Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021

42 Deduction of previous payments from redress payment

(1) This section and section 43 apply where—

(a) the panel appointed under section 35 to determine an application or, as the case may be, a review panel appointed under section 55 to conduct a review determines that an applicant is eligible for a redress payment, and

(b) before the date of the determination by virtue of which an offer of a redress payment is made, the applicant, or the person in respect of whom the application is made, received or became entitled to a payment mentioned in subsection (2) (a “relevant payment”).

(2) A relevant payment is a payment, to the extent that it relates to relevant abuse, by way of any of the following—

(a) an award of damages or compensation by a court,

(b) a payment in settlement of a claim (whether or not court proceedings were commenced),

(c) an award of compensation under the Criminal Injuries Compensation Scheme,

(d) a payment under any other statutory scheme,

(e) a payment under the advance payment scheme or under any other non-statutory scheme,

(f) in so far as not falling within paragraphs (a) to (e), an ex gratia payment.

(3) But a payment is not a relevant payment—

(a) to the extent that it relates to legal fees or other costs incurred in relation to any proceedings, application or other process by virtue of which the relevant payment, or the entitlement to it, was obtained, or

(b) if it is a redress payment or a payment of costs in relation to such a payment by virtue of section 91.

(4) Subject to section 43—

(a) the relevant payment mentioned in subsection (1)(b) or, as the case may be, that payment as adjusted in accordance with subsection (5), or

(b) where more than one relevant payment has been made, the total of the relevant payments, or of the payments as so adjusted,

is to be deducted from the redress payment for which the applicant is eligible.

(5) A relevant payment which was received before the day this section comes into force is to be adjusted in accordance with this subsection by adjusting it using the ratio published by the Treasury and known as the Gross Domestic Product deflator by reference to the period—

(a) beginning with the date the relevant payment was made, and

(b) ending with the day this section comes into force.

(6) The Scottish Ministers may by regulations—

(a) modify the meaning of “relevant payment” (by modifying this section or otherwise) to—

(i) add a description of a payment,

(ii) vary the description of a payment,

(iii) remove a description of a payment,

(b) modify subsection (7) as Ministers consider appropriate in consequence of any modification made by virtue of paragraph (a) or otherwise.

(7) For the purposes of subsection (2)—

• “the advance payment scheme” means the non-statutory scheme operated by the Scottish Ministers, for payment to certain persons who were abused as children in certain care settings, which opened for applications on 25 April 2019,

• “the Criminal Injuries Compensation Scheme” means—

  (a)

  the schemes established by arrangements made under the Criminal Injuries Compensation Act 1995,

  (b)

  arrangements for compensation for criminal injuries which were made by the Secretary of State and in operation before the commencement of those schemes, or

  (c)

  the scheme established under the Criminal Injuries (Northern Ireland) Order 2002 (S.I. 2002/796 (N.I.1)),

• “relevant abuse” means—

  (a)

  the abuse to which the application relates, and

  (b)

  any other abuse of the person in respect of whom the application is made for which the applicant would have been eligible to apply for a redress payment by virtue of section 18.