23 April 2021
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)).
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.
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.
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.
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.
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.
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.
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.
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.
109.This section sets out the amount of the fixed rate payment, which is £10,000.
110.This section sets out the amounts of individually assessed payments that can be offered by the panel depending on the nature, severity, frequency and duration of the abuse suffered and any other factor that is considered relevant. An individually assessed payment is a payment of £10,000 (a fixed rate payment), together with such further sum (if any) as the panel considers appropriate. As such, the total amount received (subject to any deductions) will be £20,000 for a level 1 payment, £40,000 for a level 2 payment, £60,000 for a level 3 payment, £80,000 for a level 4 payment or £100,000 for a level 5 payment. However, there may be cases where the panel determines that no payment is appropriate beyond the fixed rate payment.
111.Subsection (3)(a) sets out that if a fixed rate payment has previously been made to a person, no further fixed rate payment will be made when deciding upon the individually assessed payment. Accordingly, someone who was assessed as being due a level 2 payment would be offered £30,000 (subject to any deductions) to reflect the fact that the £10,000 fixed rate payment had already been received.
112.Similarly, subsection (3)(b) sets out that if an additional application is being made by virtue of section 30(3) (where Redress Scotland is satisfied that there is new evidence which the applicant had a reasonable excuse for not providing at the time of the previous application and which justifies a further application) any previous redress payment paid to the applicant will be deducted from any payment that falls due to them as a result of the determination of the further application and the new evidence.
113.This section states that the next of kin payment is the equivalent of the relevant share of the fixed rate payment (£10,000). The next of kin payment which can be made under the redress scheme will either be made to one person, or shared. Where the person eligible to receive the next of kin payment is the spouse, civil partner or cohabitant of the deceased person to whom the application relates, the full fixed rate payment will be made to them.
114.In circumstances where the next of kin payment is to be made to a child of the deceased person, the payment will be divided by the number of surviving children of the deceased person at the date of the first child’s application (section 40(2)(b)). A surviving child in this context includes a stepchild or a person treated as their child by the person who died.
115.Therefore, if the person eligible to receive the next of kin payment is the spouse, civil partner or cohabitant of the deceased person, they will be eligible to receive £10,000. If the person who died had three surviving children, and the right to apply for and receive the next of kin payment applies to them, each child will be eligible to receive one third of the fixed rate payment (i.e. £3,333).
116.This section provides that the Scottish Ministers may modify sections 38 and 39 where it is considered appropriate due to material changes in the value of money. However, the figures may only be adjusted upwards. This power may be exercised by regulations subject to the negative procedure. For details of the negative procedure, see section 28 of ILRA.
117.Sections 42 and 43 apply where the panel has determined that an applicant is eligible for a redress payment and, before the determination is made, the applicant or the person in respect of whom the application has been made received or became entitled to a “relevant payment”. This applies whether the payment was made (or the right to it arose) before the date of the application being made or after it.
118.Subsection (2) defines what is meant by a “relevant payment”. A relevant payment is a payment which relates to any abuse of the person to whom the application relates which is covered by the redress scheme. The payment may have taken the form of damages or an out of court settlement. Other payments are also covered. For example, a payment under the advance payment scheme is covered in order to avoid double-counting. As such, those who received a payment under the advance payment scheme can apply for an enhanced sum, but the previous payment is deducted from any offer. Subsection (3) states that legal fees and costs incurred in obtaining the relevant payment are not included in this. A redress payment is also not included given that any double-counting in relation to a person who applies for a fixed rate payment, and then later applies for an individually assessed payment, or a person who submits a further application by virtue of section 30(3) after having already received a redress payment, is addressed instead by section 39(3).
119.Subsection (4) sets out that, subject to section 43 (which deals with a number of less common cases), relevant payments or, where there has been more than one, the total of those relevant payments, or the adjusted figures (as the case may be) are to be deducted from a redress payment. Subsection (5) outlines the steps involved in making the required adjustment to a relevant payment. This is to be done in relation to a payment which was received before the date section 42 comes into force. The Gross Domestic Product deflator ratio (“the GDP deflator”) will be used to establish the present day value of the payment previously paid to the person. This is done by applying the GDP deflator to the relevant payment by reference to the period beginning on the date it was made and ending with the date section 42 comes into force. However, in accordance with section 43(6), a payment under the advance payment scheme is not to be adjusted for inflation.
120.Subsection (6) states that the Scottish Ministers may, by regulations subject to the affirmative procedure, modify the meaning of “relevant payment” and make any modifications to definitions in subsection (7) which may be required.
121.Although this section also applies to a review panel, this only covers the situation where a review panel is the first panel to make a finding of eligibility. In a case where the original panel found the applicant to be eligible but a review was sought in relation to the amount of the offer, section 57(2)(c) prevents the review panel from increasing the deductions to which the offer is to be subject.
122.This section sets out further matters relating to the deduction of previous payments from redress payments.
123.Subsections (2) and (3) set out that where a child of a deceased person has made an application for a next of kin redress payment and where a relevant payment has previously been made in respect of the deceased person, the amount deducted from the redress payment will be divided by the number of surviving children of the deceased person at the date that the first child’s next of kin application is made. The payment offered to each child will therefore be subject to an equal share of the deductions.
124.Subsection (4) sets out that as much of a relevant payment that has already been deducted from a redress payment will not be deducted again from an individually assessed payment – it will only be the balance of the relevant payment which will be deducted. This avoids double-deductions and covers both earlier applications specifically for a fixed rate payment and a payment of a previous redress payment where the application under consideration is a further application made by virtue of section 30(3).
125.Subsection (5) sets out that the panel does not need to deduct a relevant payment to which the applicant has only an entitlement. This would include, for example, where the applicant is entitled to a payment but is unlikely in practice to be able to recover this (because of the financial situation of the debtor).
126.Subsection (6) states that a relevant payment received from the advance payment scheme is not to be adjusted using the GDP deflator.
127.Section 44 sets out that applicants must provide the Scottish Ministers with information about relevant payments they (or the person to whom the application relates) received or are entitled to before their application is determined. The term “relevant payment” is defined in section 42 and relates to payments in respect of abuse of the person in question which is covered under the redress scheme. Subsection (2) sets out the information to be provided about relevant payments. Subsection (2)(e) states that the Scottish Ministers may make regulations about other information which must be provided in relation to relevant payments. Any such regulations are subject to the negative procedure. The Scottish Ministers must pass information about relevant payments to Redress Scotland (subsection (3)). Information about relevant payments can also be obtained directly from third parties under section 80.
128.This section sets out that, where the applicant has entered into a settlement or other agreement relating to a relevant payment that forbids them from disclosing information about relevant payments, the disclosure of that information will not be regarded as a breach of the settlement or other agreement.
129.Section 46(1) provides that, in order to receive a redress payment under the scheme, an applicant must agree to abandon any relevant civil proceedings, and to waive their right to raise such proceedings in the future. The redress scheme is intended to provided applicants with an alternative to civil litigation, and applicants essentially have a choice as to whether to accept a redress payment or to continue or raise relevant civil proceedings. This choice is exercised by the applicant signing a waiver where they wish to accept a redress payment. Relevant civil proceedings covers a wide range of legal actions where an applicant seeks compensation or any other remedy in relation to abuse eligible under the scheme. This would include, for example, actions for damages for personal injury as well as actions for declarator, and cases before the European Court of Human Rights. However, proceedings are only required to be abandoned to the extent that they are relevant civil proceedings. Accordingly, a case could be continued against a non-scheme contributor provided that it was dropped against other parties who were scheme contributors at the relevant time.
130.While a waiver must be signed in order to receive a redress payment, there will be cases where an applicant for an individually assessed payment has already signed a waiver in relation to an earlier redress payment. That earlier payment might have been under a separate application for a fixed rate payment or, where the application under consideration is one made by virtue of section 30(3), it might have been a previous individually assessed redress payment. In such a case, it is possible that, if those against whom proceedings would constitute “relevant civil proceedings” have not changed in the interim, the signature of a waiver would not add anything to the rights which have already been waived. Subsections (2) to (4) therefore deal with this situation and provide that a second waiver need not be signed in such a case, as the original waiver is sufficient. In contrast, where the contributor list has expanded to include new scheme contributors in the intervening period, the person would be required to sign an additional waiver in order to receive the further redress payment.
131.The effect of subsection (5)(b) is that, where the applicant signs and returns a waiver (and thereby abandons any ongoing relevant civil proceedings and waives their right to raise new proceedings), there will be no right of recovery under section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (in so far as it would have entitled any person to recover from the Scottish Ministers or a relevant scheme contributor any contribution towards the payment of any damages or expenses in respect of relevant abuse). Any other rights of recovery or relief, or indemnity against Ministers or other contributors in relation to abuse of that person which is covered under the scheme, also cease to have effect (subsection (5)(c)).
132.Subsection (6) defines “relevant civil proceedings” as those against the Scottish Ministers or any relevant scheme contributor for abuse of the person in question which is covered by the scheme. “Relevant scheme contributor” is defined to mean those contributors included in the published list of scheme contributors on the date the panel determines that the applicant is eligible for the redress payment (under section 35 or 55).
133.Subsection (7) provides that if a contributor is removed from the list with retrospective effect in accordance with section 16, that organisation will not benefit from any waivers from that date. This has the effect of revoking any waivers that were previously granted by applicants to the extent that they would otherwise prevent the bringing of a civil claim against an organisation which has not in the end contributed the agreed amount to that applicant’s redress payment.
134.Section 47 provides that the Scottish Ministers may make regulations, subject to the affirmative procedure, to make further provision about the granting of a waiver under section 46 in order to provide for the form and content of the waiver and in order to specify information about the waiver which must be provided to applicants.
135.This section requires the Scottish Ministers to lay a report before the Scottish Parliament within 18 months of section 46 coming into force, setting out the Scottish Ministers’ assessment of any impact the waiver has on applications for a redress payment, and its effectiveness in encouraging public authorities, voluntary organisations and other persons to become scheme contributors. The report must also set out any steps they intend to take as a result of that assessment, and where they do not intend to take any such steps, their reasons for that.
136.In accordance with subsection (1), once a redress application has been determined and an offer is made under section 36, the applicant can accept the offer by signing and returning a waiver, or the applicant may request a review of the offer in the terms permitted by section 54.
137.If the applicant does neither of these things within the time period during which the offer remains valid, it will be treated as having been rejected (subsection (2)) unless the reason for the inaction is the applicant’s death and a nominated beneficiary then takes over the application.
138.The offer remains valid for a period of six months from the date it is received by the applicant (or such longer period as the panel determining the application may specify) (subsection (3)). As with other timescales which run from the date of receipt of something by the applicant, section 26(5) and (6) of ILRA provides for when an applicant is to be assumed to have received the thing. It should be noted that a review cannot necessarily be sought during the entirety of the period for which the offer is valid: the period for seeking a review is eight weeks, although late requests can be allowed if there is a good reason for any delay.
139.Subsections (4) and (5) make provision as regards the revival of an application in exceptional circumstances where the time period for acceptance has elapsed. Revival of an application would not revive any review rights in relation to it. In such a case, the appropriate course of action would be to seek a late review under section 54(5). However, revival may be appropriate where the applicant wishes to accept the offer but, for example, was unable to do so in time due to a period of hospitalisation.
140.This section provides that an applicant becomes entitled to a redress payment once the offer of a redress payment is accepted and once the Scottish Ministers are satisfied that any relevant civil proceedings have been or will be abandoned. An offer is accepted by the applicant signing and returning a waiver or, where a waiver has previously been granted and a second waiver is not required because of the operation of section 46(2), by written notice (see paragraph 130 of these Notes). The payment will be made as a single payment, or in agreed instalments.
141.This section applies to applicants who have been offered a redress payment and who are under the age of 18 years.
142.Subsection (2) allows a panel determining an application or a review to give directions relating to the payment and management of the redress payment for the benefit of the applicant, where considered appropriate.
143.Subsection (3) provides examples of the options Redress Scotland can consider when making a direction in relation to the payment or management of a redress payment for applicants under the age of 18. The options available to Redress Scotland include making the payment in instalments or retaining the payment until the applicant turns 18.
144.Subsection (4) makes further provision which applies where a direction has postponed the payment of the whole or part of the redress payment (for example, by directing that it should be paid in instalments). Where that is the case, applicants can ask for earlier payment of the whole or part of the redress payment. This means that the redress payment awarded to the applicant can be accessed earlier than provided for in the direction where appropriate. Further details on how this process will work in practice will be included in guidance.
145.Once the applicant reaches the age of 18, the whole of any remaining balance of the redress payment must be paid to the applicant, and paid in accordance with the provision for payment set out in section 50(3).
146.Section 52 allows an applicant to request a review of the panel’s decision in relation to any directions given under section 51(2).
147.In accordance with subsection (2), such a request must be made to the Scottish Ministers before the end of the period of eight weeks beginning with the date on which notice of the direction was received and be made in such form as the Scottish Ministers may require (and under subsection (5), the Scottish Ministers must publicise any requirements for the form the request is to take). The request must also specify why a review is being sought, and should contain or be accompanied by any other information the applicant considers relevant.
148.Subsection (3) states that the Scottish Ministers must provide the request and any accompanying information to Redress Scotland as soon as practicable. Subsection (4) permits Redress Scotland to conduct a review despite it not being requested within the timescale specified in subsection (2)(b), if it is satisfied that the applicant has a good reason for not requesting it sooner.
149.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 53.
150.Subsection (1) sets out that a panel conducting a review under section 52 must consider whether the panel which gave the direction ought to have done so, and, where additional evidence is provided to or obtained by the panel conducting the review, whether the question of the direction to be given (if any) ought to be determined differently as a result. In either case, the review panel may uphold or reverse the original direction.
151.Subsection (2) requires the Scottish Ministers to notify the applicant of the review panel’s determination, and to provide the applicant with a summary of the panel’s reasons for reaching that determination.
152.In accordance with subsection (3), 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.
153.This section provides applicants with the right to request a review of certain decisions in relation to their application, where they have not already accepted the offer that has been made (subsection (1)).
154.Subsection (2) sets out that the decisions which may be reviewed are: that the applicant is not eligible for a redress payment, that the applicant is to be offered a particular level of individually assessed payment, or that a particular amount is to be deducted from the redress payment that has been offered.
155.In accordance with subsection (3), such a request must be made to the Scottish Ministers within eight weeks of the date on which notice of the determination was received. Where the Scottish Ministers set requirements in relation to the form for a request for a review, the request must be in that form (any such requirements being publicised in accordance with subsection (6)). The request must also specify why a review is being sought, and must contain or be accompanied by any other information the applicant considers relevant. The Scottish Ministers must, as soon as reasonably practicable, pass the request and accompanying information to Redress Scotland.
156.Subsection (5) permits Redress Scotland to conduct a review despite it not being requested within the timescale specified in subsection (3), if it is satisfied that the applicant has a good reason for not requesting it sooner. In a case where an offer had been made and was allowed to expire, there is no requirement to apply first to revive the application under section 49(4); the applicant can simply go straight to requesting a late review.
157.This section provides that requests for a review will be determined by Redress Scotland, by a panel consisting of at least three members (none of whom made the determination which is under review). The panel is to be appointed by the chair of Redress Scotland.
158.Where a panel is established under section 55 to conduct a review, it may invite oral representations to be made if it considers this necessary. Otherwise, the review will be determined on the basis of the evidence available to the original decision-makers and any additional evidence provided to or obtained by the review panel, including that contained in the request for the review or in any written representations it has received. In accordance with subsection (2), any additional procedural requirements will be determined by Redress Scotland.
159.Subsection (1) sets out that a panel conducting a review under section 55 must consider 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 as a result of that additional evidence.
160.Once a review is under consideration, the review panel is not restricted to the matters raised in the application for review and may change any part of the decision taken in respect of the redress application (subsection (3)). However, subsection (2) provides that the review panel may not reverse a decision that the applicant is eligible for a redress payment, nor may the panel decide that a lower amount should be offered to the applicant than was offered initially or that any deduction made in accordance with section 42 should be increased. In other words, the applicant cannot be placed in a worse position following a review.
161.Subsection (4) provides that the review panel has no power to rule on or determine any person’s civil or criminal liability, nor can its determinations be relied on in other proceedings as evidence that the acts complained of occurred or did not occur.
162.Subsection (5) requires the Scottish Ministers to notify the applicant of the review panel’s determination, and to provide the applicant with a summary of the panel’s reasons for reaching that determination. Where an offer is made, comparable information must be given in relation to it as would have been given under section 36. Paragraph 60 of these Notes applies equally to the form of notice of the outcome of a review under this section.
163.In accordance with subsection (6), 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.
164.Following review, if an offer of a redress payment is made it will be valid for a period of six months (or for such longer period as the review panel specifies). The applicant can choose to accept the offer in accordance with section 50(1), and it will be considered to have been rejected if there is no such acceptance within the period during which it is valid.
165.Subsections (4) and (5) make provision as regards the revival of the application in exceptional circumstances where the time period for acceptance has elapsed.
166.In accordance with this section, an applicant who has requested a review of a decision can withdraw that request in writing at any time before the review is determined. In relation to “writing”, see paragraph 60 of these Notes. While no further request for review can be made on the same basis as the original application for review, the applicant may submit another application for review in respect of a different aspect of the original decision (subsection (5)). For example, if a decision is made to offer a particular level of individually assessed redress payment, with a particular level of deduction for a relevant payment taken into account, that decision can be subject to review. If a review of the level of deduction is made and then withdrawn, it cannot be resubmitted. However, a subsequent request may be made in respect of the level of individually assessed redress payment offered.
167.If a request for review is withdrawn, the original decision remains in place, including the original offer of a redress payment (if one was made). The period that the offer is open, originally valid for the six month period (or such other period as the panel specified), will be extended by the number of days from the request of the review to its withdrawal (subsection (7)). In addition, it would be open to the original panel to extend the period further under section 49(3)(b) if there were a good reason to do so.
168.Section 60 provides that where an applicant (including a next of kin applicant) or a nominated beneficiary has been convicted of certain serious offences, whether in the United Kingdom or elsewhere in the world, before a panel can determine their application, the panel must first determine whether it would be contrary to the public interest to make a redress payment to that person and, in consequence, whether that person should be precluded from being offered a redress payment. This applies whether the conviction occurred before the date of the application or after it. This also applies where the person to whom the application relates (where not the applicant) has been convicted of such an offence.
169.For the purpose of these provisions, a relevant offence is murder, rape, or another sexual or violent offence which resulted in a person being sentenced to a period of imprisonment of five years or more. Section 61 contains definitions for the purpose of this section. It also contains a regulation-making power (subject to the affirmative procedure) to add, vary or remove offences. In light of the Rehabilitation of Offenders Act 1974 (sections 1 and 4), for the purpose of these provisions account will only be taken of unspent convictions.
170.Subsection (6) provides for the matters to which the panel must have regard in reaching its decision as to whether a person should be precluded from being eligible for a redress payment as a result of a serious criminal conviction. In addition, in exercise of the power in section 106, the Scottish Ministers may issue guidance which Redress Scotland would have to have regard to when making an assessment for the purpose of this provision.
171.Where a determination is made to preclude a person from being offered a redress payment, subsection (7) allows the panel to determine whether the person would otherwise have been eligible for such a payment. This is of importance to survivors of abuse who would, notwithstanding that they are precluded from being offered a redress payment, qualify for elements of non-financial redress offered by the scheme including access to emotional and psychological support. Subsection (8) states that the Scottish Ministers must notify the applicant of the determination and provide reasons for the panel’s determination. Paragraph 60 of these Notes applies equally to the form of notice of a determination under this section.
172.This section provides that a person who has been notified of a determination under section 60 may request a review of it. The review may relate to the decision that the person should be precluded from being offered a redress payment, or it may relate to the determination as to whether or not the person would, but for the previous conviction, have been eligible for a redress payment.
173.In accordance with subsection (2), such a request must be made to the Scottish Ministers within eight weeks of the date on which notice of the determination was received. Where the Scottish Ministers set requirements in relation to the form for a request for a review, the request must be in that form (any such requirements being publicised under subsection (5)). The request must also specify why a review is being sought, and must contain or be accompanied by any other information the applicant considers relevant.
174.The Scottish Ministers must, as soon as reasonably practicable, pass the request and accompanying information to Redress Scotland for it to determine.
175.Subsection (4) permits Redress Scotland to conduct a review despite the request not being made within the timescale specified in subsection (2), if it is satisfied that the applicant has a good reason for not requesting it sooner.
176.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 63.
177.Subsection (1) sets out that a panel conducting a review under section 62 must consider 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 as a result of that additional evidence. In either case, the review panel may uphold or reverse the original determination.
178.Subsection (2) requires the Scottish Ministers to notify the applicant of the review panel’s determination, and to provide the applicant 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 the outcome of a review under this section.
179.In accordance with subsection (4), 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.
180.Subsection (1) states that an applicant or (as applicable) the applicant’s nominated beneficiary must provide the Scottish Ministers with the information mentioned in subsection (2) in relation to any conviction which is or may be relevant under section 60.
181.Subsection (2) lists the information to be provided in relation to a conviction. Where this information is provided in relation to a conviction under subsection (1), the Scottish Ministers must provide this information to Redress Scotland (subsection (3)).
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.
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.
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.
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.
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.
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.
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)).
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).
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.
214.This section provides that a person is liable to pay the Scottish Ministers the value of any redress payment that has been paid to that person due to a “relevant error”, although only to the extent that it is attributable to the relevant error.
215.Subsection (2) sets out that the liability is the difference in value between the redress payments that were paid to that person, and those that would have been paid had the relevant error not occurred. Subsection (3) provides that any sum in respect of which the Scottish Ministers seek repayment may be paid in instalments if agreed with the person, or otherwise as a single payment.
216.“Relevant error” is defined in subsection (4) to mean either an error when making a redress payment, or an error which Redress Scotland determines under section 75 or 76 to have led to a determination being made incorrectly or on the basis of incorrect or misleading information (where this materially affected the determination).
217.Accordingly, any redress payment which was paid in error to the wrong account holder or where the wrong amount was entered in a bank transfer by mistake would be repayable, as that would constitute a relevant error under subsection (4)(a). Redress Scotland would not need to be involved in the recovery of such a payment. However, under subsection (4)(b), payments which are paid in accordance with a determination of Redress Scotland may only be recovered where Redress Scotland carries out a further determination process and is satisfied that an error materially affected the determination. The error may be one of, for example, having incorrectly calculated previous payments to be deducted despite having accurate information to work from, or it may be one of, for example, having been supplied (accidentally or otherwise) with evidence which misstated the details of the abuse.
218.This section provides that, where Redress Scotland or the Scottish Ministers have cause to believe that an error may have materially affected a determination under Part 4 of the Act, they must make a referral to a panel of at least three members of Redress Scotland appointed to consider the matter. A reconsideration can occur either once a payment has already been made or in advance of a payment being made (if the error is known about in time).
219.Where Redress Scotland refers a determination for reconsideration, subsection (3) provides that Redress Scotland must inform the Scottish Ministers as soon as reasonably practicable. Where either Redress Scotland or the Scottish Ministers refer a determination for reconsideration, subsection (4) provides that the Scottish Ministers must then, again as soon as reasonably practicable, notify the relevant person that the determination is to be reconsidered and of the reasons for that, as well as providing information about the implications of the reconsideration. A period of at least eight weeks must be provided for the person to make written representations in relation to the reconsideration. Paragraph 60 of these Notes applies equally to the giving of notice to a person under subsection (4) that a determination is to be reconsidered. It is also relevant to the meaning of “writing” in relation to the making of representations under this section.
220.Subsection (5) provides that, once the period allowed for written representations has ended, the panel appointed to consider the matter must consider whether the determination was materially affected by an error. If the panel considers that the determination was so affected, it must redetermine it as it would have been determined had the error not occurred. In accordance with subsection (6), for the purposes of other proceedings (civil or criminal), nothing done under a reconsideration can be taken as a finding that any person mentioned in the original application acted or failed to act in a way set out in that application. This rule also applies to original determinations and reviews of them (see sections 36 and 57(4)).
221.Subsection (7) provides for notification requirements which apply once the reconsideration has taken place, and requires Redress Scotland to inform the Scottish Ministers, who must then notify the person affected of the outcome of the panel’s reconsideration, including providing a summary of the reasons for the panel’s decision. Paragraph 60 of these Notes applies equally to the form of notice of a determination under this section.
222.Subsection (8) provides that, where a redetermination relates to a redress payment that has not yet been made, the reconsidered determination takes the place of the original determination, but any review is to be under section 76 rather than section 54, so that there are not two different review rights applying simultaneously in respect of the same matter. Subsection (9) sets out the meanings of “error” and “relevant person” for the purposes of this section. The person who is notified of a reconsideration will usually be the applicant (or their nominated beneficiary) but there may be times where that person died after accepting a payment but before receiving it, and the payment was therefore redirected elsewhere.
223.This section provides for a review of a determination under section 75 (reconsideration of determination where possible material error).
224.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 person requesting the review (that is, the person who was notified of the determination under section 75). The Scottish Ministers must then provide the request and accompanying information to Redress Scotland as soon as reasonably practicable. Where the Scottish Ministers set requirements in relation to the form for a request for a review, the request must be in that form (any such requirements being publicised under subsection (5)). The request must also specify why a review is being sought, and contain or be accompanied by any other information the applicant considers relevant.
225.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.
226.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 77.
227.Subsection (1) sets out what a review panel conducting a review under section 76 of a reconsidered determination must consider: namely, whether the reconsideration panel 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.
228.Subsection (2) provides that the review panel may not reverse or vary a determination under section 75 that a person remains eligible for a redress payment, nor determine that a person is to be entitled to or offered a lower amount of individually assessed payment than that person was entitled to or offered under section 75. The review panel also may not determine that more is to be deducted by way of relevant payment in accordance with section 42 from the person’s redress payment than was determined under section 75. Subsection (3) goes on to provide that the review panel may otherwise uphold or reverse any part of the determination, irrespective of whether the request for a review relates to that part of it or not.
229.Subsection (4) provides that subsections (4) and (7) of section 36 apply to a determination as upheld, reversed or varied as they apply to a determination made under section 36 (determination of applications). This is subject to the modification that references to the panel appointed under section 35 (decision-making panels) to determine the application are to be read as references to the review panel.
230.Subsection (5) requires Redress Scotland to inform the Scottish Ministers of the review panel’s determination, and they must then notify the person who requested the review of the outcome, and provide that person with a summary of reasons provided by Redress Scotland for reaching that determination.
231.In accordance with subsection (6), 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. An exception to this is provided in subsection (7), whereby a further referral for review can be made if that referral relates to a different error.
232.This section provides that regulations (subject to the affirmative procedure) may be made in respect of reconsideration of determinations under section 75 and reviews of reconsidered determinations under section 76.
233.Subsection (2) sets out a non-exhaustive list of some examples of provision that may be made by these regulations. For example, it might be appropriate for provision to be made setting aside a waiver in the event that the redress payment to which it relates is reduced to nil by a reconsideration; or it may be appropriate for provision to be made for the recovery of fees for legal work or other costs and expenses relating to a reconsideration which are paid due to an error. It might also be appropriate for the rule in section 75(5)(b) to be modified slightly. While in most cases a reconsideration panel ought to be considering what determination would have been reached had the error not been made, that may not always be appropriate. If the error in the original determination was a result of fraud and the applicant has since been convicted of a serious criminal conviction to which section 60 applies, it might be appropriate for the panel to be allowed to take account of that conviction. Although the examples in this subsection relate to the initial determination of the reconsideration panel, the power could also be exercised in relation to any reviews of a reconsideration panel’s determination, as subsection (1) expressly covers both aspects.
234.This section provides that the Scottish Ministers may by notice in writing compel individuals or organisations, other than the applicant, to provide evidence relevant to an application for a redress payment. It is not anticipated that this power will need to be used very often as the Scottish Government’s experience in administering the advance payment scheme has been that evidence requested is provided willingly in the vast majority of cases. However, where a formal power to compel is required, this section would allow for that. In relation to the requirement that any notice be in “writing”, see paragraph 60 of these Notes.
235.Subsection (1) allows the Scottish Ministers to compel the production of information, documents, objects, other items of evidence or evidence in the form of a written statement. The deadline for any such request would be specified in the notice. Subsection (2) provides that information may be obtained for the purposes of any determination to be made by a panel appointed under section 35 or any determination to be made by a review panel or a reconsideration panel. The determination of a matter by a review panel includes a review panel appointed under section 55 by virtue of another section – for example, a review panel appointed in accordance with section 62(6) to consider a review of a decision that an individual should be precluded from being offered a redress payment due to serious criminal convictions.
236.Subsection (3) lays out the conditions on which an individual or organisation may challenge the requirement to provide evidence. These are that the person is unable to comply with the notice, or it is not reasonable in all the circumstances to require them to comply with it. Subsection (4) requires the Scottish Ministers to pass any challenge to Redress Scotland for it to determine. Subsection (5) explains the actions Redress Scotland may then take in response to such a challenge: they may confirm, vary or revoke the notice.
237.Subsections (6), (7), and (8) explain considerations individuals or organisations compelled to provide evidence must take into account in relation to redaction and data protection when considering how to respond to a notice to provide evidence.
238.This section provides the Scottish Ministers with a power to obtain information from third parties for the purposes of section 42 (which relates to the deduction of relevant payments from redress payments). The Scottish Ministers may by notice, in writing, require a person other than the applicant to provide information to the panel with details of relevant payments. In relation to the requirement that any notice be in “writing”, see paragraph 60 of these Notes.
239.Subsection (2) provides that a notice under subsection (1) may in particular require information on the following matters: the date on which payment was made or (where applicable) an entitlement to it arose; the amount of the payment; and the matter to which it related. In accordance with subsection (3), it must also specify the name and date of birth of the person to whom the payment relates (which will normally be the applicant but, for example, in the case of a next of kin payment may be the abuse survivor).
240.Subsection (4) states that a notice under subsection (1) does not have effect to the extent that complying with it would involve disclosure of information which would breach data protection legislation, or where the person would be permitted to refuse to comply with it in connection with court proceedings in Scotland. Subsection (5) sets out the meaning of “data protection legislation”.
241.This section provides that Redress Scotland may ask the Scottish Minsters to issue a notice to provide evidence or issue a notice to provide details regarding previous payments which a person has received in relation to relevant abuse. Furthermore, Redress Scotland may ask the Scottish Ministers themselves to provide evidence they hold which is relevant to an application for a redress payment. The Scottish Ministers must comply with such requests within the specified period: in the case of issuing a notice to a third party, that period is four weeks; in the case of providing evidence themselves, that period is such period as Redress Scotland specifies (which must be at least four weeks).
242.This section provides that Redress Scotland and the Scottish Ministers must, on request, provide a person with access to any information or evidence obtained by or provided to it or them in connection with the person’s application for a redress payment.
243.Subsection (2) addresses the situation where a nominated beneficiary seeks access to information or evidence relating to the deceased survivor and provides that this includes a right of access to any information and evidence held in connection with the application prior to it being taken over by the nominated beneficiary. Any information or evidence provided or obtained after the nominated beneficiary had taken over the application would be covered by subsection (1), by reason of the nominated beneficiary being treated under section 72 as having stepped into the original applicant’s shoes.
244.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 that would identify any person other than the person making the request or the original applicant.
245.This section provides the Scottish Ministers with the power to commission reports in connection with applications for fixed rate or individually assessed payments for the purpose of progressing the application, its determination, or the conducting of a review or reconsideration – provided the applicant has given their agreement for this. The determination of a matter by a review panel includes a review panel appointed under section 55 by virtue of another section (see also paragraph 235 of these Notes).
246.This section states that any individual who, or organisation which, fails to comply with a notice from the Scottish Ministers to provide evidence (as laid out in sections 79 and 80), without reasonable excuse, commits a criminal offence. This also applies where the Scottish Ministers fail, without reasonable excuse, to comply with a request from Redress Scotland under section 81(1)(c) to provide information which Ministers hold themselves.
247.An individual or organisation also commits a criminal offence if, without reasonable excuse, they take action to conceal, destroy, alter, or distort evidence which either they know is required, or they have reasonable grounds for believing might be required, under a notice given by the Scottish Ministers or under a request for information made of Ministers by Redress Scotland. This applies in any case where there are reasonable grounds for believing that a notice might be issued or a request made, regardless of whether or not that subsequently happens.
248.An individual or organisation committing either of the aforementioned offences may be imprisoned for up to six months or issued with a fine up to the value of level 3 on the standard scale, or both. The value of level 3 on the standard scale is currently £1,000 (at the time of preparation of these Notes).
249.This section provides that where a criminal offence is committed in relation to a notice or request to provide information (as laid out in sections 79, 80 and 81(1)(c)) by an organisation and where a responsible individual within that organisation or someone acting as such has facilitated the offence – either actively or via neglect – both the organisation and the responsible individual (or the person acting as such) commit the offence. Subsection (3) defines “relevant organisation”. Subsection (4) specifies the meaning of “responsible individual” in relation to different types of organisation.
250.Subsection (1) states that the Crown cannot be held criminally liable for any offence committed in relation to a notice or request to provide evidence. However, the Court of Session may, on an application by the Lord Advocate, declare unlawful any act or omission for which the Crown would be criminally liable if it were not for subsection (1). Subsection (1) does not affect the criminal liability of individual persons in the service of the Crown such as civil servants or other officials engaged by Crown bodies who may be held criminally liable as individuals for any offence committed under section 84.
251.This section sets out the responsibility of Redress Scotland, the Scottish Ministers, their respective staff, and certain other parties to ensure confidentiality when handling information related to the redress scheme which is not otherwise in the public domain. Other than sharing of information and evidence that is done in accordance with section 82, persons listed in section 87 are prohibited from disclosing information given to them which relates to the scheme and has not been freely circulated to the public unless an exception applies.
252.Subsections (3), (4) and (5) describe the circumstances under which information can or must be shared. Specifically, sharing is permitted or, in some cases, required—
within certain limits for the purpose of carrying out any of the functions outlined in the Act or under any regulations made under it, or where it is expressly provided for in either of those places (for example, to provide information to a scheme contributor);
where the person who supplied the information has given their consent;
to enable the police to carry out the investigation of a criminal offence against a child and where it is in the public’s interest to share this information with a constable; or
under a court order in relation to civil or criminal proceedings.
253.Subsection (6) defines the information subject to these provisions.
254.This section lays out the conditions under which the Scottish Ministers or Redress Scotland may share information with third parties. There are four purposes for which information can be shared—
The first is to ask a third party to verify or authenticate evidence provided in connection with an application;
The second is to ask a third party to provide evidence relevant to a redress application;
The third is to ask a third party to provide details of any relevant payments made to a person or payments to which a person is entitled;
The fourth is to enable a scheme contributor to assess whether an individual in receipt of a redress payment has commenced legal proceedings against the scheme contributor in violation of section 46.
255.The third party to which information is disclosed may only use the information or disclose it to a further party for reasons consistent with the four purposes above and the further party may only use the information for the relevant purpose for which it was disclosed to them. For example, an organisation might inform their legal representative that an individual pursuing civil proceedings against the organisation has signed a waiver and therefore has no legal right to pursue the case. The legal representative may only use that information to provide advice to the organisation in question or take appropriate steps to protect the organisation’s legal interests.
256.Subsection (4) provides that the information which may be shared with a third party for the purposes discussed is only such information as the person sharing it considers is reasonably necessary for the purpose for which it is being shared, and a non-exhaustive list of what this might include is given. Subsections (5) and (6) clarify that this provision does not permit any party to share information in such a way as to contravene data protection law.