Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

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

Type Act of the Scottish Parliament

Publication 2021-04-23

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

PART 1 — Overview and meaning of “redress scheme”

Overview of Act

1

(1) This Act is arranged as follows.

(2) This Part provides an overview of all the redress-related activity provided for by this Act and defines the “redress scheme”.

(3) Part 2 makes provision—

(a) establishing Redress Scotland,

(b) about the functions of Redress Scotland and the Scottish Ministers in relation to the redress scheme,

(d) to facilitate charities becoming scheme contributors where they wish to do so.

(4) Part 3 makes provision—

(a) about the core eligibility criteria which must be met for a person to apply for a redress payment, and

(b) about the further eligibility criteria which apply when the person who was abused has died and the person's next of kin wishes to make an application.

(5) Part 4 makes provision—

(a) about the requirements which apply to applications for a redress payment and how Redress Scotland will determine such applications,

(b) about the different types of redress payments which can be offered (a fixed rate payment, an individually assessed payment or a next of kin payment),

(d) for the signature of a waiver to be required where an applicant wishes to accept a redress payment,

(e) about how long an offer of a redress payment is to remain valid, and how payment is to be made where the offer is accepted,

(f) for a right to a review in respect of the determination of an application for a redress payment,

(g) about how applications will be determined where the person who would otherwise be offered the redress payment, or (if not the same person) the person who was abused, has a serious criminal conviction,

(h) about what will happen if the applicant dies,

(i) for the recovery of redress payments made in error and the reconsideration of determinations which may have been materially affected by error,

(j) about how information required or provided in relation to an application is to be obtained, shared, and kept confidential.

(6) Part 5 makes provision—

(a) about the provision of support in connection with applications,

(b) about the provision of support to certain persons following an application under this Act or under the advance payment scheme,

(d) about the payment of fees for legal work in connection with applications,

(e) for the recovery of payments, other than redress payments, made in error.

(7) Part 6 makes provision about the reporting that is or can be required of scheme contributors and certain other persons in relation to their redress activity.

(8) Part 7 makes provision—

(a) for the establishment of the Survivor Forum,

(b) for the dissolution of the National Confidential Forum,

(d) about the interpretation of this Act,

(e) for the issuing of guidance and the making of regulations,

(f) for the commencement of this Act and about its short title.

Meaning of “redress scheme”

2

In this Act, the “redress scheme” means the scheme established by this Act for financial redress and related support for and in respect of survivors of historical child abuse in relevant care settings in Scotland.

PART 2 — Operation of the redress scheme

Redress Scotland

Establishment

3

(1) Redress Scotland (in Gaelic, Ceartaich Alba) is established.

(2) Redress Scotland is a body corporate.

(3) Redress Scotland has the functions conferred on it under or by virtue of this Act and any other enactment.

Status

4

(1) Redress Scotland—

(a) is not a servant or agent of the Crown,

(b) does not enjoy any status, immunity or privilege of the Crown.

(2) Redress Scotland's members and staff are not to be regarded as civil servants.

Membership, procedures and powers etc.

5

Schedule 1 makes provision—

(a) about the membership, staffing, procedures, powers and duties of Redress Scotland,

(b) for the modification of other Acts so that their provisions apply to Redress Scotland.

Independence

6

(1) In performing the functions conferred on it under or by virtue of this Act, Redress Scotland is not subject to the direction or control of any member of the Scottish Government.

(2) Subsection (1) is subject to any contrary provision in this or any other enactment.

Functions in relation to the redress scheme

Functions of Redress Scotland

7

Redress Scotland has the general function of making determinations in connection with applications by individuals under the redress scheme, including determining—

(a) applications for redress payments,

(b) requests for a review of a determination,

(c) referrals for reconsideration of a determination where the determination may have been materially affected by an error.

Functions of the Scottish Ministers

8

The Scottish Ministers have, in relation to the redress scheme, the general functions of—

(a) making administrative arrangements for the establishment and operation of the redress scheme,

(b) providing information, guidance and support to individuals in connection with applications under the redress scheme.

Duty with respect to ensuring individuals can make informed choices

9

(1) In exercising their functions under paragraph (b) of section 8, the Scottish Ministers must use their best endeavours to ensure that persons who—

(a) are, or may be, considering making an application for a redress payment, or

(b) have decided to make, or have made, such an application,

have the opportunity to make informed choices.

(2) Accordingly, the Scottish Ministers must prepare and publish a statement setting out information about—

(a) the options available to such persons at each stage of the process of making an application for a redress payment,

(b) the support and other assistance available to such persons under the redress scheme, and

(c) the redress for survivors of historical child abuse in care in Scotland, including financial redress, which may be available to such persons otherwise than under the redress scheme.

(3) The statement (the “summary of options”) must include, or set out details of where to find, information about—

(a) the options a person has in relation to—

(i) making, pausing and withdrawing an application for a redress payment,

(ii) accepting an offer of a redress payment, including the timescales for so doing, and the effect of signing and returning a waiver,

(iii) requesting a review of a determination made by Redress Scotland,

(b) the sources and types of information or evidence that an application for a redress payment may or must contain or be accompanied by,

(c) how such information and evidence may be obtained and shared, in particular the assistance available under the scheme in connection with obtaining such information and evidence,

(d) the importance of obtaining independent legal advice, in particular before accepting an offer of a redress payment and signing and returning a waiver,

(e) the availability, under the redress scheme, of payment of fees for legal work in connection with applications, and

(f) the support available under the scheme in connection with applications for redress payments.

(4) The summary of options may include such other information as the Scottish Ministers consider appropriate.

(5) The Scottish Ministers must keep the summary of options under review and may modify it from time to time.

(6) In complying with their duty under subsection (5), the Scottish Ministers must have regard to any recommendations included, by virtue of paragraph 17(2) of schedule 1, in an annual report prepared by Redress Scotland.

(7) If the Scottish Ministers modify the summary of options, they must publish the modified summary.

Provision of administrative support to Redress Scotland

10

The Scottish Ministers must provide such administrative support to Redress Scotland as they consider necessary to enable Redress Scotland to perform the functions conferred on it under or by virtue of this Act.

Duty on the Scottish Ministers and Redress Scotland to co-operate

11

(1) The Scottish Ministers and Redress Scotland must co-operate with one another in exercising the functions in relation to the redress scheme conferred on them or on it under or by virtue of this Act.

(2) Subsection (1) is subject to section 12.

Sharing of information between the Scottish Ministers and Redress Scotland

12

(1) The Scottish Ministers and Redress Scotland may, in the circumstances mentioned in subsection (2), disclose information to each other.

(2) The circumstances are that disclosure of the information is—

(a) necessary to enable the Scottish Ministers or Redress Scotland to perform a function conferred on them or on it under or by virtue of this Act, or

(b) otherwise necessary for or in connection with the operation of the redress scheme.

(3) Nothing in this section authorises a disclosure of any information that would be in contravention of the data protection legislation.

(4) In this section, “the data protection legislation” has the meaning given by section 3(9) of the Data Protection Act 2018.

Principle of dignity, respect and compassion

13

(1) The Scottish Ministers, Redress Scotland, scheme contributors and other relevant persons must, in exercising functions conferred on them under or by virtue of this Act, have regard to the principle that the following persons should be treated with dignity, respect and compassion—

(a) persons who have made, or have decided to make, an application for a redress payment,

(b) persons who are, or may be, considering making such an application,

(d) persons who have requested or may be considering requesting reimbursement of costs and expenses by virtue of regulations under section 91,

(e) nominated beneficiaries.

(2) For the purpose of subsection (1), “other relevant persons” are persons on whom functions are conferred under or by virtue of this Act, other than—

(a) the Scottish Ministers, Redress Scotland and scheme contributors, and

(b) persons mentioned in paragraphs (a) to (e) of subsection (1).

Contributions to the redress scheme

Scheme contributors

14

(1) The Scottish Ministers must establish and maintain a list of public authorities, voluntary organisations and other persons (other than individuals)—

(a) who exercise or have exercised functions in relation to the safeguarding or promotion of the welfare of children or the protection or furthering of their interests,

(b) who, in the opinion of Ministers, are making or have agreed to make a fair and meaningful financial contribution towards the funding of redress payments under this Act, and

(c) who, in making or agreeing to make such a contribution, acknowledge the wrongfulness of, and the harm caused by, the historical child abuse which took place in relevant care settings.

(2) In this Act—

(a) the list established and maintained under subsection (1) is the “contributor list”, and

(b) a public authority, voluntary organisation or other person (other than an individual) included from time to time in the list is a “scheme contributor”.

(3) The contributor list must record, in relation to each scheme contributor—

(a) the date on which the scheme contributor is included in the list,

(b) the financial contribution the scheme contributor is making or has agreed to make,

(d) where a scheme contributor is removed from the list with retrospective effect in accordance with section 16, that fact.

(4) The contributor list may include such other information as the Scottish Ministers consider appropriate, including, in so far as known in relation to each scheme contributor—

(a) the relevant care settings the scheme contributor was involved with (whether as owner, manager or otherwise) or in which the contributor placed children for whom the contributor was responsible, and

(b) the dates between which the scheme contributor was involved with or placed children in those care settings.

(5) The Scottish Ministers must ensure that applicants for redress payments are made aware of the contributor list and of the effect of signing and returning a waiver under section 46.

(6) The Scottish Ministers may revise the contributor list by—

(a) including a public authority, voluntary organisation or other person (other than an individual) in the list as a scheme contributor,

(b) varying the description of a scheme contributor,

(d) including information in the list about payments made by a scheme contributor in respect of the financial contribution the contributor is making or has agreed to make,

(e) modifying such information,

(f) modifying other information in the list, including information relating to the relevant care settings recorded in it.

(7) The Scottish Ministers must publish the contributor list (including the list as revised) at such intervals, and in such form, as they consider appropriate.

(8) Removal of a scheme contributor from the contributor list by virtue of subsection (6)(c) does not affect any waiver signed and returned under section 46 in relation to that scheme contributor unless and to the extent that the removal has retrospective effect.

(9) For the purposes of other proceedings—

(a) the fact of a public authority, voluntary organisation or other person becoming a scheme contributor, and

(b) the giving, by that authority, organisation or other person, of the acknowledgement required by subsection (1)(c) in order to become such a scheme contributor,

are not to be taken as evidence of anything relevant to the determination of any question of liability in connection with an allegation of abuse.

Statement of principles in relation to contributor list

15

(1) The Scottish Ministers must prepare and publish a statement of the principles according to which they will determine whether to—

(a) include a public authority, voluntary organisation or other person (other than an individual) in the contributor list,

(b) remove a scheme contributor from the list,

(2) For the purpose of subsection (1)—

(a) the statement of principles must include the matters which the Scottish Ministers will take into account in determining whether a financial contribution that a public authority, voluntary organisation or other person is making or proposing to make is fair and meaningful, and

(b) those matters must include—

(i) the circumstances in which a contribution that the authority, organisation or other person proposes to make over a period of time for reasons of affordability can be a fair and meaningful one,

(ii) the circumstances in which a contribution that takes into account the sustainability of any services provided by the authority, organisation or other person can be a fair and meaningful one.

(3) For the purpose of this section, it is immaterial that the preparation or publication of a statement of principles took place before the day this section comes into force.

Retrospective removal of scheme contributor from contributor list

16

(1) The Scottish Ministers may remove a scheme contributor from the contributor list with retrospective effect only where the removal is a result of the contributor failing to make the financial contribution mentioned in section 14(1)(b) which the contributor had agreed to make.

(2) Where the Scottish Ministers intend to remove a scheme contributor with retrospective effect, they must carry out an assessment of any contribution made by the contributor under the agreement and allocate it against redress payments as they consider appropriate.

(3) The allocation must—

(a) be carried out in accordance with any statement published under section 15 about how a fair and meaningful financial contribution is to be calculated, and

(b) allow the Scottish Ministers to determine the date on which they consider any contribution made by the scheme contributor to be exhausted.

(4) In determining the date on which a retrospective removal is to take effect, the Scottish Ministers must have regard to the date on which they consider that any contribution made by the scheme contributor is exhausted.

Financial contributions by charities

17

(1) This section applies where a charity makes a financial contribution to the Scottish Ministers for the purpose of redress payments being made under this Act.

(2) The making of the financial contribution is to be treated for all purposes as—

(a) being in furtherance of the charity's charitable purposes and consistent with its constitution,

(b) providing public benefit,

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.