducting a review under section 76 of a reconsidered determination must consider: namely, whether the reconsideration panel ought to have reached a different determination and, where additional evidence is provided to or obtained by the panel conducting the review, whether the application should now be determined differently on the basis of that additional evidence.
228.Subsection (2) provides that the review panel may not reverse or vary a determination under section 75 that a person remains eligible for a redress payment, nor determine that a person is to be entitled to or offered a lower amount of individually assessed payment than that person was entitled to or offered under section 75. The review panel also may not determine that more is to be deducted by way of relevant payment in accordance with section 42 from the person’s redress payment than was determined under section 75. Subsection (3) goes on to provide that the review panel may otherwise uphold or reverse any part of the determination, irrespective of whether the request for a review relates to that part of it or not.
229.Subsection (4) provides that subsections (4) and (7) of section 36 apply to a determination as upheld, reversed or varied as they apply to a determination made under section 36 (determination of applications). This is subject to the modification that references to the panel appointed under section 35 (decision-making panels) to determine the application are to be read as references to the review panel.
230.Subsection (5) requires Redress Scotland to inform the Scottish Ministers of the review panel’s determination, and they must then notify the person who requested the review of the outcome, and provide that person with a summary of reasons provided by Redress Scotland for reaching that determination.
231.In accordance with subsection (6), the determination of a review panel under this section is final. This means that there is no further right of appeal in respect of this decision. An exception to this is provided in subsection (7), whereby a further referral for review can be made if that referral relates to a different error.
Section 78: Power to make further provision about reconsiderations
232.This section provides that regulations (subject to the affirmative procedure) may be made in respect of reconsideration of determinations under section 75 and reviews of reconsidered determinations under section 76.
233.Subsection (2) sets out a non-exhaustive list of some examples of provision that may be made by these regulations. For example, it might be appropriate for provision to be made setting aside a waiver in the event that the redress payment to which it relates is reduced to nil by a reconsideration; or it may be appropriate for provision to be made for the recovery of fees for legal work or other costs and expenses relating to a reconsideration which are paid due to an error. It might also be appropriate for the rule in section 75(5)(b) to be modified slightly. While in most cases a reconsideration panel ought to be considering what determination would have been reached had the error not been made, that may not always be appropriate. If the error in the original determination was a result of fraud and the applicant has since been convicted of a serious criminal conviction to which section 60 applies, it might be appropriate for the panel to be allowed to take account of that conviction. Although the examples in this subsection relate to the initial determination of the reconsideration panel, the power could also be exercised in relation to any reviews of a reconsideration panel’s determination, as subsection (1) expressly covers both aspects.
