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.
