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Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 and relevant secondary legislation: fairer Scotland duty assessment

Fairer Scotland Duty Assessment (FSD) for the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 and relevant secondary legislation.

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Stage 2 – Evidence

6. What does the evidence suggest about existing inequalities of outcome, caused by socio-economic disadvantage, in this specific policy area?

There are limits to accurate figures on numbers of eligible applicants - both numbers of those in care during the period covered by the scheme and of those who experienced abuse in care. The historical lack of consistency in the keeping of records and recording of statistics, as well as the subsequent loss of records and data contribute to that uncertainty. Secrecy, shame and other psychological barriers often result in disclosures of abuse taking years, if at all, to disclose.

How early abuse and neglect might influence later socio-economic outcomes is also complex. The range of experiences of being in care including abuse and neglect is equally complex as is how these early experiences influence later socio-economic outcomes. There is however, no doubt that many of the applicants for redress by the very nature of their experiences will have encountered disadvantage in their adult lives. The impact of abuse can be lifelong and occur across all areas, including economic disadvantage.[2]

Adult survivors of abuse in care are not a homogenous group, they can be of any age, reflect the influence of changes in welfare over decades and demonstrate how childhood experiences, including abuse, can impact on later outcomes in a range of different individual ways. Research suggests that children often experience more than one type of abuse and may experience a number of disadvantages. Although not all, many children in recent years came into care settings due to care and protection concerns and poverty, particularly decades ago, was a distinct factor. We also know that bereavement and loss can be a key issue and that children with disabilities are particularly vulnerable to abuse.

Recent research indicates that child maltreatment can influence educational attainment, mental and physical health problems and difficulties in adult relationships – all of which are noted as key factors that might influence 'negative financial outcomes'. There is suggestion that the relationship between influencing factors and poverty can be circular – poverty increases poor mental health and mental health increases the likelihood of poverty.[3] Young people in care are significantly more likely to have mental health difficulties than their non-care experienced peers.[4]

We know from the data gathered in the 2019 Care Review[5] that care experienced adults are over one and a half times more likely to experience severe multiple disadvantage (e.g. homelessness, substance misuse, mental health, offending). We can also see that on average they earn three quarters of the salary of their peers. Within Scotland, children living in the top 10% of most deprived areas in Scotland are 20 times more likely to spend time in care than those in the top 10% of least deprived areas.

It was concluded in the Scottish Prison Service "Prisoner's Survey 2015 – Young People in Custody" that a third of young offenders had been in care at some point in their life.[6]

Future Pathways, Scotland's national support service for survivors of abuse in care analysed the postcodes provided by 1,214 people registered in Scotland to identify their SIMD (Scottish Index of Multiple Deprivation) ranking and found that those registered were more likely to live in areas of deprivation. Material support was noted to continue to be a significant aspect of support, perhaps suggesting the impact of income.[7] Registered users also accessed education or training, suggesting that for adults who have experienced abuse in care material and practical support can be required to support them working to influence their own outcomes.

Recent years have seen an increased focus on improving educational outcomes for looked after children. This underlines not only the income and employment opportunities that can follow a good education but a better understanding of the social, emotional and attachment needs of children. The independent Scottish Child Abuse Inquiry has noted the concerns from some survivors about their inadequate education and the emotional barriers to learning that they experienced while in care.

From this evidence we can see that it is likely that a number of people affected by our scheme will be also be affected by socio-economic inequalities. We have taken this into account when developing the elements of the redress scheme and the processes involved.

7. What does the evidence suggest about any possible impacts of the policy/programme/decision, as currently planned, on those inequalities of outcome?

A financial payment from the redress scheme will not fully address individual need or indeed inequality. We have had anecdotal feedback from some Advance Payment Scheme applicants that a financial payment has at times offered a material choice or opportunity that otherwise was not available. The emphasis from applicants is however always on meaningful non-financial outcomes such as receiving acknowledgement and recognition of the abuse suffered.

Following engagement with DWP, HMRC, DHSC, Northern Irish social security colleagues and relevant SG colleagues, we have secured agreement for the necessary disregards to make sure that payments made under the redress scheme will not negatively impact an applicant's benefits, tax and social care entitlement. The legislation relating to means-tested benefits delivered by DWP came into force 1 January 2022.[8] Other English, Welsh and Northern Irish disregards will be laid and come in to force by 1 April 2022 and agreement has been received from the relevant authorities to disregard the payments until the required legislation is in force.

We will offer to pay for independent legal advice, which is reasonably incurred, for all applicants. Legal work reasonably undertaken in making an application for redress on behalf of all applicants will be paid up to a fixed fee. An additional sum, in excess of the fixed fee, may also be paid if Redress Scotland are satisfied that there are exceptional or unexpected circumstances which justify it. While not mandatory for applicants, independent legal advice will help to ensure that applicants are provided with as much support as possible to ease their journey through the application process. The payment of legal fees will not be means tested, ensuring all applicants have equal access to independent legal advice regardless of their socioeconomic status. The scheme will also pay for other costs and expenses reasonably incurred by a person in connection with an application to the redress scheme. Details on the types of costs and limits are set out in sections 92 and 93 of the Act as well as in the Redress for Survivors (Historical Child Abuse in Care) (Payment of Legal Fees) (Scotland) Regulations 2021[9] and the Redress for Survivors (Historical Child Abuse in Care)(Reconsideration and Review of Determinations) (Scotland) Regulations 2022.[10]

We will offer the opportunity to access non-financial redress to eligible survivors who apply to the scheme. This includes access to therapeutic support. We will also offer support to all applicants throughout the application process, including signposting to financial advice where relevant.

The Adults With Incapacity (Scotland) Act 2000[11] provides a framework for safeguarding the welfare and managing the finances of adults (people aged 16 or over) who lack capacity due to mental illness, learning disability, dementia or a related condition, or an inability to communicate. For individuals that meet this criteria, welfare guardianship, financial guardianship and power of attorney can be in place. We have continued to engage with the Mental Welfare Commission, Office of the Public Guardian and other groups to consider what this means for applicants applying, particularly ensuring their rights and understanding through the process.

Section 51 of the Act ensures that children (18 years or under) can receive their payment whilst protecting their best interests, by allowing the panel to authorise payments in alternative ways, including, if deemed appropriate, whole or part payment, or in instalments, in advance of turning 18 years of age.

We will continue to engage with organisations which work with vulnerable adults, with a view to providing suitable support and safeguards for vulnerable applicants (and not just those who are specifically captured by incapacity related legislation). We will deal with these issues operationally by developing guidelines for staff to ensure that any concerns over the exploitation of an applicant can be addressed in an appropriate and proportionate manner.

8. Is there any evidence that suggests alternative approaches to the policy/programme/decision? E.g. Evidence from around the UK? International evidence?

There are redress schemes with similar scope and eligibility requirements in other parts of the world, which we have analysed to inform our own scheme provision.[12] Some examples are set out below:

Scheme: Tasmania, Australia

Support offered: Applicants had access to counselling services from initial contact, but this was discontinued if the claim was disallowed (50 per cent uptake)

Assistance was available via a helpline for accessing records and completing the application

Applicants were given advice on options for legal action, plus funding for one legal consultation; legal costs of up to $300 were covered (round 3 and 4)

Medical and other expenses incurred in relation to the claim were covered

Hearings: face-to-face interviews held in informal settings, with choice of male or female interviewer

Scheme: Queensland, Australia

Support offered: Applicants had access to counselling services

Practical assistance was available from government-funded support services for submitting an application

Applicants were able to apply to The Forde Foundation for a range of support and benefits

Applicants were required to seek legal advice (funded by the scheme); legal costs up to $500 were available – applicants were provided with a list of personal injury lawyers who would act for a set fee of $500

Hearings: intended as non-adversarial process

Scheme: Grandview, Canada

Support offered: Applicants had access to therapy or counselling; there was a helpline, plus additional support such as tattoo or scar removal or reduction for all former residents

Legal expenses of applicants pursuing individual claims were covered (but capped)

Hearing: hearings were held in various locations, and were intended to be informal and non-confrontational

Scheme: Jersey

Support offered: Reasonable legal fees, medical expenses and other application-related costs were covered

Scheme: Ireland

Support offered: Applicant had access to counselling and support (via Towards Healing)

Applicant could seek assistance from the Board in making an application

Reasonable legal and other costs and expenses incurred when applying for the scheme were covered by the scheme

Hearings: could be held in various locations

Scheme: Lambeth Council, UK

Support offered: Applicants can ask a solicitor to make an application on their behalf but legal representation is not mandatory

An applicant must choose their own legal representation

The scheme will pay some of the legal costs, with the amount paid depending on the type of application made.

The Council provides confidential advice and assistance to support applicants who wish to obtain advice relating to housing options, appropriate welfare benefits, accessing further educational qualifications and suitable employment.

Signpost solicitors and provide support services for the applicant

Scheme: Northern Ireland, UK

Support offered: The redress scheme recommends that applicants should contact a solicitor for independent legal advice with regards to eligibility and assistance in making an application

It provides a link to the Law Society website in respect of finding a solicitor

Legal expenses covered but capped.

Hearings: The process is non-adversarial. The oral hearing will be as informal as the panel considers appropriate.

Survivors can seek support and advice from the office of the Interim Advocate or Statutory Commissioner for Survivors of Institutional Childhood Abuse (when appointed).

The Commissioner for Survivors of Institutional Childhood Abuse will promote the interests of survivors.

The Commissioner will encourage the provision and coordination of the provision of relevant services to survivors:

  • To improve a person's physical or mental health
  • To help a person to overcome an addiction
  • To provide a person with counselling
  • To improve a person's literacy or numeracy
  • To provide a person with other education or training
  • To enable a person to access opportunities for work.

The Commissioner will provide or secure the provision of advice and information to survivors on the relevant services available to them and the facilities that are available for the provision of those services and how to obtain and access them

9. What key evidence gaps are there? Is it possible to collect new evidence quickly in areas where we don't currently have any? For example, through consultation meetings, focus groups or surveys?

We have worked with the Government Actuary's Department to refine our data and improve our understanding of how many survivors there may be, and how many may apply to the scheme.

We are continuing to engage with survivor support organisations including Future Pathways, consultant psychologists specialising in early trauma and the National Confidential Forum to better understand emotional and psychological support should be offered to survivors. We are also engaging with academics and the Scottish Legal Aid Board to ensure we offer a meaningful opportunity for applicants to obtain legal and financial advice.

In total, 280 responses to the pre-legislative consultation were received. 18% were from organisations including the Scottish Human Rights Commission, local authorities, and care providers past and present. We have continued to engage with such organisations throughout the process to ensure that we are as inclusive and accessible as possible. The majority of our consultation responses came from those who identify as survivors (over 200 responses). The responses to the public consultation and the independent analytical report of this have been published and continue to inform policy decisions on the design of the redress scheme.

A formal consultation on the secondary legislation was not carried out and instead stakeholder views were obtained through a targeted engagement exercise with survivor organisations, representatives of the legal profession, care providers and others. A formal consultation was not considered appropriate given: previous consultations on the scheme, the significant scrutiny and evidence submitted on the waiver during parliamentary passage, the technical nature of the Regulations, and the timescales for delivery. We will continue to draw on what survivors have said and utilise ongoing engagement with survivors and survivor representatives in the delivery of the scheme.

10. How could you involve communities of interest (including those with lived experience of poverty and disadvantage) in the process? The voices of people and communities are likely to be important in identifying any potential improvements to the programme/policy/decision.

We have been working with external organisations to gather views on our scheme including survivor groups, support groups, psychologists with relevant expertise in early trauma, potential scheme contributors, and the third sector. We have also been engaging with internal stakeholders including officials within Survivor Support and Health.

Within our 2019 consultation, 82% of responses were from individuals, of whom around nine out of ten identified as a survivor of abuse in care. They highlighted a range of views and ideas about the scheme, non-financial elements and factors to consider through design and delivery. We have strived to engage and reach traditionally hard to reach groups, employing a strategy to reach out to the existing networks and communities who may have relationships with these groups and be able to support survivors to share their views in the consultation.

Our policy team has engaged with Homeless Action Scotland who also submitted a response to the consultation. This highlighted the potential barriers homeless people may face when applying to the scheme and receiving a payment. To address this we have engaged with a number of organisations around Scotland at a network hosted by Cyrenians and have committed to working with them as we design the implementation of the scheme to ensure we take account of the additional barriers faced by the homeless population.

Given the possible disadvantages and impact of abuse in care outlined in the evidence section, we recognise that there may be a number of barriers for applicants. We also know that particular relevant care settings, for example long stay hospitals, demand a considered focus on awareness raising and accessibility. We have initiated engagement with relevant organisations such as Deaf Scotland and People First Scotland.

The Scottish Government are members of the Review Group, (a group chaired by the Scottish Human Rights Commission) which brings together stakeholders with an interest in redress including survivors of abuse, representatives of provider organisations, Scottish Government, CELCIS and the Scottish Human Rights Commission.

It is a statutory requirement under section 102 of the Act that the Scottish Ministers must establish and maintain a Survivor Forum where survivors can continue to feed back their thoughts on the operation of the scheme and survivors' experiences in practice. This will help us monitor, assess and improve the survivor experience of the scheme, ensuring it is fit for purpose.

Contact

Email: redress@gov.scot

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