Chapter 4: Death of applicant
Section 65: Nomination of a beneficiary
182.Subsection (1) provides that an applicant for a fixed rate payment or an individually assessed payment may nominate a person (a “nominated beneficiary”) to take over the application when permitted by section 66 in the event that the applicant dies while the application is ongoing. Under schedule 1 of ILRA, “person” is defined as including “a body of persons corporate or unincorporated and a partnership constituted under the law of Scotland”. This therefore would allow organisations such as charities to be nominated as nominated beneficiaries. A nomination can be part of the application, or can be made by way of other notice in writing to Redress Scotland.
183.In accordance with subsection (2), the nomination remains in force until it is withdrawn by the applicant by notice in writing to the Scottish Ministers, or alternatively the person who is nominated dies or, in the case of a person other than an individual, ceases to exist.
184.Subsection (3) sets out that a reference to an “application” also includes a request for a review of the determination of that application, so a nominated beneficiary who takes over an application can also take over any review of it.
Section 66: Applicant’s death while application ongoing
185.Subsection (1) provides that the death of an applicant during the application process will bring an application to an end, unless there is a nomination in force in relation to it under section 65 (nomination of beneficiary) and the nominated beneficiary is to be invited to take over the application by virtue of subsection (2) or (3) of this section.
186.Subsection (2) sets out that where an applicant has died after the panel has all of the information required to determine the application, but while it is still ongoing, the nominated beneficiary is to be invited to take over the application.
187.Subsection (3) provides that, where an applicant has died after making an application, but before the panel has all of the information required to determine the application, the panel must make a determination in accordance with subsection (4) whether or not the nominated beneficiary should be invited to take over the application. In accordance with subsection (4), the nominated beneficiary will only be invited to take over the application where there are exceptional circumstances which merit it - for example, where the remaining paperwork required in respect of the application is minimal, and not fundamental to the determination of eligibility of the applicant.
188.Once a determination has been reached, subsection (5) requires Redress Scotland to inform the Scottish Ministers, who must, in turn, notify the nominated beneficiary of the determination, and provide the beneficiary with a summary of the panel’s reasons for it.
189.Subsections (6) and (7) set out what is meant by an application being “ongoing” for the purposes of this section. This is explained in paragraphs 54 and 55 of these Notes.
Section 67: Access to information and evidence by nominated beneficiary
190.This section provides that access to information and evidence held by Redress Scotland or the Scottish Ministers can be provided, subject to certain restrictions, to a nominated beneficiary (that is, a person nominated by an applicant under section 65 to take over their application in the event of their death while the application is ongoing).
191.The section provides for a nominated beneficiary to be able to access any relevant information or evidence when considering whether to accept an invitation to take over the application under section 66(2) or (3) of the Act, or, having not been invited to take over the application (because too much of the information needed in relation to the application is still outstanding), for the purposes of a review of that decision under section 68. Once a nominated beneficiary takes over an application, their right to access is provided under section 82 instead.
192.Subsection (3) makes clear that the right of access to information and evidence applies so far as that can be provided in a way which is compliant with applicable data protection legislation (including the Data Protection Act 2018 and the General Data Protection Regulation as now enshrined in UK law), and without releasing information or evidence that would identify any person other than the applicant or nominated beneficiary.
Section 68: Review of determination made under section 66(3)
193.This section provides for a review of a determination made under section 66(3) that a nominated beneficiary is not going to be invited to take over an application following an applicant’s death.
194.In accordance with subsection (2), any request for a review must be made to the Scottish Ministers within eight weeks of the date on which notice of the determination was received by the nominated beneficiary, be in the required form as set out by the Scottish Ministers, and specify why the review is being requested. Any accompanying documents and information considered relevant by the nominated beneficiary must also be produced as part of this process. As soon as reasonably practicable after receiving a request for a review, the Scottish Ministers will pass it, and any accompanying information, to Redress Scotland.
195.Subsection (4) permits a review to be conducted despite the request for it not being made within the timescale specified in subsection (2), if Redress Scotland is satisfied that the applicant has a good reason for not requesting it sooner.
196.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 69.
Section 69: Outcome of a section 68 review
197.Subsection (1) sets out what a panel conducting a review under section 68 (review of determination made under section 66(3)) must consider; namely, 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 the application should now be determined differently on the basis of that additional evidence. In either case, the review panel may uphold or reverse the original determination.
198.Subsection (2) requires Redress Scotland to inform the Scottish Ministers of the outcome following the review. The Scottish Ministers must then, as soon as reasonably practicable, notify the nominated beneficiary of the review panel’s determination, and provide the nominated beneficiary 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 a determination under this section. Subsection (3) provides that where the review panel reverses the original determination, the Scottish Ministers must invite the nominated beneficiary to take over the application. Subsection (4) provides that, where the review panel determines that the nominated beneficiary is to take over the application, it is to be treated as having been continued by section 66(3), so section 71 would apply to those who are invited to take over an application following a review just as it would apply to those who were invited to take over an application from the outset.
199.In accordance with subsection (5), the determination of a review panel under this section is final. This means that there is no further right of appeal in respect of this decision.
Section 70: Applicant’s death after offer accepted
200.This section provides that, where an applicant to the redress scheme dies after accepting the payment and signing the waiver but before the payment is made, the payment will pass to the applicant’s estate.
Section 71: Invitation to nominated beneficiary to take over application
201.This section provides for what is to happen where an applicant for a redress payment dies in the course of their application and a nominated beneficiary is to be invited to take over the application under section 66.
202.Once a nominated beneficiary is to be invited to take over the application, the Scottish Ministers must notify them of the invitation and provide them information about the effect of doing so. Paragraph 60 of these Notes applies equally to the form of notice of an invitation under this section.
203.Subsection (3) provides the nominated beneficiary with a period of eight weeks to accept the invitation by giving notice in writing to the Scottish Ministers (and in relation to “writing”, see paragraph 60 of these Notes). Where the application is incomplete and further information is required before the application can be determined (see section 66(3)), the nominated beneficiary must provide any remaining information which is required from them within eight weeks. If the nominated beneficiary does these things within the eight week period, they take over the application.
204.Once the nominated beneficiary has (within the permitted timescale) accepted the invitation to take over the application, the Scottish Ministers must inform Redress Scotland of that as soon as reasonably practicable. In addition, in a case where the nominated beneficiary also has to provide any remaining information required from them within the permitted timescale, the Scottish Ministers must also pass on any information that has been provided, as soon as it is reasonably practicable to do so.
205.Subsection (5) provides that, should the nominated beneficiary not take all of the actions set out in subsection (3) (where applicable) within the period specified, the application will be treated as being brought to an end.
206.A nominated beneficiary must provide the Scottish Ministers with evidence in relation to the death of the applicant and the nominated beneficiary’s identity should it be requested (subsection (7)).
Section 72: Application taken over by nominated beneficiary
207.This section sets out what happens where an applicant for a redress payment dies in the course of their application and the application is then taken over by a nominated beneficiary.
208.Where a nominated beneficiary takes over the application, the application and any review thereof will continue to be determined. It will be determined on the basis of the eligibility of the applicant. Consideration of any relevant payments to be deducted and the question of whether a fixed rate payment was previously paid or, in the case of an application made by virtue of section 30(3), an individually assessed payment was previously paid, will be based on whether it has been paid to the applicant or their estate. However, the nominated beneficiary is otherwise to step into the applicant’s shoes in relation to the application.
209.Subject to certain exceptions, the nominated beneficiary is therefore to be offered any redress payment which the applicant would have been offered if alive (subject to the nominated beneficiary not having any serious criminal convictions which preclude such a payment). The nominated beneficiary may also do anything in respect of determination of the application that the applicant would have been able to do. Requirements placed on applicants in relation to applications are also imposed on the beneficiary.
210.The exceptions to this general approach are set out in subsection (3) of this section—
the nominated beneficiary is not to be treated as having applied for a redress payment for the purpose of Part 3 (Eligibility and key concepts), meaning that if the nominated beneficiary dies having been offered a payment, their next of kin cannot seek permission to apply for a next of kin payment under section 25;
where a waiver was previously signed by the applicant in respect of a fixed rate payment or, in the case of an application made by virtue of section 30(3), an individually assessed payment, a new waiver in respect of any further payment will need to be signed by the nominated beneficiary even if the contributor list has not changed in the meantime, as the applicant’s previous waiver does not waive the nominated beneficiary’s rights;
the nominated beneficiary may neither nominate a further beneficiary, nor apply for emotional or psychological support (see section 90).
211.Where a nominated beneficiary takes over an application following the determination of the application (or following a determination of a review of the application), subsection (4) ensures that any serious unspent criminal convictions of the nominated beneficiary are considered. Section 60 applies such that a panel must, as soon as reasonably practicable after the nominated beneficiary takes over the application, consider the effect of any serious previous conviction as set out in that section and make a determination as to whether the nominated beneficiary is precluded from receiving the redress payment as a result.
212.Where the nominated beneficiary takes over an application before the application (or a review of it) has been determined, section 60 will operate without any modifications in order to take account of any serious unspent criminal convictions of the nominated beneficiary (in addition to those of the now deceased applicant).
Section 73: Nominated beneficiary’s death etc.
213.This section provides for what happens where a nominated beneficiary who has taken over a redress application subsequently dies themselves. Under subsection (2), if the nominated beneficiary dies during the course of the application (or ceases to exist if an organisation), the application comes to an end. Under subsection (3), if the nominated beneficiary was an individual and had accepted an offer of redress payment by signing a waiver before their death, the redress payment will be paid to their estate.
