Applications
Section 29: Application for a redress payment
74.Subsection (1) sets out the three types of redress payment for which an application can be made to the Scottish Ministers during the time that the redress scheme is open for applications. These payments are: a fixed rate payment, an individually assessed payment and a next of kin payment. The Scottish Ministers must set out the requirements in relation to the form in which the application must be made as well as the evidential requirements. These requirements must be publicised by the Scottish Ministers (subsection (6)).
75.Subsection (3) provides that, as a general rule (subject to section 30), only one application may be made for a redress payment in respect of a person who was abused. However, applications can relate to one or more relevant care settings (subsection (2)). This means that a person applying for a redress payment can normally only make one application, but that the application can relate to all of their time spent in care (where eligible for the redress scheme). As the rule about the number of applications is tied to the person who was abused, this would allow someone who had been abused in care and whose now deceased spouse had also been abused in care to make both an application in respect of their own abuse and a next of kin application in respect of their deceased spouse (subject to the rest of the eligibility criteria).
76.Subsection (4) places a duty on the Scottish Ministers to provide the summary of options (prepared under section 9) to an applicant at the point at which an application to the redress scheme is received.
77.The Scottish Ministers must provide any application received, and the accompanying information, to Redress Scotland (subsection (5)).
Section 30: Cases where more than one application permitted
78.This section explains that in certain circumstances more than one application to the redress scheme is permitted.
79.Subsection (2) allows for an individually assessed application to be submitted where the person previously successfully applied for a fixed rate payment. This is, however, subject to the rule in section 39(3)(a) which ensures that any fixed rate payment which was previously paid is taken into account in determining the subsequent application for an individually assessed payment.
80.Subsection (3) allows a person to make a further application to Redress Scotland for an individually assessed payment. This is allowed where a previous application for such a payment resulted in the person accepting a payment below the maximum level of payment available under the scheme (level 5, £100,000), and where Redress Scotland is satisfied that a further application is justified on particular grounds (although existence of a ground alone does not guarantee that Redress Scotland will be satisfied that a further application is justified; Redress Scotland might not be so satisfied if it is clear that the level of redress payment would nonetheless remain the same under section 39(4)). The grounds on which a further application may be justified are that either:
there is new evidence which the person had a reasonable excuse for not providing at the time of the previous application (for example, because new records have come to light since the initial determination was made), or
regulations under section 20(4) of the Act have changed the eligibility criteria of the redress scheme (for example, where a residential institution at which an applicant had been abused and which was not covered by the scheme at the point of the initial determination then comes within the scope of the scheme as a consequence of regulations being made under section 20(4) to expand the definition of “residential institution”).
81.The further application will be determined by Redress Scotland under the provisions of the Act for determining applications, taking into account the new evidence or change in eligibility criteria reflected in the further application. This may result in an offer of a redress payment being made at a higher level than under the previous determination, although that will depend on the individual circumstances. Any redress payment which was previously paid under the first application is taken into account in determining the subsequent application and is deducted from any new offer (see section 39(3)(b)).
82.Subsection (4) states that a next of kin application may be made by a person where a deceased person previously applied for a fixed rate payment or an individually assessed redress payment and the circumstances allow the person to apply for a next of kin payment under section 24(1). The circumstances are set out in more detail in paragraphs 50 to 57 of these Notes but such an application is only permitted where the deceased person’s application did not result in a redress payment being made.
83.Subsection (5) allows a further next of kin application to be made by another child of the deceased for a proportion of the next of kin payment in order to ensure that separate applications by children can be accommodated.
84.Subsection (6) allows for an application to be made where an application has been withdrawn under section 33 and the application is for a type of redress payment that the person would have been able to apply for had the withdrawn application not been made. For example, someone who withdrew an application for an individually assessed payment could submit another application of that type. However, whether they could apply for a fixed rate payment would depend upon whether they had already previously made and persisted with an application for that. It would also not allow them to make an application for a next of kin payment in respect of someone else unless that was something they would always have been eligible to apply for.
85.Subsection (7) allows for a redress payment to be made where an application for a payment has previously resulted in a determination under section 60 that the person was precluded from being offered a redress payment and where an appeal in respect of a conviction or sentence means that section 60 no longer applies to the application.
86.Subsection (8) allows for an application to be made where an application previously ended without a person receiving a redress payment, but Redress Scotland is satisfied that special circumstances exist which justify allowing the application to be made. This provision would, for example, be capable of covering a case where someone was previously determined to be ineligible for a redress payment or precluded from being offered such a payment, or where they simply chose not to accept the redress payment which was previously offered to them. It would also cover where they had applied for an individually assessed payment but received nothing because they had already previously received a fixed rate payment under an application for one and the determination was that the payment of a further sum was not appropriate.
87.Subsection (9) states that special circumstances may include the person’s individual circumstances or the availability of new evidence (provided there was a good reason why that evidence was not provided in the original application), or regulations under section 20(4) having altered eligibility to apply for a redress payment.
Section 31: Application period
88.This section provides that the scheme will be open to applicants until whichever is the later of the end of the period of five years from the day this section comes into force (i.e. the date the financial redress scheme opens for applications) and the day falling two years after the Scottish Child Abuse Inquiry publishes its final report. Subsection (2) provides that the Scottish Ministers have the power to extend the application period beyond that period by regulations subject to the affirmative procedure.
89.Subsection (3) as read with subsection (4) provides that if, at the point 15 months before the scheme is due to end, regulations under subsection (2) have not already been made or are not at that point lying before the Parliament for it to approve the extension of the scheme, the Scottish Ministers will be under a duty to carry out a review of whether the scheme should be extended for a further period (by making such regulations). Subsection (5) requires that the Scottish Ministers publish the findings of any review and lay them before the Scottish Parliament.
Section 32: Pausing of application
90.A redress application may be paused, or resumed after being paused, at the request of the applicant (made in writing to the Scottish Ministers), at any time before a determination has been made. In relation to “writing”, see paragraph 60 of these Notes.
91.The Scottish Ministers must notify Redress Scotland of a request once it is received by the Scottish Ministers. Once Redress Scotland receives this request, the determination of the application must be stopped until the application is resumed by the applicant requesting this, or until it is withdrawn (as provided for under section 33).
92.Subsection (5) states that where an application is paused under this section, it is to be treated as being withdrawn on the final day of the application period unless the applicant requests that their application should be resumed or withdrawn on or before the final day. This provides a longstop date in the event that there is no further engagement by the applicant with the paused application.
Section 33: Withdrawal of application
93.A redress application may be withdrawn by a request in writing from the applicant to the Scottish Ministers at any time before a determination is made under section 36. In relation to “writing”, see paragraph 60 of these Notes.
94.The Scottish Ministers must notify Redress Scotland of this request as soon as is practicable. Where Redress Scotland is notified of such a request, Redress Scotland must bring any further determinations which relate to the application to an end.
95.Where an application is withdrawn, it is to be treated for the purpose of section 24(3)(a) as though the application had never been made. The relevance of this is discussed further at paragraph 52 of these Notes.
