Eligibility to apply for next of kin payments
Section 24: Eligibility to apply for a next of kin payment
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.
Section 25: Eligibility to apply for a next of kin payment: exceptional circumstances
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.
Section 26: Review of determination made under section 25
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.
Section 27: Outcome of a section 26 review
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.
Section 28: Meaning of “specified next of kin”
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.
