23 April 2021
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.