Part 5: Other support for survivors of abuse.
Provision of support
Section 89: Provision of support to persons in connection with an application
257.This section provides that the Scottish Ministers may arrange to provide support to applicants to the redress scheme and to those who are in the process of preparing or considering an application to the redress scheme. Support in this section means emotional, psychological or practical support which the Scottish Ministers consider necessary for a person in connection with deciding to apply or making an application.
Section 90: Provision of support to certain persons eligible for a payment etc.
258.This section provides that the Scottish Ministers may arrange to provide support to persons who meet the conditions set out in subsection (2), subsection (3), or subsection (4).
259.A person meets the conditions set out in subsection (2) if their application is not for a next of kin payment, they have been assessed as being eligible for a redress payment, and they have either accepted an offer of payment and signed a waiver, or are not receiving a payment only because of the deduction of previous relevant payments.
260.A person meets the conditions set out in subsection (3) if their application is not for a next of kin payment, they have been precluded from being offered a payment under section 60 (which relates to serious unspent criminal convictions), and Redress Scotland determines that they would have been eligible for a redress payment had it not been for the conviction.
261.A person meets the conditions set out in subsection (4) if they have previously received a payment under the advance payment scheme.
262.Subsection (5) defines support under this section as emotional or psychological support in connection with the abuse to which the application relates as the Scottish Ministers consider necessary given the person’s needs, and for such period as they consider appropriate.
Payment of costs and expenses
Section 91: Reimbursement of costs incurred in connection with applications
263.This section sets out that the Scottish Ministers must by regulations, subject to the negative procedure, make provision for the reimbursement by them, on request, of the costs and expenses incurred by a person applying to the scheme provided that those costs were reasonably incurred. The regulations must provide for reimbursement of reasonably incurred costs regardless of whether or not the application was successful, and regardless of whether or not it was later withdrawn. Costs in this context would not include legal fees, as specific provision is made in relation to legal fees at sections 92 to 96.
264.The regulations must also make provision to permit the reimbursement by the Scottish Ministers, on request, of the costs and expenses reasonably incurred in connection with a proposed application by a person who did not subsequently apply where there are exceptional or unexpected circumstances which justify reimbursement. Such circumstances may include, for example, where the person died before being able to submit their application. It is for the Scottish Ministers to assess in the first instance whether such circumstances exist.
265.Subsection (2) ensures that the regulations will require the Scottish Ministers to notify the person who made the request of the outcome of their request and provide them with a summary of reasons.
266.Subsection (3) sets out examples of matters which may be provided for in regulations under subsection (1). These include the types of and limits on costs and expenses which may be reimbursed, any process by which pre-approval of anticipated costs and expenses can be obtained, when and how any request must be made, the factors to be considered by the Scottish Ministers in assessing the reasonableness of any costs and expenses, and reviews by Redress Scotland of the Scottish Ministers’ assessment of the amount to be reimbursed and whether exceptional or unexpected circumstances exist which justify reimbursement in the case of non-applicants.
Payment of fees for legal work
Section 92: Duty on the Scottish Ministers to pay fee for legal work in making an application
267.This section places a duty on the Scottish Ministers to pay, to a solicitor, a prescribed sum (i.e. a fixed fee) for legal work reasonably carried out in the making of an application for redress. Payment will be made whether or not the application was successful and whether or not the application was subsequently withdrawn (although in both these circumstances, separate payment amounts may be specified by virtue of section 94(4) as read with section 107(1)(a)).
268.Subsection (2) provides that where it is believed by the Scottish Ministers that work might not have been reasonably carried out, the matter will be referred for Redress Scotland to make a decision on payment. Otherwise, the request will be processed and the fixed fee paid by the Scottish Ministers without any referral to Redress Scotland being required.
269.What constitutes legal work carried out in making an application for redress (or in connection with a proposed application under section 93) is informed by both subsection (4) and by any provision that is made under section 94(3)(b). As such, it includes advice and assistance relating to: eligibility; the type of redress payment to apply for; the application process; whether to accept an offer of redress and sign a waiver; advice on whether to request a review; and the review process. However, the question of whether work is undertaken reasonably will relate not just to the type of work undertaken but also to the circumstances in which it was undertaken. For example, work involved in making an application in respect of a patently ineligible person (such as one whose abuse was not historical and which occurred in 2019) would likely not be covered.
270.Under subsections (3) and (4), legal advice given in relation to pursuing litigation as an alternative to redress will not be funded unless and to the extent that it forms part of legal work reasonably undertaken in connection with the making of an application to the scheme. For these purposes, legal work carried out in connection with making an application for redress includes advice and assistance relating to: eligibility; the type of redress payment to apply for; the application process; whether to accept an offer of redress and sign a waiver; advice on whether to request a review; and the review process.
Section 93: Duty on the Scottish Ministers to pay certain fees for legal work in exceptional cases
271.Subsections (1) and (2) place a duty on the Scottish Ministers to pay, to a solicitor, a prescribed sum (fixed fee) for legal work reasonably carried out in connection with a proposed application by a person who sought legal advice on eligibility but did not subsequently apply to the scheme where, in Redress Scotland’s assessment, there are exceptional or unexpected circumstances which justify the payment of the fixed fee. For example, this may cover situations in which the prospective applicant died before the application could be submitted.
272.Subsection (3) places a duty on the Scottish Ministers to pay, to a solicitor, an additional sum as specified by Redress Scotland in respect of legal work reasonably carried out in relation to an application or proposed application where there are exceptional or unexpected circumstances which justify a payment over and above the fixed fee.
273.It is for Redress Scotland to decide whether anything is payable and, in the case of a request for an additional payment, the amount of that.
Section 94: Sections 92 and 93: further provision
274.This section makes further provision about the duty placed on Scottish Ministers to pay fees for legal work carried out in making an application and to pay certain fees for legal work in exceptional cases. It relates to the rules surrounding a ‘fee payment request’ (as defined in subsection (1)) and the amount of fixed fees. Subsection (2) provides that only a solicitor may make a fee payment request.
275.Subsection (3) allows the Scottish Ministers to make regulations about fee payment requests, including providing for time limits for making a fee payment request, any steps that must be taken prior to making such a request (which could, for example, require prior authorisation to be sought before incurring additional costs which might lead to a fee payment request under section 93(3)), the form and content of the request, and the information and evidence to be provided in or with the request.
276.The regulations can also make provision about legal work which is or is not to be regarded as reasonably undertaken (see also paragraph 269 of these Notes). This could, for example, involve specifying that certain types of work will be regarded as being undertaken in making an application or in connection with a proposed application, while still leaving the assessment of reasonableness to Redress Scotland. The power could also be used to specify types of work, or circumstances in which work is undertaken, which will lead to a conclusion that the work is not reasonably undertaken. There is a power to modify enactments when making such provision, as a consequential modification to section 92(4) may be appropriate.
277.Regulations under subsection (3) are subject to the negative procedure, except where they modify an Act and are therefore subject to the affirmative procedure (see section 107(4)).
278.Subsection (4) allows for regulations to prescribe the level of the fixed fees or scales of fees for legal fees and the conditions under which these will be payable. By virtue of section 107(1)(a), different provision may also be made for different purposes, so different fees could be set for different things. For example, this could be based on (among other things) the type of redress payment sought, on whether the application involves a review, on whether there has been a previous application to the redress scheme in respect of the person, or the amount that is offered to the applicant. Regulations under this subsection are subject to the negative procedure.
Section 95: Assessment, notification and review of certain fee payment requests
279.This section sets out the process for the assessment, notification and review of certain fee payment requests.
280.Subsections (1) and (2) provide that the Scottish Ministers must refer to Redress Scotland, for assessment, any fee payment requests for—
legal work that may not have been reasonably carried out,
any legal work reasonably carried out in connection with a proposed application by a person who sought legal advice on eligibility but did not subsequently apply, or
any legal work reasonably carried out in relation to an application or proposed application where there may be exceptional or unexpected circumstances which justify a payment over and above the fixed fee.
281.Subsection (3) requires the Scottish Ministers to, as soon as reasonably practicable after they have been informed by Redress Scotland of the outcome of Redress Scotland’s assessment, notify the solicitor of the outcome and provide the solicitor with a summary of reasons for it (which will have been provided to the Scottish Ministers by Redress Scotland).
282.Subsection (4) sets out the rules surrounding the rights of a solicitor to request a review of the assessment made by Redress Scotland. Namely, a solicitor may ask for a review where it has been determined that legal work was not reasonably carried out and that no sum is to be paid, where legal work was carried out in cases where no application was subsequently made and Redress Scotland decide that no sum is to be paid, and where in cases of exceptional circumstances an amount is sought above the fixed fee and it is decided that either no additional sum will be paid, or that the additional sum to be paid is lower than requested.
283.Subsection (5) allows the Scottish Ministers to make regulations making further provision about reviews of fee payment requests, including about time limits for requesting a review, the form and content of the request for a review, the outcome of the review and powers of the review panel, the notification of the outcome of the review, the suspension of payment for the work until the review is determined, and the payment for the work where the outcome of the review is that the sum is to be paid. Regulations under this subsection are subject to the negative procedure.
Section 96: Restriction on additional legal fees
284.This section provides that solicitors who obtain payments for legal work under the scheme in relation to a redress application may not also charge their clients separately for work carried out in relation to the same application. The effect of this is that solicitors will not be able to top up the fee they receive from the redress scheme and recoup fees over and above that which is paid by scheme. Applicants who access legal advice funded by the redress scheme will be able to keep the entirety of their redress payment, without further legal fees being deducted or requested separately by their solicitor in relation to work that is already covered by the redress scheme’s legal fees provisions.
285.Subsection (3) provides that although applicants and potential applicants may get some advice on civil litigation in the context of whether they should sign a waiver or instead pursue litigation, the solicitor is not prevented from having separate funding arrangements for legal fees with their client in relation to that advice on civil litigation, to the extent that the advice and assistance instructed went beyond that required or appropriate as part of the legal work undertaken in making, or proposing to make, an application to the redress scheme.
Liability for certain payments made in error
Section 97: Liability for payments, other than redress payments, made in error
286.This section allows for the recovery of payments made in connection with redress applications, other than the redress payments themselves (which are covered by section 74), where these payments were made due to an error. Under subsection (2), the payments recoverable are payments made in respect of expert reports, payments made in relation to the provision of support, payments made by way of reimbursement of costs and expenses by virtue of section 91, and payments of fees for legal work in making a redress application or in connection with a proposed application.
287.Subsection (3) provides that a person who has been paid for any of this work or reimbursed for these costs, either directly or indirectly, is liable to pay that money back to Ministers to the extent that there has been an error in relation to the making of the payment. However, subsection (6) provides that payments made due to error that fall under any of these categories cannot be recovered from the applicant to whose redress application they relate (who will not have been the real beneficiary of the payment).
288.Subsection (4) sets out that the liability is the difference in value between the payments made or received and those that would have been made or received had the relevant error not occurred. As such, if for example £530 is paid in error instead of £350, an obligation to repay only arises in respect of the overpaid amount (i.e. £180). Subsection (5) 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.
289.Subsection (7) provides that a payment made because of a relevant error means one in which there was an error in the making of the payment (e.g. the incorrect amount was paid) and one in which there was an error in the decision to make the payment, including where the decision was based on incorrect or misleading information (e.g. a fraudulent invoice where services were not actually provided).
290.However, subsection (8) makes it clear that the error must relate to the payment made and not simply to any redress payment with which it is connected. For example, if a redress payment was initially made on the basis of misleading information, these provisions would not allow for the recovery of the legal fees in connection with that application where the solicitor was unaware of their client’s behaviour.
Section 98: Power to make further provision about payments, other than redress payments, made in error
291.This section allows the Scottish Ministers to make regulations, subject to the affirmative procedure, to set out further provision about or relating to their consideration as to whether decisions to make payments (other than redress payments) were materially affected by error and therefore a right of recovery arises in respect of them. Among other things, such regulations may cover the procedure they will adopt, the review of their decisions, and provision about legal fees for work in relation to any such procedures or reviews.
