Determination of applications
Section 34: Prioritisation of applications
96.This section states that the chairing member of Redress Scotland must decide an order of priority for processing all applications, paying particular attention to the age and health of the applicant (to the extent that this is disclosed either in the application or otherwise). For example, the processing of applications from applicants who are terminally ill could be prioritised.
Section 35: Decision-making panels
97.This section lays out the minimum number of Redress Scotland panel members required to assess a fixed rate application (two members), a next of kin application (two members), and an individually assessed application (three members). Panels are to be appointed by the chairing member of Redress Scotland.
Section 36: Determination of applications
98.This section explains that, upon receipt of an application, the Redress Scotland panel appointed to consider it will determine the eligibility of the applicant for the type of redress payment applied for. The standard of proof against which an applicant’s eligibility for a redress payment will be determined is the civil standard of “on the balance of probabilities”.
99.This means that the eligibility criteria will be met if it is determined that the applicant has demonstrated that it was “more likely than not” that abuse of the survivor took place, prior to 1 December 2004, in the eligible care setting where the survivor was resident as a child.
100.Where the applicant is a next of kin applicant, the same standard of proof would also apply to any questions as to their eligibility to apply as next of kin (for example any question as to whether they had cohabitated with the survivor, in a relationship that was akin to that of spouses/civil partners, for at least 6 months immediately prior to the survivor’s death).
101.If satisfied about eligibility, the panel must then determine the amount to be awarded. The panel will assess the application based on the information provided in the application, any further information requested by and provided to the panel, and anything else the panel deems relevant.
102.Subsection (3) ensures that the starting point for the panel when considering an application is that the information provided by the applicant is to be presumed to be true and accurate to the best of the applicant’s knowledge and belief. While this presumption is the starting point, it can be overturned. The effect is that the applicant will submit the application in the knowledge that, as a starting point, there will be a presumption of credibility in favour of their account.
103.Subsection (4) provides that Redress Scotland has no power to rule on or determine any person’s civil or criminal liability when considering applications (which would be the role of a court).
104.The process for determining an application is to be determined by Redress Scotland (having regard to any guidance which may be issued about the matter under section 106). Subsection (6) states that once the application has been determined by Redress Scotland, it must inform the Scottish Ministers, who will then notify the applicant of the outcome of the determination and the reasons for the determination, and provide the applicant with the summary of options (prepared under section 9). Where a payment is offered, the Scottish Ministers must also inform the applicant of the timings and options available to them in relation to the potential acceptance (or not) of a payment. Paragraph 60 of these Notes applies equally to the form of notice of a determination under this section.
105.Subsection (7) provides that neither the offer of redress, nor the failure to make such an offer, can be relied on in other proceedings as evidence that the acts complained of occurred or did not occur.
Section 37: Assessment of amount of redress payment
106.This section lays out the information to be considered when deciding on the amount (if any) to be offered to an applicant. In order for any payment to be offered, the panel must be satisfied of the following matters:
that the applicant meets the eligibility criteria to apply for a redress payment under section 18;
where the application is for a next of kin payment, that the applicant meets the additional eligibility requirements relating to that (as set out in section 24);
that the application meets the requirements provided for under section 29 to the extent that they apply (for example, any requirements as to the information or evidence that must be included with an application for a next of kin payment),
and that the applicant is not precluded from being offered a redress payment under section 60 (which relates to serious unspent criminal convictions).
107.Subsection (3) sets out how the payment should be calculated, taking into account any relevant deductions that must be applied (see section 42). The payments are then made based on the category of applicant and whether the payment is of a fixed rate payment, an individually assessed payment, or a next of kin payment. Subsection (3)(b) acknowledges that someone who has previously applied for and received a fixed rate payment might not be awarded anything more upon making a subsequent application for an individually assessed payment. It also acknowledges that this could equally apply to someone who has previously applied for and received an individually assessed payment and who is permitted to make a second application for that in light of new evidence.
108.Subsection (4) provides that where the application relates to more than one relevant care setting it is only one determination of a redress payment that can be made to cover all establishments in which the person resided.
