37.This section sets out who may apply for a payment under Part 4 of this Act (a “redress payment”). Subject to section 23 (power to create exceptions to eligibility), it provides that, to apply, the person to whom the application relates must have been abused whilst a child and resident in a relevant care setting in Scotland, and that the abuse must have occurred before 1 December 2004. A “child” in this context means a person under the age of 18. “Relevant care setting” is defined in section 20.
38.Subsection (4) clarifies that the definition of a “child” as meaning a person under the age of 18 does not apply to references to “a child of a deceased person” in relation to applications for next of kin payments.
39.Under section 106 of the Act, the Scottish Ministers may issue and publish guidance, including in relation to the eligibility criteria under this Part of the Act. This would include, for example, interpretative guidance in relation to the definition of “abuse” or in relation to “relevant care setting”.
40.It should be noted that there is nothing in the Act to prevent an application being made by a person who has already sought or received redress for their abuse other than through the redress scheme established by the Act (whether successful or not, and whether concluded or not). For example, a person who has previously raised a civil court action in respect of abuse which is eligible for redress under the Act may still apply for a redress payment regardless of the outcome of that civil action. The relevance (to the extent that there is any) of a previous attempt to seek redress through other means is only as follows—
In a case where the person was successful in obtaining financial redress through other means, section 42 of the Act will apply. This provides that where a person has received or become entitled to a “relevant payment” (as defined in section 42(2)) (for example, where the person has been awarded damages or compensation by the court in a successful civil action, or accepted a settlement from an organisation), that relevant payment, adjusted for inflation where appropriate, will be deducted from any redress payment offered under the Act.
In a case where the person’s attempt to obtain financial redress through other means is ongoing, they may nonetheless apply to the scheme. If they are offered a redress payment which they wish to accept, they will have to abandon any “relevant civil proceedings” (as defined in section 46(6)) at that point, in accordance with section 50(2).
In a case where the person was not successful in obtaining financial redress through other means, this does not mean that an application for redress will necessarily be similarly unsuccessful: the process of obtaining information and reaching a determination under the redress scheme is different.
41.This section defines what constitutes “abuse” for the purpose of the redress scheme provided for under this Act. Subsection (1) provides that “abuse” includes sexual, physical and emotional abuse and abuse which takes the form of neglect. As read with section 18, this would include abuse by peers within a relevant care setting. This definition mirrors the definition of “abuse” as used in section 17A of the Prescription and Limitation (Scotland) Act 1973 (as inserted by section 1 of the Limitation (Childhood Abuse) (Scotland) Act 2017).
42.Subsection (2) provides that corporal punishment will constitute “physical abuse” for the purpose of potential eligibility for redress where, at the time it was administered, it was not permitted under or by virtue of any enactment or rule of law. That would be because of the fact that it was excessive, arbitrary or cruel, because it was administered for an improper motive, or because it was not permitted for another reason.
43.Section 20 defines “relevant care setting” for the purposes of the redress scheme under this Act. Relevant care settings are either residential institutions in which the day-to-day care of children was provided by or on behalf of a person other than a parent or guardian of the children resident there, or places other than residential institutions where children lived while being boarded-out or fostered. But the latter does not include where a child was boarded-out or fostered with a relative or guardian of the child, or under arrangements between a parent or guardian and another person unless that person was a public authority or a voluntary organisation exercising functions in relation to the safeguarding or promotion of the welfare of the child or furthering of the child’s interests.
44.“Residential institution” is defined in subsection (3) to mean a children’s home, a penal institution, a residential care facility, school-related accommodation, and secure accommodation. These terms are further defined in section 21.
45.Subsection (4) enables the Scottish Ministers by regulations (subject to the affirmative procedure) to modify the meaning of “residential institution” by adding to or varying the above categories of institution or the definitions which relate to them. However, subsection (5) provides that the Scottish Ministers are permitted to make such regulations only where they are satisfied, so far as reasonably practicable, that no-one who would have been eligible for the scheme will cease to be so eligible as a result of the regulations. Therefore, any exercise of this power should effectively result in a widening of eligibility under the scheme, or in there being no change to eligibility (for example, where the change was merely clarifying something).
46.Section 21 defines each of the categories of residential institution as well as “voluntary organisation” for the purpose of section 20. It also provides that a residential institution may form part of another establishment.
47.Subsection (1) defines “resident” in relation to a relevant care setting. This could include, for example, circumstances where a child was absent from the care setting while still under the care of the relevant care provider (or someone authorised by them), such as during a day excursion.
48.Subsection (2) provides that it does not matter whether the child was within or outside Scotland during any period of absence from a relevant care setting which is covered by subsection (1). The child will still be deemed to have been resident in that setting whilst under the care of the provider of that setting or a person authorised by that provider (for example, this may cover periods outside Scotland on excursions or holidays).
49.This section provides a power for the Scottish Ministers by regulations (subject to the affirmative procedure) to make provision about specific circumstances in which an applicant would not be eligible to apply to the redress scheme. This could, for example, be in relation to certain types of abuse (such as certain types of peer abuse – e.g. a one-off fight between peers which was not known about by the residential institution) or in relation to the circumstances in which a person abused came to be resident in a relevant care setting (such as short-term private respite care in a children’s home).
50.This section sets out the circumstances in which an application for a next of kin payment may be made: this will normally be where the criteria for a next of kin application are met, but an application can also be made where permission is granted due to exceptional circumstances (see section 25).
51.The criteria for a next of kin application require that the applicant must be the next of kin of a person who would have been eligible to apply for a redress payment, and who died on or after 1 December 2004 (section 24(2)(a) and (b)). Whether someone is the next of kin of a deceased person is determined in accordance with section 28.
52.In addition, the deceased person must either not have applied for a fixed rate or individually assessed redress payment by the date of their death, or have applied but died while the application was ongoing with certain other conditions being met. It should be noted for this purpose that, under section 33(5), if the deceased person made an application but then withdrew it, that is to be treated as though no application had been made.
53.Where such an application was made, the conditions which must be met are set out in subsection (3)(b); broadly speaking, these amount to the person dying while the application was ongoing and without any redress payment being paid out. Accordingly, where the application was for an individually assessed payment, the deceased person must have died without a fixed rate payment having already been paid – whether under a previous application for a fixed rate payment or, in the case of a second application for an individually assessed payment due to new evidence, by virtue of having received the fixed rate payment as an element of the individually assessed payment paid under that first application. In addition, where a nominated beneficiary was named in relation to the application, this would preclude a next of kin application from being made unless the nominated beneficiary either did not take over the application or, if they did, they themselves then died while the application was still ongoing and without having accepted a redress payment. As such, if the nominated beneficiary took over the application and either no offer was made under it or they opted to reject the offer, that would prevent a next of kin application from being made.
54.Section 24(4) clarifies that an application is considered to be ongoing from the time it is made until whichever is applicable of the following occurs: the application is withdrawn; a determination is made that the applicant is not eligible for a redress payment and either the period for seeking a review expires without one being sought or the review is unsuccessful or is withdrawn; or an offer made under the application is either accepted or allowed to expire.
55.Where an application has been brought to an end but a person has made efforts to restart it again, it will once again be considered to be an ongoing application. Accordingly, an application is also ongoing from the time that a request to revive it is made or it is revived under section 49(4) or 58(4) without a request being made, or where a late request for a review is made in relation to it. Such an application is ongoing until the point that the attempt to restart it is made until either that attempt fails or, if the attempt is successful, the application is brought to an end in a way described in paragraph 54.
56.This section provides that a person may apply for permission to apply for a next of kin payment due to exceptional circumstances.
57.This type of permission can only be sought where the person making the application is the specified next of kin of the deceased person (see section 28). In addition, it must be the case that the deceased person had applied for and been offered a redress payment (either a fixed rate or individually assessed payment) but the offer had not been accepted during the time it was valid and the person then died. Further, where the application was for an individually assessed payment, the deceased person must have died without a fixed rate payment having already been paid (whether under a previous application for one or, in the case of a second application for an individually assessed payment due to new evidence, by virtue of having received the fixed rate payment as an element of the individually assessed payment paid under that first application).
58.In these circumstances, section 25 provides that an application can be made to the Scottish Ministers, in such form as the Scottish Ministers may require, setting out the exceptional circumstances as a result of which permission is being sought and including any relevant information. The Scottish Ministers must then pass on the application and any accompanying information to Redress Scotland for a determination.
59.Any application submitted under subsection (1) must be determined by a panel of at least two members of Redress Scotland. The procedure for this will be determined by Redress Scotland. The panel may grant the applicant permission to apply for a next of kin payment only where it considers there are exceptional circumstances which merit it. For example, this might be because the deceased person allowed the offer to expire because they were in hospital and then died shortly thereafter. Once the panel has determined the application, the Scottish Ministers must notify the applicant of the outcome and the panel’s reasons for the decision.
60.In accordance with the definition of “notify” in section 105, this notification – as with other determination processes in the Act – must be given in writing. However, in accordance with schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 (in these Notes, “ILRA”), that requirement could be satisfied using electronic communication such as email.
61.This section provides that an applicant who has received notice of a determination under section 25 that permission to apply for a next of kin payment due to exceptional circumstances is not being granted may request a review of that determination.
62.In accordance with subsection (2), such a request must be made to the Scottish Ministers before the end of the period of eight weeks beginning with the date on which notice of the determination was received and be made in such form as the Scottish Ministers may require (and, under subsection (5), the Scottish Ministers must publicise any requirements for the form of applications). Section 26(5) and (6) of ILRA provides for when an applicant is to be assumed to have received notice of the determination. The request must also specify why a review is being sought, and should contain or be accompanied by any other information the applicant considers relevant.
63.Subsection (3) states that the Scottish Ministers must provide the request and any accompanying information to Redress Scotland as soon as practicable. Subsection (4) permits Redress Scotland to conduct a review despite it not being requested within the timescale specified in subsection (2)(b), if it is satisfied that the applicant has a good reason for not requesting it sooner.
64.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 27.
65.Subsection (1) sets out that a panel conducting a review under section 26 must consider whether the panel that made the original determination ought to have reached a different determination, and, where additional evidence is provided to or obtained by the panel conducting the review, whether as a result the application should now be determined differently. In either case, the review panel may uphold or reverse the original determination.
66.Subsection (2) requires Redress Scotland to inform the Scottish Ministers, who must then notify the applicant of the review panel’s determination as soon as reasonably practicable, and provide the applicant with a summary of the panel’s reasons for reaching that determination. Paragraph 60 of these Notes applies equally to the form of notice of the outcome of a review under this section.
67.In accordance with subsection (3), the determination of a review panel under this section is final. This means that there is no further right of review or appeal in respect of this decision.
68.This section sets out who is to be considered the ‘specified next of kin’ in relation to a deceased person for the purpose of a next of kin application.
69.Subsection (1) provides that specified next of kin is the person who immediately before the death of the deceased person was the spouse, civil partner or cohabitant of the deceased person. “Cohabitant of the deceased person” is defined in subsection (4) to mean a person who was neither married to nor in a civil partnership with the deceased person but who was living with the deceased person as if they were married to each other and had been doing so for a period of at least six months.
70.Subsection (2) deals with circumstances where the deceased person has both a spouse or civil partner, and a different person who they lived with immediately before their death (for example, because they had separated from their spouse and were in a new relationship). Where that is the case, the specified next of kin will be the cohabitant of the deceased person (which, in accordance with subsection (4), means a person who had lived with the survivor as if they were married for at least six months immediately before the survivor’s death). If they had not lived together for those six months, subsection (2) does not apply because there is no “cohabitant” in terms of the definition used in the Act; as such, under subsection (1) the specified next of kin will be the spouse or civil partner of the deceased person. In any situation where subsection (2) applies, the decision in favour of the cohabitant is not revisited on the subsequent death of the cohabitant (meaning that the spouse or civil partner cannot later take over the right to apply).
71.If the deceased person had neither a spouse, civil partner nor cohabitant, or where any such partner has themselves since died without having accepted an offer under the redress scheme for a next of kin payment, the specified next of kin will be the child or children of the deceased person (subsection (3), as read with subsection (1)(b)). The term “child” includes a stepchild, or a person treated as a child of the deceased person by them (subsection (4)), and the right to apply for a next of kin payment will pass to them.
72.Therefore, for example, if a person who would have been eligible to apply for a redress payment under the scheme, but had not done so, dies and they were married but separated from their spouse and had been living with another person for at least six months immediately before they died, it is the person they had been living with who could apply for a next of kin payment under the redress scheme. If that person decides not to do so and then dies, the right to make the application passes to the child or children of the abuse survivor who died.
73.In assessing for the purposes of these provisions whether a person was a “cohabitant” of the deceased person, Redress Scotland would be able to take into account relevant case law in relation to other legislation such as, for example, under the Family Law (Scotland) Act 2006. For example, there is case law which provides that a person does not cease being someone’s cohabitant simply because they were hospitalised for a period immediately before death.
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