Publication - Consultation analysis

Financial redress for historical child abuse in care: consultation analysis

Analysis of responses to the pre-legislative consultation on the detailed design of a statutory redress scheme for historical child abuse in care.

177 page PDF

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177 page PDF

1.5 MB

Contents
Financial redress for historical child abuse in care: consultation analysis
9. Making an application (Q27–Q30)

177 page PDF

1.5 MB

9. Making an application (Q27–Q30)

9.1 Part 1.4 of the consultation paper focused on the process of making an application for a redress payment, looking specifically at the period for which the scheme would be open for applications; assistance for survivors in obtaining documentary records; and the need for independent legal advice. There were four questions seeking views on options and proposals relating to these issues, as follows:

Question 27: We are proposing that the redress scheme will be open for applications for a period of five years. Do you agree this is a reasonable timescale? [Yes / No] Please explain your answer.

Question 28: Should provision be made by the redress scheme administrators to assist survivors obtain documentary records required for the application process? [Yes / No] Please explain your answer.

Question 29: In your view, which parts of the redress process might require independent legal advice? Please tick all that apply.

  • In making the decision to apply
  • During the application process
  • At the point of accepting a redress payment and signing a waiver

Question 30: How do you think the costs of independent legal advice could best be managed?

Four-fifths of respondents (79%) agreed the redress scheme should be open for five years, with individuals somewhat more likely than organisations to agree with this. Most often, respondents said that this time period was sufficient to allow individuals to learn about the scheme and submit a claim (with the caveat that the scheme was adequately promoted). Some also said that five years would be helpful to victims / survivors in bringing ‘closure’ within a reasonable time period, and to care providers and other relevant bodies in giving ‘certainty’ with regard to potential future liabilities. Those who disagreed thought the five-year period risked excluding eligible people and said that a longer (or open-ended) scheme would better meet the needs of victims / survivors.Key points

  • There was strong support among both individuals (97%) and organisations (93%) for the scheme administrators to make provision to assist victims / survivors to obtain documentary records. Respondents thought this was important because of the challenges – emotional, practical, and resource and capacity-related – this task would present for victims / survivors. However, some said the application process should be simple enough not to need assistance, and others had concerns about the cost and time implications of providing assistance. There was a mix of views on whether assistance should be provided by the scheme itself or by a separate third party, and the type and extent of any assistance that should be offered.
  • In terms of the need for independent legal advice, nine-tenths of respondents (90%) thought this might be required at the point of accepting a redress payment and signing a waiver; while around a third thought that it might be required in making the decision to apply to the scheme (36%) and during the application process (32%). Organisations were more likely than individuals to think that such advice might be needed at different stages of the redress process. Respondents said that it was important that victims / survivors understood the implications of different actions at different stages, in what would be a potentially daunting process.
  • There was support for various permutations of both set fees and capped fees, with a range of other possible ways of managing fees also mentioned (e.g. the establishment of a ‘approved list’ of lawyers, the use of in-house legal advisers). There was a mix of views on how legal advice should be funded (by the public purse, by care providers, by the redress scheme) and, although respondents mainly thought that legal advice should be provided to victims / survivors at no cost, there were also a number of suggestions as to how they might pay for or make a contribution to such costs.

Time period for making an application to the redress scheme (Q27)

9.2 Question 27 addressed the time period for which the redress scheme would be open for applications. The Scottish Government proposed that the scheme be open for five years and the consultation paper invited views on this.

9.3 Table 9.1 shows that around four-fifths of all respondents (79%) agreed with the proposed time period, with individuals somewhat more likely than organisations to agree (81% vs 68% respectively). Third sector organisations were the only type of respondent to indicate majority disagreement with the proposal (6 out of 8 disagreed).

Table 9.1: Q27 – We are proposing that the redress scheme will be open for applications for a period of five years. Do you agree this is a reasonable timescale?
Respondent type Yes No Total
n % n % n %
Local authority / public sector partnerships 11 85% 2 15% 13 100%
Other public sector organisations 3 100% 0% 3 100%
Current or previous care providers 7 88% 1 13% 8 100%
Third sector, including survivor groups 2 25% 6 75% 8 100%
Legal sector organisations 3 50% 3 50% 6 100%
Other organisational respondents 2 67% 1 33% 3 100%
Total organisations 28 68% 13 32% 41 100%
Individual respondents 171 81% 40 19% 211 100%
Total (organisations and individuals) 199 79% 53 21% 252 100%

Two individuals ticked both ‘yes’ and ‘no’ to this question and one individual wrote ‘unsure’ on their questionnaire. These responses are not included in the table above.

Percentages may not total 100% due to rounding.

9.4 Altogether, 178 respondents (137 individuals and 41 organisations) made comments at Question 27 explaining their views or offering other comments on the period the redress scheme should be open for applications. The sections below present the comments of those who agreed with the timescale and those who disagreed. Those who did not give a clear indication of support for or opposition to the five-year period, or who offered mixed views, raised similar points to other respondents and their comments are not, therefore, discussed separately.

9.5 Note that it appeared that some respondents (especially individuals) may not have fully understood the proposal, with their comments suggesting they thought the five-year period referred to a ‘time bar’ (i.e. a maximum time elapsed since the abuse occurred for a claim to be valid) or the time it would take for applications to be processed and payments made. Among organisations, there was also a suggestion that it was important to distinguish between the period for making applications and the period for processing applications. This possible misunderstanding was apparent in the comments of both those who answered ‘yes’ and ‘no’ to Question 27.

Agreement that the scheme should be open for five years

9.6 Respondents who answered ‘yes’ at Question 27 often described the proposal as ‘adequate’, ‘sufficient’, ‘reasonable’, or ‘appropriate’ without explaining their views further. In a few cases, respondents (individuals in particular) described the proposed time period as ‘more than enough’ ‘very generous’ or ‘plenty’. Those who gave fuller comments offered two main views:

  • Most commonly, respondents said that a five-year time period was sufficient to allow victims to learn about the scheme, gather the required information and submit an application. In offering this view, some recognised that there could be barriers for victims in submitting an application – both emotional and practical – but thought the proposed five-year period was sufficient to allow for that.
  • Less often, respondents suggested that the five-year time period would be helpful to victims in bringing ‘closure’ within a reasonable time period, and to care providers and other relevant institutions in providing ‘certainty’ with regard to potential future liabilities. This latter point was raised by organisations in particular.

9.7 Respondents nevertheless offered a number of different caveats and qualifications to their support for the five-year time period. The two most common points, usually put forward by organisations, were as follows:

  • The scheme would need to be actively promoted, with appropriate support provided to potential applicants, to ensure those eligible were aware of the opportunity for redress and able to make an application before the deadline. In this regard, there was a suggestion that applications should be allowed within five years of an individual learning about the scheme. (Note, however, that there was also a view that current publicity around historical child abuse means that awareness of a possible redress scheme is already high.)
  • Provision should be made to review the time period and extend it if necessary or, alternatively, to allow flexibility beyond the official closing date on a discretionary basis.

9.8 Very occasionally, respondents suggested that (i) other (non-financial) redress measures should continue beyond this point, (ii) consideration would need to be given to the handling of complex or difficult cases within the time period (possibly suggesting that some respondents thought that cases would have to be completed rather than simply initiated within the five year period), and (iii) once submitted, applications should be processed quickly and efficiently.

Disagreement that the scheme should be open for five years

9.9 With few exceptions, those who disagreed at Question 27 thought that five years was too short a period for the scheme to be open. In some cases, respondents simply said that five years was not long enough or that the scheme should be open-ended, but did not explain their views further.

9.10 Others suggested that the proposed time period did not take sufficient account of the experience and needs of abuse victims. They referred to the time it can take to come to terms with being a victim of abuse, and the courage and confidence needed to initiate a claim. The practicalities of ensuring that potential claimants, wherever they lived, were aware of the scheme was also cited as an issue. Some respondents also referred to the time it might take for victims to gather the necessary evidence to support a claim. Overall, these respondents thought the five-year period was inadequate and risked excluding eligible victims – some said that any deadline for applications was ‘wrong’ in principle (particularly as the 2017 Act had removed the normal three-year time bar for those seeking legal redress for childhood abuse) and would undermine the integrity of the scheme, or could lead to those who missed the deadline pursuing claims through the courts.

9.11 Although some suggested specific alternative time periods for the scheme to be open for applications (e.g. five to ten years, ten years), it was more common for respondents to call for an open-ended or permanent scheme.

9.12 Very occasionally, respondents thought the five-year time period was too long, although comments suggested that, in some cases, this was linked to a misunderstanding about the nature or purpose of the time limit. One organisational respondent suggested that three years would be more in line with the standard time bar period in damages cases.

Assistance obtaining documentary records (Q28)

9.13 The consultation paper noted that the 2017 survivor consultation had highlighted that people may need different types of help during the application process – including practical help in completing the application form or obtaining records. Question 28 asked respondents if the redress scheme administrators should make provision to assist survivors to obtain documentary records for the application process. The consultation paper did not, however, expand on the type of assistance that might be provided or how it might be delivered.

9.14 Table 9.2 shows that there was strong support for this suggestion, among both among organisations (93%) and individuals (97%).

Table 9.2: Q28 – Should provision be made by the redress scheme administrators to assist survivors obtain documentary records required for the application process?
Respondent type Yes No Total
n % n % n %
Local authority / public sector partnerships 13 100% 0% 13 100%
Other public sector organisations 4 100% 0% 4 100%
Current or previous care providers 7 78% 2 22% 9 100%
Third sector, including survivor groups 8 89% 1 11% 9 100%
Legal sector organisations 6 100% 0% 6 100%
Other organisational respondents 3 100% 0% 3 100%
Total organisations 41 93% 3 7% 44 100%
Individual respondents 208 97% 7 3% 215 100%
Total (organisations and individuals) 249 96% 10 4% 259 100%

9.15 Altogether, 185 respondents (145 individuals and 40 organisations) provided additional comment at Question 28.

9.16 Although Table 9.2 indicates widespread agreement that survivors should be given assistance with the application process, there was a mix of views about who should provide assistance, the type of assistance that should be provided, and what applicants should get assistance with, as discussed in the sections below. Comments also indicated various interpretations of ‘assistance’ and ‘provision of assistance’ (with some saying they were unsure how to interpret this). It should also be noted that there was a degree of overlap between the comments of those answering ‘yes’ and those answering ’no’. As such, the analysis below does not consider the views of those who answered ‘yes’ and ‘no’ separately but looks across all responses to present views on assistance for survivors making applications.

The need for assistance for survivors

9.17 As noted above there was broad agreement that survivors should get assistance with obtaining relevant documentary records, as well as with other aspects of making an application. Respondents gave a number of interlinked reasons for this, highlighting:

  • The distress and emotional upheaval that the application process might cause for survivors
  • The inherent difficulties and daunting nature of navigating a complex and unfamiliar system – particularly given the time that had elapsed in many of the cases, the loss or destruction of records in the intervening years, and the fact that care providers or individual institutions may no longer exist – with respondents often recounting their own experiences of trying to secure documents
  • The barriers faced by some in terms of (a lack of) literacy and IT skills, health issues – mental, physical and age-related – learning disabilities and the fact that individuals may no longer live close to where the abuse took place, and may, in some cases, have moved away from Scotland, or even the UK
  • The limited resources available to some survivors to allow them to pursue records in terms of time and money, computer and internet access, and assistance from family and friends.

9.18 For these reasons, respondents said that providing assistance was ‘fair’, ‘just’ or ‘correct’.

9.19 However, there were two alternative points occasionally made by respondents who:

  • Argued that the application process should be simple enough not to need assistance (or should be as easy as possible for those making claims)
  • Cautioned about the cost and time implications of providing assistance.

Who should provide assistance

9.20 As noted above, Question 28 asked whether the redress scheme should make provision to assist survivors. However, the specifics of who might directly provide such assistance was commented on by some respondents, particularly those who answered ‘no’ at the initial tick-box question, with a range of views offered on this.

9.21 Most commonly, respondents referred to assistance being provided by the scheme, or the scheme administrators, or a case worker acting on behalf of the claimant. However, there was an alternative view that support should not be provided (solely or at all) by the scheme or scheme administrators. Instead respondents thought that trusted third parties with relevant knowledge and skills should provide assistance and be funded by the Scottish Government to do so. Some were concerned about a potential ‘blurring of boundaries’ if assistance was provided by the redress scheme, while others talked of the importance of independent advice and choice for survivors.

9.22 GPs, social workers, support workers, and third sector agencies were all mentioned, as were organisations such as Future Pathways and Birthlink. It was noted that the latter two organisations, in particular, already had a focus in this area of work, and survivors may have existing contact with them. A bespoke organisation was also suggested.

9.23 In a few cases, respondents saw a role for central or local government, and the point was made that local authorities were already assisting claimants in finding records. It was suggested that additional funding that recognised this task would free up resources for other forms of support work, while also developing local skills and capacity in relation to data retrieval.

The types of assistance that should be provided

9.24 Question 28 specifically asked about provision to assist with obtaining documentary records, and respondents generally endorsed this. However, in some cases, they also suggested that assistance might be required with other tasks such as written communication and the completion of application forms, and the preparation of evidence, or that individuals might also need more general guidance, emotional support, counselling, advocacy, or legal advice.

9.25 Additionally, some respondents commented on the extent of any assistance that might be provided, with two contrasting views offered. On the one hand, some said that survivors should be given all necessary help and support. For example, there were suggestions that ‘assistance’ should extend to administrators (or other professionals) undertaking the recovery of documents on behalf of individual claimants as they would have the necessary knowledge, skills, resources and ‘clout’ to allow them to do this efficiently and effectively. On the other hand, some said that survivors themselves were best placed to pursue any information required for their application and that scheme assistance should be limited to providing information to allow this to happen, or signposting to appropriate bodies and agencies.

Legal advice (Q29–Q30)

9.26 The consultation paper included two questions on whether scheme applicants might need legal advice and how the cost of any such advice or representation might be met. The Scottish Government proposed that, as a minimum, independent legal advice should be available at the point of accepting a redress payment if this were to require the signing of a waiver, and stated that all options for delivering this provision, including that of funding via Legal Aid, would be considered.

Where the redress process might require independent legal advice (Q29)

9.27 Question 29 asked respondents for their views on the points in the redress process at which applicants might require independent legal advice. Three options were given: (i) in making the decision to apply, (ii) during the application process, and (iii) at the point of accepting a redress payment and signing a waiver. This was a closed question and respondents could tick more than one response.

9.28 Table 9.3 shows that nine out of ten respondents (90%) thought that independent legal advice might be needed at the point of accepting a redress payment and signing a waiver – this view was shared by 98% of organisations and 88% of individuals. Around a third of all respondents thought that legal advice might be required in making the decision to apply to the redress scheme (36%) and during the application process (32%). With regard to both of these points in the process, organisations were more likely than individuals to think that legal advice might be required. In particular, just over half of organisations (53%) thought that independent legal advice might also be needed in making the decision to apply to the scheme, compared with a third of individuals (33%).

Table 9.3: Q29 – In your view, which parts of the redress process might require independent legal advice? (Tick all that apply.)
Respondent type Organisations Individuals Total
n % n % n %
In making the decision to apply 21 53% 68 33% 89 36%
During the application process 16 40% 62 30% 78 32%
At the point of accepting a redress payment and signing a waiver 39 98% 182 88% 221 90%
Base (total answering Q29) 40 206 246

9.29 There was no follow-up question asking respondents to explain their answer at Question 29. However, some respondents (around twenty) added comments to their tick-box response, or included comments at Question 30 on the need for legal advice at different stages of the application process. Organisational respondents (legal bodies in particular) were more likely than individuals to do so. A range of comments were offered, as summarised below – note that all of these were raised by a few respondents only:

  • Independent legal advice would ensure survivors understood the implications of different actions at different stages of the process (e.g. in making an application, obtaining additional information in support of a claim and in responding to a payment offer) and were able to make informed decisions.
  • Legal advice was important because of the daunting nature of the process, and the varying vulnerabilities, capabilities and circumstances of individual claimants.
  • Giving claimants access to legal advice could benefit the scheme in the long term, by ensuring that claims are only made by those who are eligible, and that cases are dealt with efficiently and effectively by those with relevant expertise.
  • The need for legal advice would be minimised by clear guidance for claimants, straightforward and non-adversarial procedures, and active case management – however, the option of referring cases involving complex points of law to the courts was also suggested.
  • Support workers, advocacy workers or other advice workers might have a role in assisting claimants.
  • Those involved in providing legal advice to claimants should be specially trained in dealing with survivors.

9.30 Additionally, some expressed concerns about how legal costs would be managed and funded – these points are explored further in relation to Question 30, below.

Managing the costs of independent legal advice (Q30)

9.31 Question 30 asked respondents how they thought the costs of legal advice could best be managed, and referred specifically to two options: (i) a set payment per application or (ii) a payment that takes account of the time spent on an application capped at a certain level. This was a single-part open question (i.e. there was no preceding tick-box question), with 222 respondents (183 individuals and 39 organisations) making comments. Respondents offered a range of views on how costs for legal advice might be best managed, but also often commented on how this should be funded, and both of these issues are discussed below. It should be noted that a relatively high proportion of individuals (around 15% of those commenting) said they did not know, were not sure, did not understand or did not know enough to comment.

9.32 Respondents indicated a number of different motivations and rationales for the comments they offered at this question, suggesting that they wanted to ensure that:

  • Lawyers do not profit from the scheme, and are not incentivised to spend more time than necessary on cases
  • Those responsible – directly or indirectly – for historical child abuse are made liable for legal costs, and / or
  • Survivors have access to free advice or are protected from high or unexpected costs.

How the costs of legal advice might be managed

9.33 The responses to Question 30 indicated a general endorsement of the need to manage legal costs. There was support for both set fees and capped fees – the two mechanisms specifically mentioned in the consultation paper – although some qualified their support by suggesting, for example, different arrangements for different stages of the scheme, or fixed or capped fees with an option for claimants to pay additional fees beyond that. However, a range of other mechanisms for managing costs were also suggested, sometimes in combination. These included the following:

  • The establishment of a list of approved or registered lawyers working for agreed fees
  • Clear parameters for the work that would be funded at particular points in the process
  • Agreement between the Scottish Government and the Law Society of Scotland or relevant law firms of an appropriate system
  • Fees calculated as a percentage of the final redress payment awarded
  • A system involving approval of costs on a case-by-case basis – for example, like that in place for the SCAI (whereby applications for legal expenses are submitted to the inquiry and adjudicated on by the inquiry chair)
  • The use of lawyers offering services on a pro-bono basis
  • The use of legal advisers employed directly by the redress scheme.

9.34 However, it should be noted that comments from respondents indicated varying interpretations of how capped or fixed fees might operate – for example, would the fee itself be fixed or capped, or would the sum funded by the scheme (or some other agency) be fixed or capped, with applicants potentially liable for any additional spend? Some referred to survivors agreeing capped or fixed fees on an individual basis.

9.35 Finally, it was suggested that redress / compensation schemes already in place in the UK and elsewhere and SCAI procedures could provide pointers on this issue.

How legal costs might be funded

9.36 Respondents also discussed how legal costs might be funded. Legal aid was the most frequently mentioned option (and was referred to in the question itself), although respondents also mentioned a range of other funding options and arrangements. The main comments made regarding each suggestion are summarised below.

  • The public purse: Respondents commonly said that legal expenses should be publicly funded, either via legal aid, or covered by ‘the government’ or ‘taxation’. However, there was a mix of views about whether legal expenses should be fully funded or means tested (as is the case with publicly funded legal aid), or should involve claimant contributions on some other basis (e.g. proportionate to the final payment). Some referred specifically to using the current public legal aid scheme, or a variation on this. However, in other cases it was not always clear if respondents were using the term ‘legal aid’ in a generic sense, or were referring specifically to legal aid as currently provided by Scottish Legal Aid Board (SLAB).
  • Care providers and other implicated organisations and individuals: Some argued that those responsible or in some way complicit in the abuse should pay the legal costs of survivors. Comments were made about individual as well as organisational liability, although the difficulty of recovering costs from individuals was noted. It was also suggested that legal costs could or should be met initially from public funds with steps then taken to recover money from responsible parties. (The issue of organisational contributions to the redress scheme is covered in Chapter 11.)
  • The redress scheme: Some respondents thought the redress scheme should cover the cost of legal advice, either by paying for it directly or by adding a sum to individual redress payments in respect of legal costs.

9.37 Some respondents explicitly referred to the role of survivors in paying legal costs. Most commonly, respondents thought that legal advice should be provided to survivors at no cost; however, there was an alternative view that survivors should pay legal costs, or a contribution to such costs (see also the points noted at paragraph 9.36 – bullets 1 and 3). In some cases, respondents suggested systems whereby a survivor would be liable for any legal advice and assistance beyond that covered as standard by legal aid, the redress scheme or some other fund, or should be required to pay a contribution based on a percentage of their final award.


Contact

Email: redress@gov.scot