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

Type Act of the Scottish Parliament

Publication 2021-04-23

Last updated 2022-02-09

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

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.

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,

(d) being within the powers exercisable by the charity trustees of the charity.

(3) Expressions used in this section which are also used in the Charities and Trustee Investment (Scotland) Act 2005 are to be construed in accordance with that Act.

PART 3 — Eligibility and key concepts

Eligibility to apply for redress payments

Eligibility to apply for a redress payment

18

(1) A person may apply for a redress payment if the person or, in the case of an application for a next of kin payment, the person in respect of whom the application is made was abused while—

(a) a child, and

(b) resident in a relevant care setting in Scotland.

(2) The abuse must have occurred before 1 December 2004.

(3) In this Act, “child” means a person under the age of 18 years.

(4) But subsection (3) does not apply, in relation to an application for a next of kin payment, to a reference to a child of a deceased person.

(5) This section is subject to section 23.

Meaning of “abuse”

19

(1) In this Act, “abuse”, in relation to references to a person having been abused, includes—

(a) sexual abuse,

(b) physical abuse,

(d) abuse which takes the form of neglect.

(2) For the purpose of subsection (1)(b), “physical abuse” includes corporal punishment to the extent that, at the time it was administered, it was not permitted under or by virtue of any enactment or rule of law because it was—

(a) excessive, arbitrary or cruel,

(b) administered for an improper motive, or

Meanings of “relevant care setting” and “resident”

Meaning of “relevant care setting”

20

(1) In this Act, “relevant care setting” means—

(a) a residential institution in which the day-to-day care of children was provided by or on behalf of a person other than a parent or guardian of the children resident there,

(b) a place, other than a residential institution, in which a child resided while being—

(i) boarded-out,

(ii) fostered.

(2) But a place is not a relevant care setting by virtue of subsection (1)(b) where the child was boarded-out or fostered—

(a) with a relative or guardian of the child, or

(b) under arrangements between a parent or guardian of the child and another person unless that other person was either—

(i) a public authority, or

(ii) a voluntary organisation exercising functions in relation to the safeguarding or promotion of the welfare of the child or the protection or furthering of the child's interests.

(3) In this section and in section 22, “residential institution” means—

(a) a children's home,

(b) a penal institution,

(d) school-related accommodation,

(e) secure accommodation.

(4) The Scottish Ministers may by regulations—

(a) modify the meaning of “residential institution” by—

(i) adding a description of establishment as a residential institution to those mentioned in subsection (3),

(ii) varying the description of a residential institution in that subsection,

(b) modify section 21(1) as Ministers consider appropriate in consequence of any modification of subsection (3) or otherwise.

(5) The Scottish Ministers may make regulations under subsection (4) only if satisfied, so far as reasonably practicable, that doing so will not have the effect that persons who would otherwise be eligible to apply for redress payments will cease to be so eligible.

Meaning of “residential institution”: further provision

21

(1) For the purpose of this section and section 20—

“children's home” means a residential establishment which provided accommodation for children in order to safeguard or promote their welfare or otherwise to protect or further their interests,

“penal institution” means an establishment in which children were detained or imprisoned on remand or in pursuance of a sentence imposed by a court of criminal jurisdiction (other than a court-martial),

“personal care” means care which relates to—the day-to-day physical tasks and needs of the person cared for (for example, but without prejudice to that generality, eating and washing), andthe mental processes related to those tasks and needs (for example, but without prejudice to that generality, remembering to eat and wash),

“personal support” means counselling, or other help, as part of a planned programme of care,

“residential care facility” means an establishment, including a hospital—which provided long-term residential accommodation for children for the purpose of meeting needs arising from a mental or physical condition, whether or not medical care or treatment, nursing, or personal care or support was also provided, andin which the child resided under arrangements made by or on behalf of—a public authority, ora voluntary organisation exercising functions in relation to the safeguarding or promotion of the welfare of the child or the protection or furthering of the child's interests,

“school” includes a school other than a public school only where the child's attendance at the school was arranged and paid for by or on behalf of—a local authority or an education authority, ora voluntary organisation exercising functions in relation to the safeguarding or promotion of the welfare of the child or the protection or furthering of the child's interests,

“school-related accommodation” means an establishment (not including domestic premises)—provided by, or under arrangements made by, a person who provided or managed a school, andwhich provided residential accommodation for children for the purpose of or in connection with their attendance at the school,

“secure accommodation” means a residential establishment, other than a penal institution, provided for the purpose of restricting the liberty of children (whether or not the establishment was also provided in order to safeguard or promote the welfare or otherwise to protect or further the interests of children).

(2) In subsection (1), references to an establishment include references to—

(a) part of an establishment, and

(b) an establishment which forms part of another establishment.

Meaning of “resident”

22

(1) A reference to being resident in a relevant care setting includes a reference to being absent from the care setting while under the care of—

(a) the person who provided residential accommodation for the child in the residential institution or other place, or

(b) a person authorised by that person.

(2) For the purpose of subsection (1), it is immaterial whether the child was within or outside Scotland during the period of absence from the relevant care setting.

Exceptions to eligibility

Power to create exceptions to eligibility

23

(1) The Scottish Ministers may by regulations provide that an application may not be made under section 18—

(a) if the person who carried out the abuse was of a specified description,

(b) if the abuse was carried out in circumstances of a specified description,

(c) if the person who was abused came to be resident in the relevant care setting concerned in specified circumstances, or

(d) if the person who was abused was resident in the relevant care setting concerned for a specified purpose.

(2) In subsection (1), “specified” means specified in the regulations.

Eligibility to apply for next of kin payments

Eligibility to apply for a next of kin payment

24

(1) A person may apply for a redress payment under section 18 which takes the form of a next of kin payment only if—

(a) the person meets the eligibility criteria to apply for a next of kin payment, or

(b) the person is granted permission to apply for a next of kin payment under section 25, or on a review under section 26, due to exceptional circumstances.

(2) A person meets the eligibility criteria to apply for a next of kin payment where—

(a) the person is the specified next of kin of someone who died on or after 1 December 2004 (“the deceased person”),

(b) the deceased person would, if alive, have been eligible to apply for a redress payment under section 18 (other than for a next of kin payment), and

(c) where the deceased person died on or after the day section 18 came into force, the condition in subsection (3) is met.

(3) The condition referred to in subsection (2)(c) is that—

(a) the deceased person had not applied for a fixed rate payment or an individually assessed payment, or

(b) the deceased person had applied for such a redress payment but—

(i) died while the application was ongoing,

(ii) where the application was for an individually assessed payment, had not previously been paid a fixed rate payment, and

(iii) either a nominated beneficiary is not taking over, or has not taken over, the application by virtue of section 71 or, if the application was so taken over, it was brought to an end in the circumstances described in section 73(2) without the nominated beneficiary having accepted any redress payment in respect of the application.

(4) For the purpose of subsection (3)(b)(i), whether an application is ongoing is to be determined in accordance with section 66(6) and (7).

Eligibility to apply for a next of kin payment: exceptional circumstances

25

(1) A person may apply for permission to apply for a next of kin payment due to exceptional circumstances where—

(a) the person is the specified next of kin of someone who died (“the deceased person”),

(b) the deceased person had applied for, and been offered, a fixed rate payment or an individually assessed payment but the offer was not accepted during the period it was valid and the deceased person subsequently died, and

(c) if the application was for an individually assessed payment, the deceased person had not previously been paid a fixed rate payment.

(2) An application under subsection (1) must—

(a) be made to the Scottish Ministers,

(b) be made in such form, if any, as Ministers require,

(d) contain or be accompanied by any information the applicant considers relevant.

(3) The Scottish Ministers must, as soon as reasonably practicable after receiving an application under subsection (1), provide the application, and any information accompanying it, to Redress Scotland.

(4) The Scottish Ministers must publicise any requirements which are for the time being set under subsection (2)(b).

(5) An application under subsection (1) is to be determined on behalf of Redress Scotland by a panel of at least 2 members of Redress Scotland appointed by the chairing member.

(6) The procedure for determining an application under subsection (1) is to be determined by Redress Scotland.

(7) The panel appointed under subsection (5) to determine the application may grant the applicant permission to apply for a next of kin payment only where it considers that there are exceptional circumstances which merit it.

(8) Once the panel has determined whether or not to grant the applicant permission to apply for a next of kin payment due to exceptional circumstances, Redress Scotland must inform the Scottish Ministers who must, as soon as reasonably practicable—

(a) notify the applicant of the determination, and

(b) provide the applicant with a summary, provided by Redress Scotland, of the panel's reasons for reaching that determination.

Review of determination made under section 25

26

(1) Where an applicant is notified of a determination under section 25 that permission to apply for a next of kin payment due to exceptional circumstances is not being granted, the applicant may request a review of the determination.

(2) A request for a review must—

(a) be made to the Scottish Ministers,

(b) be made before the end of the period of 8 weeks beginning with the date on which notice of the determination was received by the applicant,

(d) specify why a review is being requested, and

(e) contain or be accompanied by any information the applicant considers relevant.

(3) The Scottish Ministers must, as soon as reasonably practicable after receiving a request for a review, provide the request, and any information accompanying it, to Redress Scotland.

(4) A review may be conducted despite the request for it not being made within the period specified in subsection (2)(b) if Redress Scotland is satisfied that the applicant has a good reason for not requesting a review sooner.

(5) The Scottish Ministers must publicise any requirements which are for the time being set under subsection (2)(c).

(6) Sections 55, 56 and 59(1) to (5) apply for the purposes of a review under this section as they apply for the purposes of a review under section 54, subject to the modification that the reference in section 59(1) to a determination being made under section 57 is to be read as a reference to a determination being made under section 27.

Outcome of a section 26 review

27

(1) On a review under section 26, the review panel appointed under section 55 to conduct it—

(a) must consider—

(i) whether the panel appointed under section 25(5) to determine whether or not to grant permission to apply for a next of kin payment due to exceptional circumstances ought to have reached a different determination, and

(ii) in a case where additional evidence is provided to or obtained by the review panel, whether the application ought to be determined differently as a result,

(b) may uphold or reverse the determination.

(2) Once the review panel has conducted the review, Redress Scotland must inform the Scottish Ministers who must, as soon as reasonably practicable—

(a) notify the applicant of the review panel's determination, and

(b) provide the applicant with a summary, provided by Redress Scotland, of the review panel's reasons for reaching that determination.

(3) The determination of the review panel under this section is final.

Meaning of “specified next of kin”

28

(1) In this Act, “specified next of kin”, in relation to a deceased person, means—

(a) the person who, immediately before the death of the deceased person, was—

(i) the spouse or civil partner of the deceased person, or

(ii) the cohabitant of the deceased person,

(b) where the condition in subsection (3) is met, a child of the deceased person.

(2) In a case where there is or was both a person falling within subsection (1)(a)(i) and a person falling within subsection (1)(a)(ii), subsection (1)(a) is to be read as including only the person who was the cohabitant of the deceased person.

(3) The condition referred to in subsection (1)(b) is that—

(a) there is nobody who falls within subsection (1)(a) (either because there was no such person or because the person has since died), and

(b) in a case where the person has since died, the person had not accepted an offer of a next of kin payment in respect of the deceased person.

(4) In this section—

“child of the deceased person” includes—a stepchild of the deceased person, anda person who was treated by the deceased person as the deceased person's child,

“cohabitant of the deceased person” means a person who—was neither married to nor in a civil partnership with the deceased person, butwas living with that person as if they were married to each other and had been so living for a period of at least 6 months.

PART 4 — Financial redress: redress payments

CHAPTER 1 — Determination of applications for redress payments

Applications

Application for a redress payment

29

(1) An application for a redress payment must—

(a) be made to the Scottish Ministers,

(b) be received during the application period,

(i) a fixed rate payment,

(ii) an individually assessed payment, or

(iii) a next of kin payment,

(d) be made in such form, if any, as Ministers require, and

(e) contain or be accompanied by such information or evidence as Ministers require.

(2) An application may relate to one or more relevant care settings in which abuse took place.

(3) Other than as provided for in section 30, only one application may be made in respect of a person who was abused.

(4) On receiving an application, the Scottish Ministers must provide the summary of options to the applicant.

(5) The Scottish Ministers must provide any application received, and any information or evidence accompanying it, to Redress Scotland.

(6) The Scottish Ministers must publicise any requirements which are for the time being set under subsection (1)(d) or (e).

Cases where more than one application permitted

30

(1) This section makes provision about when a person who is eligible to apply for a redress payment may do so despite an application already having been made in respect of the person who was abused and to whom the application will relate.

(2) An application for an individually assessed payment may be made by a person where—

(a) an application for a fixed rate payment has previously been made in respect of the person, and

(b) that application resulted in a determination that the person was eligible for a fixed rate payment.

(3) An application for an individually assessed payment may be made by a person where—

(a) an application for an individually assessed payment has previously been made in respect of the person,

(b) that application resulted in the applicant accepting a redress payment other than a level 5 payment, and

(i) new evidence is available which the person had a reasonable excuse for not providing in connection with the previous application, or

(ii) regulations under section 20(4) have had the effect of modifying eligibility to apply for a redress payment.

(4) An application for a next of kin payment may be made by a person where—

(a) a deceased person had previously applied for a fixed rate payment or an individually assessed payment, and

(b) the circumstances are such that the person is permitted to apply for a next of kin payment under section 24(1).

(5) An application for a next of kin payment may be made by a child of a deceased person where an application for a next of kin payment has previously been made in respect of the deceased person by another child of the deceased person.

(6) An application for a redress payment may be made by a person where—

(a) a previous application in respect of the person was withdrawn under section 33, and

(b) the new application is for a type of redress payment the person would have been able to apply for had the withdrawn application not been made.

(7) An application for a redress payment may be made by a person where—

(a) an application for a redress payment has previously resulted in a determination under section 60 that the person was precluded from being offered a redress payment, and

(b) as a result of an appeal in respect of a conviction or sentence, section 60 will no longer apply in respect of an application by the person.

(8) An application for a redress payment may be made in respect of a person where—

(a) the person has not previously received a redress payment of a particular type despite having made an application for it which has been brought to an end, but

(b) Redress Scotland is satisfied that special circumstances exist which justify allowing a further application.

(9) For the purpose of subsection (8), special circumstances may include—

(a) the person's individual circumstances,

(b) the availability of new evidence which the person had a reasonable excuse for not providing in connection with the original application,

Application period

31

(1) For the purpose of this Act, the application period during which an application for a redress payment may be made—

(a) begins on the day this section comes into force, and

(b) ends with whichever is the later of—

(i) the expiry of the period of 5 years beginning with that day,

(ii) the day falling 2 years after the Scottish Child Abuse Inquiry (established under the Inquiries Act 2005) publishes its final report.

(2) The Scottish Ministers may by regulations modify paragraph (b) of subsection (1) so as to extend the application period for the time being specified in that subsection.

(3) The Scottish Ministers must, within the period of 15 months ending with the day the application period is due to end under subsection (1)(b), carry out a review of whether the application period should be extended.

(4) But subsection (3) does not apply if, at the beginning of the 15 month period—

(a) the application period has already been extended by regulations under subsection (2), or

(b) a draft Scottish statutory instrument containing regulations under subsection (2) has been laid and is before the Scottish Parliament for approval.

(5) As soon as reasonably practicable following completion of a review under subsection (3), the Scottish Ministers must—

(a) publish the findings of the review,

(b) lay the findings of the review before the Scottish Parliament.

Pausing of application

32

(1) An application for a redress payment may, at the request of the applicant—

(a) be paused, or

(b) having been paused, be resumed,

at any time prior to a determination being made under section 36.

(2) A request under subsection (1) must be made in writing to the Scottish Ministers.

(3) The Scottish Ministers must, as soon as reasonably practicable after receiving a request under subsection (1), inform Redress Scotland of it.

(4) Where Redress Scotland is informed of a request that an application be paused, Redress Scotland must pause any further determination of the application to which the request relates until such time as Redress Scotland is informed that—

(a) the applicant has requested that determination of the application be resumed, or

(b) the application has been withdrawn under section 33.

(5) Where an application is paused under this section, it is to be treated as having been withdrawn on the final day of the application period unless the applicant, on or before that day, either requests that the application be resumed or requests that it be withdrawn.

Withdrawal of application

33

(1) An application for a redress payment may be withdrawn at the request of the applicant at any time prior to a determination being made under section 36.

(2) A request under subsection (1) must be made in writing to the Scottish Ministers.

(3) The Scottish Ministers must, as soon as reasonably practicable after receiving a request under subsection (1), inform Redress Scotland of it.

(4) Where Redress Scotland is informed of a request that an application be withdrawn, Redress Scotland must bring to an end any further determination of the application to which the request relates.

(5) Where an application is withdrawn, it is to be treated for the purpose of section 24(3)(a) as never having been made.

Determination of applications

Prioritisation of applications

34

(1) The chairing member of Redress Scotland must decide the order of priority in which applications for a redress payment are to be determined.

(2) In making a decision under subsection (1), the chairing member must, in particular, have regard to—

(a) the age of the persons by whom applications are made, and

(b) to the extent that it is disclosed to Redress Scotland (in the application or otherwise), the health of those persons.

Decision-making panels

35

(1) An application for a redress payment is to be determined on behalf of Redress Scotland by a panel of members of Redress Scotland appointed by the chairing member in accordance with this section.

(2) A panel appointed to determine an application for a fixed rate payment or a next of kin payment is to consist of at least 2 members.

(3) A panel appointed to determine an application for an individually assessed payment is to consist of at least 3 members.

Determination of applications

36

(1) On receipt of an application by Redress Scotland under section 29, the panel appointed under section 35 to determine the application must determine—

(a) whether, on the balance of probabilities, the applicant is eligible for the type of redress payment sought, and

(b) if so, the amount which the applicant is to be offered.

(2) An application is to be determined on the basis of—

(a) the information provided in or with the application,

(b) any further information provided in response to a request by the panel, and

(3) In determining an application, the panel is to start with the presumption that any information provided by the applicant in respect of the application is true and accurate to the best of the applicant's knowledge and belief.

(4) When determining an application, the panel must not rule on, and has no power to determine, any person's civil or criminal liability arising from any matter to which the application relates.

(5) The procedure for determining an application is otherwise to be determined by Redress Scotland.

(6) Once the panel has determined the application, Redress Scotland must inform the Scottish Ministers who must, as soon as reasonably practicable—

(a) notify the applicant of the determination, and

(b) provide the applicant with—

(i) a summary, provided by Redress Scotland, of the panel's reasons for reaching that determination,

(ii) the summary of options, and

(iii) where an offer of a redress payment is made, information about the period for which the offer remains valid under section 49 and the options available to the applicant in respect of it.

(7) For the purposes of other proceedings, neither the offer of a redress payment nor the failure to make an offer is to be taken as a finding as to whether or not a person who is referred to in an application acted, or failed to act, in a way suggested in the application.

Assessment of amount of redress payment

37

(1) Where a panel is appointed under section 35 to determine an application for a redress payment, the amount of the redress payment (if any) to be offered in respect of the application is to be determined in accordance with this section.

(2) An applicant is eligible for a redress payment where the panel is satisfied that—

(a) the applicant is eligible to apply for a redress payment by virtue of section 18,

(b) where the application is for a next of kin payment, the applicant is eligible to apply for a next of kin payment by virtue of section 24,

(c) the application satisfies the requirements of section 29 to the extent that they apply to the type of redress payment sought, and

(d) the applicant is not precluded from being offered a redress payment by virtue of section 60.

(3) An applicant who is eligible for a redress payment is, subject to any deductions to be made in accordance with section 42, to be offered—

(a) on an application for a fixed rate payment, a fixed rate payment under section 38,

(b) on an application for an individually assessed payment, an individually assessed payment calculated in relation to the application under section 39 (which, in the case of an application made by virtue of section 30(2) or (3), may be zero), or

(c) on an application for a next of kin payment, a next of kin payment calculated in relation to the application under section 40.

(4) In the case of an application which relates to more than one relevant care setting, only one determination of a redress payment may be made in respect of an application regardless of the number of care settings concerned.

Payment levels

Fixed rate payment

38

A fixed rate payment is a payment of £10,000.

Individually assessed payment

39

(1) An individually assessed payment is a payment, based on an assessment of the matters raised by an application, of—

(a) the fixed rate payment, and

(b) if the panel appointed under section 35 to determine the application considers a further sum to be appropriate, the further sum of—

(i) £10,000,

(ii) £30,000,

(iii) £50,000,

(iv) £70,000, or

(v) £90,000,

as the panel considers appropriate.

(2) Accordingly, depending on what (if any) further sum is considered appropriate, an individually assessed payment is a payment in total of—

(a) £10,000 for a fixed rate payment,

(b) £20,000 (a level 1 payment),

(d) £60,000 (a level 3 payment),

(e) £80,000 (a level 4 payment), or

(f) £100,000 (a level 5 payment).

(3) But where—

(a) a fixed rate payment has previously been paid to an applicant, no further fixed rate payment is payable to that applicant when determining an application for an individually assessed payment made by virtue of section 30(2),

(b) the application is an application for an individually assessed payment made by virtue of section 30(3), any redress payment (other than a next of kin payment) which has previously been paid to the applicant is to be deducted from the individually assessed payment for which the applicant is eligible.

(4) In considering what further sum, if any, is appropriate for the purpose of subsection (1)(b), the panel—

(a) must have regard to the nature, severity, frequency and duration of the abuse to which the application relates, and

(b) may have regard to any other matter it considers relevant.

Next of kin payment

40

(1) A next of kin payment is a payment of the relevant share of the fixed rate payment.

(2) For the purpose of subsection (1), the relevant share is—

(a) in the case of an application by the spouse, civil partner or cohabitant of the person in respect of whom the application is made (“the deceased person”), the whole amount,

(b) in the case of an application by a child of the deceased person, the whole amount divided by the total number of surviving children of the deceased person at the date that the first (or, as the case may be, only) application for a next of kin payment is made in respect of the deceased person by a child of the deceased person.

Power to adjust redress payment amounts for inflation

41

The Scottish Ministers may by regulations modify sections 38 and 39 to replace any amount for the time being set out in those sections with such higher amount as they consider to be appropriate in consequence of material changes in the value of money.

Deduction of previous payments

Deduction of previous payments from redress payment

42

(1) This section and section 43 apply where—

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

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

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

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

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

(d) a payment under any other statutory scheme,

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

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

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

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

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

(4) Subject to section 43—

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

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

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

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

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

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

(6) The Scottish Ministers may by regulations—

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

(i) add a description of a payment,

(ii) vary the description of a payment,

(iii) remove a description of a payment,

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

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

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

“the Criminal Injuries Compensation Scheme” means—the schemes established by arrangements made under the Criminal Injuries Compensation Act 1995,arrangements for compensation for criminal injuries which were made by the Secretary of State and in operation before the commencement of those schemes, orthe scheme established under the Criminal Injuries (Northern Ireland) Order 2002 (S.I. 2002/796 (N.I.1)),

“relevant abuse” means—the abuse to which the application relates, andany other abuse of the person in respect of whom the application is made for which the applicant would have been eligible to apply for a redress payment by virtue of section 18.

Deduction of previous payments: further provision

43

(1) This section makes further provision about the deduction of relevant payments from redress payments under section 42(4) and the adjustment of relevant payments in accordance with section 42(5).

(2) Where the applicant mentioned in section 42(1) is a child of a deceased person applying for a next of kin payment in respect of that person, the amount which is to be deducted from the redress payment for which the child is eligible is to be calculated in accordance with subsection (3).

(3) The amount calculated under section 42(4) as the amount to be deducted is to be divided by the total number of surviving children of the deceased person at the date that the first (or, as the case may be, only) application for a next of kin payment is made in respect of the deceased person by a child of that person.

(4) Where—

(a) the application being determined is an application for an individually assessed payment, and

(b) the applicant has previously been paid a redress payment,

a relevant payment is not to be deducted under section 42(4) to the extent that it has already been deducted from the previous redress payment.

(5) Where the panel appointed under section 35 to determine an application or, as the case may be, the review panel appointed under section 55 to conduct a review considers it appropriate, the panel need not deduct under section 42(4) a relevant payment to which the applicant or, as the case may be, the person in respect of whom the application is made, has only an entitlement.

(6) A relevant payment which is a payment under the advance payment scheme is not to be adjusted in accordance with section 42(5).

Information about previous payments from applicant

44

(1) An applicant for a redress payment must provide the Scottish Ministers with the information mentioned in subsection (2) about any relevant payment—

(a) which the applicant, or the person in respect of whom the application is made, has received or become entitled to before the application is made, and

(b) which the applicant receives or becomes entitled to after the application is made but before the application is determined.

(2) The information to be provided is—

(a) the amount of the relevant payment,

(b) the date the relevant payment was made or, as the case may be, an entitlement to it arose,

(d) the circumstances in which the relevant payment was made or an entitlement to it arose, and

(e) any other information about the relevant payment prescribed in regulations made by the Scottish Ministers.

(3) Where an applicant provides information under subsection (1) in relation to a relevant payment, the Scottish Ministers must, as soon as reasonably practicable, provide that information to Redress Scotland.

Information about previous payments: further provision

45

(1) This section applies where—

(a) an applicant provides information about a relevant payment to the Scottish Ministers in accordance with section 44,

(b) the applicant has entered into a settlement or other agreement with any other person in relation to the relevant payment, and

(2) The disclosure of the information in accordance with section 44 is not to be treated as a breach of the settlement or other agreement.

Waiver

46

(1) An applicant to whom an offer of a redress payment is made under section 36 or, as the case may be, 57 and who wishes to accept the offer must sign and return a waiver agreeing—

(a) to abandon any civil proceedings to the extent they are relevant civil proceedings, and

(b) to waive any right to bring relevant civil proceedings.

(2) But an applicant to whom subsection (3) applies may accept an offer of a further sum (made by virtue of section 39(1)(b)) without signing and returning a waiver if the condition in subsection (4) is met.

(3) This subsection applies to an applicant for an individually assessed payment who has previously been paid—

(a) a fixed rate payment under a previous application for one, or

(b) where the application is made by virtue of section 30(3), an individually assessed payment.

(4) The condition referred to in subsection (2) is that no new scheme contributors have been included in the contributor list in the period—

(a) beginning with the effective date of the waiver signed and returned in respect of the fixed rate payment or, where subsection (3)(b) applies, the previous individually assessed payment, and

(b) ending with the date that, but for subsection (2), would be the effective date of a waiver signed and returned in respect of the further sum.

(5) Where an applicant signs and returns a waiver in accordance with subsection (1)—

(a) no relevant civil proceedings may be brought by or on behalf of the applicant,

(b) section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 does not apply in so far as it would entitle any person to recover from the Scottish Ministers or a relevant scheme contributor any contribution towards the payment by that person of any damages or expenses in respect of relevant abuse, and

(c) any other right under any enactment or rule of law to recover any contribution from the Scottish Ministers or a relevant scheme contributor in relation to relevant abuse, and any right of relief or of indemnity against Ministers or a relevant scheme contributor in relation to relevant abuse, ceases to have effect.

(6) For the purposes of this section—

“effective date”, in relation to a waiver in respect of a redress payment, is—in a case where a panel appointed under section 35 determines that the applicant is eligible for a redress payment, the date of that determination,in a case where a panel appointed under section 55 to conduct a review determines that the applicant is eligible for a redress payment, the date of that determination,in a case where a panel appointed under section 75 to reconsider a determination or, as the case may be, a panel appointed to conduct a review under section 76 determines that a person is or remains, eligible for a redress payment, the date on which it should have been determined that the applicant was eligible for a redress payment had the original determination not been materially affected by an error,

“relevant abuse” means—the abuse to which the application relates, andany other abuse of the person in respect of whom the application is made for which the applicant would have been eligible to apply for a redress payment by virtue of section 18,

“relevant civil proceedings” are civil proceedings against the Scottish Ministers or any relevant scheme contributor (whether or not the proceedings are also against another person) in which the applicant seeks compensation or any other remedy in relation to relevant abuse,

“relevant scheme contributor” is a scheme contributor who is included in the contributor list on the effective date of a waiver signed and returned in accordance with subsection (1).

(7) For the purpose of subsection (6), where a scheme contributor is removed from the contributor list with retrospective effect in accordance with section 16, the question of whether the scheme contributor is a relevant scheme contributor on a particular date is to be determined by reference to the contributor list as retrospectively amended.

Form and content of waiver

47

The Scottish Ministers may by regulations make provision about—

(a) the form and content of any waiver to be signed and returned under section 46,

(b) the information to be provided to the applicant in relation to the waiver and its effects.

Report on effect of waiver on participation in redress scheme

48

Before the end of the period of 18 months beginning with the day section 46 comes into force, the Scottish Ministers must lay before the Scottish Parliament a report setting out—

(a) their assessment of—

(i) the impact (if any) of the waiver under section 46 on applications for a redress payment,

(ii) the effectiveness of the waiver in encouraging public authorities, voluntary organisations and other persons to become scheme contributors,

(b) the steps (if any) they intend to take as a result of that assessment,

Payment of redress payment

Period for which offer valid

49

(1) An applicant to whom an offer of a redress payment is made under section 36 may—

(a) bring the application to an end by accepting the offer in accordance with section 50(1), or

(b) request a review of the offer in accordance with section 54.

(2) If neither of the actions specified in subsection (1) is taken within the period for which the offer is valid, the application is to be treated as having been brought to an end by the offer being rejected unless it is continued by virtue of section 66(1).

(3) The period for which the offer is valid is—

(a) the period of 6 months beginning with the date on which the offer was received by the applicant, or

(b) where the panel appointed under section 35 to determine the application is satisfied that there is a good reason why the applicant needs, or may need, longer to consider whether or not to accept the offer, such longer period as the panel determines.

(4) Where an application is treated as having been brought to an end by virtue of subsection (2), the panel previously appointed under section 35 to determine it, or such other panel as the chairing member of Redress Scotland determines, may revive the application if it considers that there are exceptional circumstances which merit it.

(5) Where an application is revived by virtue of subsection (4)—

(a) the offer of a redress payment previously made in relation to it is also revived, and

(b) the period for which the revived offer is valid is such period as the panel determines.

Acceptance of offer and making of payments

50

(1) An offer of a redress payment is accepted—

(a) by the applicant to whom the offer is made signing and returning a waiver to the Scottish Ministers under section 46, or

(b) in a case where section 46(2) applies to the applicant, by the applicant giving the Scottish Ministers notice in writing that the offer is accepted.

(2) Entitlement to a redress payment from the Scottish Ministers arises where—

(a) an offer of a redress payment is accepted in accordance with subsection (1), and

(b) the Scottish Ministers are satisfied that the applicant has abandoned or will abandon any civil proceedings to the extent they are relevant civil proceedings in accordance with the waiver signed and returned under section 46.

(3) A redress payment is to be paid by the Scottish Ministers—

(a) in such instalments as are agreed at the request of, or otherwise with the consent of, the applicant, or

(b) otherwise, as a single payment.

(4) In this section, “relevant civil proceedings” has the meaning given by section 46.

Payments to children

51

(1) This section applies where a panel appointed under section 35 to determine an application for a redress payment or, as the case may be, a review panel appointed under section 55 to conduct a review makes an offer of a redress payment to an applicant who is under the age of 18 years.

(2) The panel may give such directions relating to the payment and management of the redress payment for the benefit of the applicant as it considers appropriate.

(3) A direction under subsection (2) may, in particular, provide that the redress payment—

(a) is to be paid in instalments,

(b) is not to be paid until the applicant reaches the age of 18.

(4) Where a direction under subsection (2) postpones the payment of the whole or part of the redress payment—

(a) Redress Scotland may at any time, at the request of or otherwise with the consent of the applicant, instruct the Scottish Ministers to make earlier payment to the applicant of the whole or part of the redress payment or, as the case may be, any remaining balance of it,

(b) on the applicant reaching the age of 18, the Scottish Ministers must pay the redress payment or, as the case may be, the balance of it (if any) to the applicant in accordance with paragraphs (a) and (b) of section 50(3).

Review of direction made under section 51

52

(1) An applicant who is notified of a direction under section 51(2) relating to the payment and management of a redress payment may request a review of the direction.

(2) A request for a review must—

(a) be made to the Scottish Ministers,

(b) be made before the end of the period of 8 weeks beginning with the date on which notice of the direction was received by the applicant,

(d) specify why a review is being requested, and

(e) contain or be accompanied by any information the applicant considers relevant.

(3) The Scottish Ministers must, as soon as reasonably practicable after receiving a request for a review, provide the request, and any information accompanying it, to Redress Scotland.

(4) A review may be conducted despite the request for it not being made within the period specified in subsection (2)(b) if Redress Scotland is satisfied that the applicant has a good reason for not requesting a review sooner.

(5) The Scottish Ministers must publicise any requirements which are for the time being set under subsection (2)(c).

(6) Sections 55, 56 and 59(1) to (5) apply for the purposes of a review under this section as they apply for the purposes of a review under section 54, subject to the modification that the reference in section 59(1) to a determination being made under section 57 is to be read as a reference to a determination being made under section 53.

Outcome of a section 52 review

53

(1) On a review under section 52, the review panel appointed under section 55 to conduct it—

(a) must consider—

(i) whether the panel which gave the direction under section 51(2) relating to the payment and management of a redress payment ought to have done so,

(ii) in a case where additional evidence is provided to or obtained by the review panel, whether the question of what (if any) direction is given relating to the payment and management of a redress payment ought to be determined differently as a result,

(b) may uphold or reverse the direction.

(2) Once the review panel has conducted the review, Redress Scotland must inform the Scottish Ministers who must, as soon as reasonably practicable—

(a) notify the applicant of the review panel's determination, and

(b) provide the applicant with a summary, provided by Redress Scotland, of the review panel's reasons for reaching that determination.

(3) The determination of the review panel under this section is final.

CHAPTER 2 — Review of redress payment determinations

Right to a review

54

(1) This section applies where—

(a) an applicant has received notification of a determination under section 36, and

(b) where an offer of a redress payment was made under that section, the applicant has not brought the application to an end by accepting the offer.

(2) The applicant may request a review of the determination to the extent that it is a determination that—

(a) the applicant is not eligible for a redress payment under section 37(2),

(b) the applicant is to be offered a particular amount by way of an individually assessed payment, or

(c) a particular amount is to be deducted in accordance with section 42 from the redress payment offered to the applicant (including where the amount to be deducted is such that the redress payment is reduced to zero).

(3) A request for a review must—

(a) be made to the Scottish Ministers,

(b) be made before the end of the period of 8 weeks beginning with the date on which notice of the determination was received by the applicant,

(d) specify why a review is being requested, and

(e) contain or be accompanied by any information the applicant considers relevant.

(4) The Scottish Ministers must, as soon as reasonably practicable after receiving a request for a review, provide the request, and any information accompanying it, to Redress Scotland.

(5) A review may be conducted despite the request for it not being made within the period mentioned in subsection (3)(b) if Redress Scotland is satisfied that the applicant has a good reason for not requesting a review sooner (whether or not the application to which it relates is one which has been brought to an end by virtue of section 49(2)).

(6) The Scottish Ministers must publicise any requirements which are for the time being set under subsection (3)(c).

Review panels

55

(1) A request for a review is to be determined on behalf of Redress Scotland by a panel of members of Redress Scotland appointed by the chairing member in accordance with this section (“a review panel”).

(2) A review panel—

(a) is to consist of at least 3 members,

(b) must not include any member of the panel whose determination is the subject of the request for a review.

Procedure for a review

56

(1) The review panel appointed under section 55 to conduct the review—

(a) may invite oral representations to be made if the panel considers it necessary,

(b) otherwise, is to determine the review on the basis of—

(i) the evidence on which the determination which is the subject of the request for a review was made, and

(ii) any further relevant evidence which is provided to or obtained by the review panel, including any information contained in or accompanying the request for a review and any written representations which are made to the review panel.

(2) The procedure for conducting a review is otherwise to be determined by Redress Scotland.

Outcome of a review

57

(1) On a review, the review panel appointed under section 55 to conduct it must consider—

(a) whether the panel appointed under section 35 to determine the application in question ought to have reached a different determination, and

(b) in a case where additional evidence is provided to or obtained by the review panel, whether the application ought to be determined differently as a result.

(2) The review panel may not—

(a) reverse or vary a determination under section 36 that an applicant is eligible for a redress payment,

(b) determine that an applicant is to be offered a lower amount by way of an individually assessed payment than the applicant was offered under section 36, or

(c) determine that more is to be deducted in accordance with section 42 from the redress payment offered to the applicant than was determined under section 36.

(3) But the review panel may otherwise uphold, reverse or vary any part of the determination (whether the request for a review relates to that part of it or not).

(4) 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, subject to the modification that references to the panel appointed under section 35 to determine the application are to be read as references to the review panel appointed under section 55 to conduct the review.

(5) Once the review panel has conducted the review, Redress Scotland must inform the Scottish Ministers who must, as soon as reasonably practicable—

(a) notify the applicant of the review panel's determination, and

(b) provide the applicant with—

(i) a summary, provided by Redress Scotland, of the review panel's reasons for reaching that determination, and

(ii) where an offer of a redress payment is made (whether by upholding, reversing or varying the determination of the panel appointed under section 35), information about the period for which the offer remains valid under section 58 and the options available to the applicant in respect of it.

(6) The determination of the review panel under this section is final.

(7) In this section, the “application in question” means the application under section 29, the determination of which is the subject of the request for a review.

Period for which offer valid following a review

58

(1) An applicant to whom an offer of a redress payment is made on a review (whether by upholding, reversing or varying the determination of the panel appointed under section 35) may bring the application to an end by accepting the offer in accordance with section 50(1).

(2) If the offer is not so accepted within the period for which the offer is valid, the application is to be treated as having been brought to an end by the offer being rejected unless it is continued by virtue of section 66(1).

(3) The period for which the offer is valid is—

(a) the period of 6 months beginning with the date on which the offer was received by the applicant, or

(b) where the review panel appointed under section 55 to conduct the review is satisfied that there is a good reason why the applicant needs, or may need, longer to consider whether or not to accept the offer, such longer period as the review panel determines.

(4) Where an application is treated as having been brought to an end by virtue of subsection (2), the review panel previously appointed under section 55 to conduct the review in relation to it, or such other panel as the chairing member of Redress Scotland determines, may revive the application if it considers that there are exceptional circumstances which merit it.

(5) Where an application is revived by virtue of subsection (4)—

(a) the offer of a redress payment previously made on a review of the application is also revived, and

(b) the period for which the revived offer is valid is such period as the panel determines.

Withdrawal of review request

59

(1) A request for a review may be withdrawn at the request of the applicant at any time prior to a determination being made under section 57.

(2) A request under subsection (1) must be made in writing to the Scottish Ministers.

(3) The Scottish Ministers must, as soon as reasonably practicable after receiving a request under subsection (1), inform Redress Scotland of it.

(4) Where Redress Scotland is informed of a request made under subsection (1), Redress Scotland must bring to an end any further determination of the review to which the request relates.

(5) Where a request for a review is withdrawn, no further request for a review may be made in respect of the determination to which the request related unless the further request is made for a different reason.

(6) Subsection (7) applies where the withdrawn request relates to the review of a determination where an offer of a redress payment had been made under section 36.

(7) The 6 month period for which the offer remains valid under section 49(3), or any longer period which had been determined under that section prior to the request for a review being made, is to be extended by the number of days in the period—

(a) beginning with the date on which the request for a review was made, and

(b) ending with the date on which the request is withdrawn.

CHAPTER 3 — Applications affected by convictions for serious offences

Applicants etc. with convictions for serious offences

60

(1) This section applies where, at any time before a panel appointed under section 35 to determine an application, or, as the case may be, a review panel appointed under section 55 to conduct a review, does so, a person mentioned in subsection (2) is—

(a) convicted of—

(i) murder,

(ii) rape, or

(iii) a relevant offence for which the person is sentenced to imprisonment for a term of 5 years or more, or

(b) convicted of an equivalent offence and, in the case of an offence equivalent to a relevant offence, is sentenced to imprisonment for a term of 5 years or more.

(2) The person referred to in subsection (1) is—

(a) in the case of an application for a fixed rate payment or an individually assessed payment—

(i) the applicant, or

(ii) where the applicant dies while the application is ongoing, the applicant or the applicant's nominated beneficiary,

(b) in the case of an application for a next of kin payment, the applicant or the person in respect of whom the application is made.

(3) For the purpose of subsection (2)(a)(ii), whether an application is ongoing is to be determined in accordance with section 66(6) and (7).

(4) Before the panel mentioned in subsection (1) determines the application or, as the case may be, the request for a review, it must determine, in accordance with subsection (5), whether or not the applicant or, as the case may be, the nominated beneficiary (“the relevant person”) is precluded from being offered a redress payment.

(5) The relevant person is precluded from being offered a redress payment where the panel, having regard to the matters mentioned in subsection (6), considers that it would be contrary to the public interest to make a redress payment to that person.

(6) The matters referred to in subsection (5) are—

(a) the nature of the offence,

(b) the sentence imposed (and, where the sentence is or includes imprisonment, the term imposed),

(d) any rehabilitation activity undertaken by the person who committed the offence, and

(e) any other matter that the panel considers relevant.

(7) Where the panel mentioned in subsection (1) determines under subsection (4) that a relevant person is precluded from being offered a redress payment, it may also determine whether or not the relevant person would otherwise have been eligible for a redress payment.

(8) Once the panel has determined whether or not the relevant person is precluded from being offered a redress payment and, where applicable, whether or not the person would otherwise have been eligible for such a payment, Redress Scotland must inform the Scottish Ministers who must, as soon as reasonably practicable—

(a) notify the relevant person of the determination, and

(b) provide the relevant person with a summary, provided by Redress Scotland, of the panel's reasons for reaching that determination.

(9) In this section, “equivalent offence” means an offence under the law in force in a country outside the United Kingdom at the time of the offence where the acts or omissions which constitute the offence would, if committed in the United Kingdom, have constituted an offence mentioned in subsection (1)(a).

Applicants etc. with convictions for serious offences: definitions

61

(1) For the purposes of section 60—

“imprisonment” includes detention in a young offenders institution or detention centre, detention in a Borstal institution and penal servitude,

“murder” includes, in relation to murder committed outside Scotland, aiding, abetting, counselling, procuring or inciting murder,

“rape”—means rape—at common law,under section 1 of the Sexual Offences Act 1956,under section 1 of the Sexual Offences Act 2003,of a child under 13 (under section 5 of that Act),by virtue of article 18 of the Criminal Justice (Northern Ireland) Order 2003 (SI 2003/1247 (N.I. 13)),under article 5 of the Sexual Offences (Northern Ireland) Order 2008 (SI 2008/1769 (N.I. 2)),of a child under 13 (under article 12 of that Order),under section 1 of the Sexual Offences (Scotland) Act 2009,of a young child (under section 18 of that Act), andincludes, in relation to rape committed outside Scotland, aiding, abetting, counselling, procuring or inciting rape,

“relevant offence” means—a violent offence, being an offence inferring personal violence other than—murder,rape, ora sexual offence,a sexual offence listed in schedule 3 of the Sexual Offences Act 2003 other than rape (but including attempted rape and conspiracy to commit rape).

(2) The Scottish Ministers may by regulations modify subsection (1) to—

(a) add an offence,

(b) vary the description of an offence,

Review of determination made under section 60

62

(1) A relevant person who is notified of a determination under section 60 that the person is precluded from being offered a redress payment or, as the case may be, that the person would otherwise not have been eligible for such a payment may request a review of the determination.

(2) A request for a review must—

(a) be made to the Scottish Ministers,

(b) be made before the end of the period of 8 weeks beginning with the date on which notice of the determination was received by the relevant person,

(d) specify why a review is being requested, and

(e) contain or be accompanied by any information the person considers relevant.

(3) The Scottish Ministers must, as soon as reasonably practicable after receiving a request for a review, provide the request, and any information accompanying it, to Redress Scotland.

(4) A review may be conducted despite the request for it not being made within the period specified in subsection (2)(b) if Redress Scotland is satisfied that the relevant person has a good reason for not requesting a review sooner.

(5) The Scottish Ministers must publicise any requirements which are for the time being set under subsection (2)(c).

(6) Sections 55, 56 and 59(1) to (5) apply for the purposes of a review under this section as they apply for the purposes of a review under section 54, subject to the modification that the reference in section 59(1) to a determination being made under section 57 is to be read as a reference to a determination being made under section 63.

Outcome of a section 62 review

63

(1) On a review under section 62, the review panel appointed under section 55 to conduct it—

(a) must consider—

(i) whether the panel which determined, under section 60, that the relevant person is precluded from being offered a redress payment, or, as the case may be, would not otherwise have been eligible for a redress payment, ought to have reached a different determination, and

(ii) in a case where additional evidence is provided to or obtained by the review panel, whether the application ought to be determined differently as a result,

(b) may uphold or reverse the determination.

(2) Once the review panel has conducted the review, Redress Scotland must inform the Scottish Ministers who must, as soon as reasonably practicable—

(a) notify the relevant person of the review panel's determination,

(b) provide the person with a summary, provided by Redress Scotland, of the review panel's reasons for reaching that determination.

(3) Where the review panel reverses a determination that the relevant person is precluded from being offered a redress payment, the Scottish Ministers must refer the application or, as the case may be, the request for a review under section 54 to the panel which made the determination under section 60(4), to determine it.

(4) The determination of the review panel under this section is final.

Information about convictions for serious offences

64

(1) An applicant or, as the case may be, an applicant's nominated beneficiary (“a relevant person”) must provide the Scottish Ministers with the information mentioned in subsection (2) in relation to any conviction which is or may be relevant for the purposes of section 60.

(2) The information to be provided in relation to a conviction is—

(a) the nature of the offence,

(b) the sentence imposed (and, where the sentence is or includes imprisonment, the term imposed),

(d) any rehabilitation activity undertaken by the person who committed the offence.

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

PART 1 — Overview and meaning of “redress scheme”

Overview of Act

1

Meaning of “redress scheme”

2

PART 2 — Operation of the redress scheme

Redress Scotland

Establishment

3

Status

4

Membership, procedures and powers etc.

5

Independence

6

Functions in relation to the redress scheme

Functions of Redress Scotland

7

Functions of the Scottish Ministers

8

Duty with respect to ensuring individuals can make informed choices

9

Provision of administrative support to Redress Scotland

10

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

11

Sharing of information between the Scottish Ministers and Redress Scotland

12

Principle of dignity, respect and compassion

13

Contributions to the redress scheme

Scheme contributors

14

Statement of principles in relation to contributor list

15

Retrospective removal of scheme contributor from contributor list

16

Financial contributions by charities

17

PART 3 — Eligibility and key concepts

Eligibility to apply for redress payments

Eligibility to apply for a redress payment

18

Meaning of “abuse”

Meaning of “abuse”

19

Meanings of “relevant care setting” and “resident”

Meaning of “relevant care setting”

20

Meaning of “residential institution”: further provision

21

Meaning of “resident”

22

Exceptions to eligibility

Power to create exceptions to eligibility

23

Eligibility to apply for next of kin payments

Eligibility to apply for a next of kin payment

24

Eligibility to apply for a next of kin payment: exceptional circumstances

25

Review of determination made under section 25

26

Outcome of a section 26 review

27

Meaning of “specified next of kin”

28

PART 4 — Financial redress: redress payments

CHAPTER 1 — Determination of applications for redress payments

Applications

Application for a redress payment

29

Cases where more than one application permitted

30

Application period

31

Pausing of application

32

Withdrawal of application