11. Contributions to the redress scheme (Q35–Q44)
11.1 The consultation paper set out the Scottish Government’s view that those bearing responsibility for the abuse of children in care in the past should contribute to the redress scheme. Two funding models from Ireland and Australia were described, together with the problems encountered in using these models. Respondents were asked a series of questions about (i) the principle of institutions / providers making financial contributions, and (ii) how this might work in practice.
Question 35: We think those bearing responsibility for the abuse should be expected to provide financial contributions to the costs of redress. Do you agree? [Yes / No] Please explain your answer.
Question 36: Please tell us about how you think contributions by those responsible should work. Should those responsible make:
- An upfront contribution to the scheme [Yes / No]
- A contribution based on the number of applicants who come forward from their institution or service [Yes / No]
- Another approach to making a financial contribution to the redress scheme costs? [Yes / No]
Question 37: Are there any barriers to providing contributions, and if so how might these be overcome?
Question 38: Should the impact of making financial contributions on current services be taken into account? [Yes / No]. If so how?
Question 39: What other impacts might there be and how could those be addressed?
Question 40: How should circumstances where a responsible organisation no longer exists in the form it did at the time of the abuse, or where an organisation has no assets, be treated?
Question 41: What is fair and meaningful contribution from those bearing responsibility for the abuse?
Question 42: What would be the most effective way of encouraging those responsible to make fair and meaningful contributions to the scheme?
Question 43: Should there be consequences for those responsible who do not make a fair and meaningful financial contribution? [Yes / No] If yes, what might these be?
Question 44: In addition to their financial contributions to the redress scheme, what other contributions should those responsible for abuse make to wider reparations?
There was general agreement (94% overall; 95% for individuals and 89% for organisations) that organisations bearing responsibility for historical child abuse should contribute financially to the redress scheme as a way of ‘taking responsibility’ for past wrongs and acknowledging failings in their duty of care.
- Organisations (particularly care providers) thought financial contributions should be ‘proportionate’ and ‘fair’ – that is, they (i) should be based on cases for which institutions had responsibility, and (ii) should not adversely affect the ongoing work of care providers.
- There was no clear consensus about how financial contributions should be made. However, the largest proportion of respondents (56% overall) favoured contributions based on the number of applicants who come forward from a particular institution or service. There was a similar level of support (from 52% of respondents overall) for upfront contributions. However, organisations were much less likely than individuals to favour upfront contributions, and more likely to favour ‘another approach’, which could involve, for example, payments being made by the Scottish Government, then reimbursed by institutions once the actual costs are known.
- There were differences in the views of organisations and individuals on the potential barriers to institutions making financial contributions. Most commonly, individuals said there were, or should be, no barriers. However, organisations (and some individuals) identified possible barriers relating to (i) insufficient funds, (ii) (lack of) insurance cover, (iii) organisations no longer existing, and (iv) legal restrictions on charitable spending.
- Respondents disagreed about whether consideration should be given to the potential impact of financial contributions on current services. Nearly all organisations (92%) thought it should, whereas two-thirds of individuals (63%) thought it should not. Organisations wanted financial contributions to be set at a level that minimised the impact on current services. Those individuals who said the impact on current services should not be a consideration saw financial contributions as an issue of justice, and thought redress should be made, regardless of the circumstances of current services.
- Respondents thought that the Scottish Government should cover contributions to the scheme for institutions that no longer existed and for organisations that had no assets. In cases where another organisation had assumed the responsibilities and / or assets of defunct organisations, respondents thought the successor organisation should be liable for contributions. However, organisations thought it would be unfair for unrelated care providers to cover the contributions of organisations that no longer existed.
- Organisations and individuals offered different types of comments about what would constitute fair and meaningful financial contributions. In general, organisations said they could not answer this question without information. By contrast, individuals often suggested specific sums or percentages of the total redress payment (e.g. 25%, 100%).
- In terms of how to secure contributions, respondents agreed that there should be consequences for non-payment (97% overall; 99% for individuals and 84% for organisations). The most common views among individuals were that contributions should be required by law; and non-payment should result in legal action, financial or other sanctions (e.g. withdrawal of public funding, revoking of charitable status, or closure), or ‘naming and shaming’. Among organisations, there were mixed views about whether persuasion / discussion, or a more formal (potentially legislative) approach should be used to secure financial contributions. Although some organisations agreed that legal action was an option, this group often also raised caveats or concerns about this, with some arguing that non-payment should be dealt with on a case-by-case basis.
- Individuals and organisations agreed that responsible institutions should be expected to contribute towards wider reparations (in addition to making financial contributions).
A note about the responses
11.2 The following points should be noted about the findings presented in this section.
- Individual respondents interpreted this group of questions in different ways. Whilst some (correctly) understood the questions as asking about financial contributions from the organisations responsible for historical abuse, others understood them as referring to contributions from individual perpetrators. Thus, some individuals thought that the death of those individuals was a potential barrier to financial contributions, and / or they considered that imprisonment should be a consequence for those who do not make financial contributions. It is not always clear from the comments which of these two understandings individuals had. In addition, in relation to some of the questions in this section, a relatively large proportion of individuals answered the initial tick-box question, but when asked to explain their answer said that they ‘did not know’, that they were ‘unsure’, or that they did not understand the question. Thus, caution should be used in interpreting the views of individual respondents, as presented in this chapter.
- Some current or former care provider organisations stated that they had ‘chosen not to answer’, or ‘were not in a position to comment’ on many of the questions in this section of the consultation questionnaire. In addition, some organisations provided extensive comments at Question 35, and then simply referred back to these comments when responding to subsequent questions. The views expressed have been analysed and presented below at each of the relevant questions. Organisations were also more likely than individuals to provide comments without answering the tick-box questions.
The principle of financial contributions (Q35)
11.3 Question 35 asked respondents if they agreed with the Scottish Government that those bearing responsibility for the abuse should be expected to contribute to the financial redress scheme.
11.4 Table 11.1 below shows that the vast majority of respondents (94%) agreed, with a similar pattern of response among individuals (95% answered ‘yes’) and organisations (89% answered ‘yes’).
|Local authority / public sector partnerships||8||73%||3||27%||11||100%|
|Other public sector organisations||3||100%||–||0%||3||100%|
|Current or previous care providers||9||90%||1||10%||10||100%|
|Third sector, including survivor groups||8||100%||–||0%||8||100%|
|Legal sector organisations||4||100%||–||0%||4||100%|
|Other organisational respondents||1||100%||–||0%||1||100%|
|Total (organisations and individuals)||236||94%||15||6%||251||100%|
One individual ticked both ‘yes’ and ‘no’ to this question. This response is not included in the table above.
11.5 Altogether, 193 respondents (154 individuals and 39 organisations) provided comments to explain their responses.
Agreement with financial contributions from those responsible for abuse
11.6 As Table 11.1 shows, there was general consensus among both individuals and organisations that those responsible for the abuse of children in care should make financial contributions. However, these two groups raised different issues in their comments.
11.7 In general, individuals focused on explaining why they thought those responsible for abuse should be expected to make financial contributions towards the cost of redress. Individuals saw such contributions as ‘only fair’ as they believed that those responsible for the abuse should be held accountable. This group suggested that a financial contribution would act as a public acknowledgement that the institution had failed in its duty of care. Some in this group also argued that the institutions (particularly religious groups) could afford to provide such contributions. Less often, individual respondents discussing the principle of financial contributions saw it as a form of ‘punishment’ (i.e. of an individual perpetrator) or ‘compensation’.
11.8 Like individuals, organisations answering ‘yes’ to Question 35 saw the principle of financial contributions as a way of ‘taking responsibility’ and ‘facing up to the wrongs of the past’. Some highlighted the symbolic nature of such contributions and its role in supporting the healing of victims of abuse. Others argued that the principle of seeking financial contributions from those responsible for abuse was in accordance with international best practice. The point was also made that concerns about abuse in children’s homes in Scotland had been raised as early as the 1960/70s, but that no action had been taken at that time to investigate allegations.
11.9 However, while organisations supported the principle of financial contributions, they also frequently expressed concerns or caveats. Organisations (and particularly care provider organisations) argued that:
- Such contributions should be ‘proportionate’ and ‘fair’; institutions should only be expected to contribute in relation to cases for which they had responsibility.
- There would be a limit to how much most organisations could contribute to the scheme, and any contributions would impact on the ongoing work of those organisations.
- The scheme should not operate in such a way that it results in the bankruptcy or closure of existing frontline care services, as this would essentially punish the individuals who are currently being supported by those services, many of whom are vulnerable young people.
- There needed to be clarity about who would pay any financial contributions if a responsible organisation no longer existed or did not have the means to make such payments.
11.10 Some organisations (care providers, local authorities and legal sector bodies) also raised the issue of insurance – pointing out that many organisations would not have insurance cover for cases of historical abuse, and therefore any costs would need to be funded from existing budgets. Where insurance cover was in place, it would ordinarily only pay out in the event of liability being established through civil proceedings. Moreover, policy deductibles / excesses – which were likely to vary from year to year, and for different insured organisations – added further complexity. Thus, organisations may not be able to draw upon insurance to make financial contributions to a redress scheme.
11.11 Individuals were less likely than organisations to qualify their responses, and, when they did, they tended to focus on different issues. For example, individuals were concerned that the process of obtaining financial contributions from those responsible for abuse would be ‘lengthy and expensive’, since records were not available and, in some cases, the institutions had closed down. Some also commented that many of the individuals involved were now dead (suggesting perhaps an expectation that individual perpetrators would have a role in making financial contributions). Finally, some individuals thought that financial contributions should only be sought from institutions that could afford to pay.
The identification of ‘those bearing responsibility’
11.12 Both individuals and organisations raised questions about who exactly should be considered ‘responsible’ for the abuse suffered by victims / survivors, and thus liable to make financial contributions towards a redress scheme. Among individuals, there were disparate views on this matter; among organisations, there was a greater degree of consensus – although the consensus was that it was likely to be extremely difficult to identify the responsible entities.
11.13 Some individuals thought that any financial contributions should be made by: (i) the care provider organisations that were given money to look after children and allowed abuse to take place; (ii) the local authorities / social work departments that failed to monitor what was happening in these institutions; and / or (iii) the government (now the Scottish Government) which was considered to be ‘negligent’ in failing to ensure the safety of children. Others thought that ‘taxpayers’ should not have to pay towards the redress scheme.
11.14 In contrast to these arguments, organisational respondents discussed the challenges and complexities of identifying the organisations responsible for historical abuse. A consistent message from this group was that there is no straightforward way of determining who should make financial contributions to the scheme. Local authorities, in particular, highlighted the local government reorganisations that have taken place over the past few decades. Further difficulty / complexity was foreseen if more than one organisation had been involved in the care of an individual and / or if the individual had moved between authorities / institutions during their time in care. There was a widespread view amongst organisations that responsibility for historical abuse lies with multiple organisations – the care provider service, the local authority and central government.
11.15 However, the point was also made that some entities accused of abuse may, in fact, not be responsible for it. Concerns were voiced that organisations should not be expected to make financial contributions toward a redress scheme without having the opportunity to put forward a public defence against any allegations of abuse. There was also a view that financial contributions from those responsible for abuse should not be based on organisations voluntarily opting-in to the scheme, with the view expressed that survivors could be disadvantaged if payments to them were dependent on voluntary contributions being received. The experience of the Australian scheme was highlighted, where this type of model had led to some claimants being denied redress.
11.16 Local authority respondents urged the Scottish Government to work closely with the Convention of Scottish Local Authorities (COSLA) to ‘identify and stress-test’ different contribution models before any legislation is introduced.
Disagreement with financial contributions from those responsible for abuse
11.17 The small number of respondents who disagreed at Question 35 (4 out of 38 organisations and 15 out of 251 individuals) offered a range of comments to explain their views. Some individuals argued that the events were ‘too long ago’ and that, in many cases, those bearing responsibility (i.e. the individual perpetrators of the abuse) had died. There were also concerns (both among individuals and organisations) that the requirement to make financial contributions for historical abuse could adversely affect the current (good) work of organisations in providing care to vulnerable young people. Some organisations argued that current care providers should not be held responsible for what happened in their organisation in the distant past.
11.18 Other points made by this group were that: (i) there is no funding available within organisations to provide a contribution towards a redress scheme; (ii) the cost of those contributions is likely to far exceed estimates; (iii) no insurance cover is available to meet such demands; and (iv) in some cases, allegations of abuse were robustly addressed by the organisation at the time they were made. There was a suggestion that institutions should not have to contribute towards redress for an individual survivor if that individual had already pursued compensation through a civil court action. There was also a recurring view among some organisations (a subset of local authorities and a subset of care provider organisations) that the Scottish Government should fund the financial redress scheme in its entirety.
How financial contributions to the scheme should be made (Q36)
11.19 Question 36 asked how the financial contributions from those responsible should be made. Respondents were given three choices – (i) an upfront contribution to the scheme (Option 1), (ii) a contribution based on the number of applicants who come forward from their institution or service (Option 2), or (iii) another approach (Option 3) – and were asked to indicate ‘yes’ or ‘no’ in relation to each. Respondents were asked to explain their answer. A further follow up question invited any additional comments about the mechanism for making financial contributions.
11.20 Altogether, 227 respondents (198 individuals and 29 organisations) ticked one or more of the boxes provided at Question 36, and Table 11.2 shows the number and percentage of respondents who answered ‘yes’ to each option as a proportion of those who ticked at least one box at Question 36. However, it should be noted that (i) around two-fifths of individual respondents ticked more than one option, compared to just two of the organisational respondents, and (ii) respondents did not necessarily tick a ‘yes’ or ‘no’ box beside all three of the options offered, and therefore it is not clear whether a non-response was intended to indicate ‘no’, or whether the respondent simply did not engage with all three parts of the closed question.
11.21 Table 11.2 shows that, among those who addressed this question, there was no clear consensus about how financial contributions should be made. However, the largest proportion of respondents (56%) favoured contributions based on the number of applicants who come forward from a particular institution or service. There was a similar level of support (from 52% of respondents overall) for upfront contributions. However, there were differences between organisations and individuals. Organisations were much less likely than individuals to favour upfront contributions to the scheme – 14% vs 57% respectively. Organisations were also more likely than individuals to favour ‘another approach’ to financial contributions – 48% vs 35% respectively.
|Option 1: An upfront contribution to the scheme||4||14%||113||57%||117||52%|
|Option 2: A contribution based on the number of applicants who come forward from the institution or service||14||48%||112||57%||126||56%|
|Option 3: Another approach||14||48%||69||35%||83||37%|
|Base (total who ticked at least one box at Question 36)||29||198||227|
One individual ticked both ‘yes’ and ‘no’ for the second option. This response is not included in the table above.
11.22 Altogether, 157 respondents (123 individuals and 34 organisations) provided further comments at Question 36. Note that organisations were more likely than individuals to make comments without ticking any of the three options at the closed question. Some individuals stated in their comments that they did not understand the question or did not know how to respond. It was also relatively common for individual respondents not to explain why they chose one or more of the options at Question 36, but rather to repeat points made at Question 35 – i.e. that institutions responsible for abuse should contribute financially to the redress scheme as this was only fair and that these contributions should be mandatory.
Views on Option 1 – an upfront contribution to the scheme
11.23 In general, organisational respondents were not in favour of an upfront contribution to the scheme as they did not consider this option to be ‘fair’. Organisations thought that any payments made by care providers should be dependent on, and limited to, the number of claims made against them. The four organisations who selected Option 1 did not make clear why they had selected this option, but instead made comments about how such a system would operate, suggesting that a ‘fair methodology’ for determining contributions should be agreed with all those responsible before any contributions are paid; any upfront payments should be based on the number of individuals who have implicated specific care providers; and that any upfront contributions should be conditional on additional funds being contributed later depending on the severity of the abuse, the number of applications, and the extent to which contributions were covered by insurance.
11.24 In contrast to organisational respondents, individuals were more supportive of upfront contributions. The main reason was that this was likely to be the easiest and least complicated option – providing less opportunity for ‘stalling’, ‘prevaricating’ or ‘questioning by lawyers’, and helping to avoid delays in paying out to claimants. Other reasons, mentioned less often, were that:
- The number of applicants may never be known – thus making option 2 less attractive.
- The organisations implicated in historical abuse ‘have enough money’ and can afford to make upfront contributions.
- Upfront contributions would assist with Stage One payments.
- Upfront contributions would encourage insurance companies to ‘be more positive and willing to settle’.
11.25 Some individuals suggested that upfront contributions might need to be supplemented at a later stage once the number of applicants were known. There was also a suggestion that upfront contributions could be calculated based on the number of victims / survivors known to-date, and the levels of abuse suffered by each individual.
11.26 Occasionally, individuals who had selected options 2 or 3 explained why they did not support Option 1. The main reason given was that this option was likely to require evidence of the organisation’s involvement in abuse to be established first.
Views on Option 2 – contributions based on number of applicants
11.27 Organisations and individuals who thought that contributions should be based on the number of applicants who come forward from the institution or service (i.e. Option 2) often cited reasons of ‘fairness’. Both groups argued that it would be ‘unfair’ for care providers involved in isolated cases of abuse to make the same level of contribution as those who had a ‘culture of abuse’. Some care provider organisations went further to suggest that it would be ‘unjust’ and an ‘inappropriate use of charitable funds’ to contribute to settlements relating to the failings of other institutions. Individuals, too, thought that the financial contributions from those responsible for abuse should reflect the fact that ‘some places were worse than others’ and they argued that proportional payments would achieve this. Individuals also suggested that contributions based on the number of people applying for redress would make it easy to calculate what each institution should pay.
11.28 Respondents in favour of having contributions based on the number of applicants sometimes made additional suggestions about how to ensure fairness. For example, it was suggested that further clarity was needed in relation to the roles of the placing authority (i.e. social work departments) and the institutions / organisations providing the care placement. There were also suggestions that (i) a formula should be agreed to determine the basis of contributions, (ii) organisations would need to have contingency plans in place in case further victims come forward, (iii) organisations should not have to pay twice if there has been a civil suit against them, (iv) there should be an allowance for scheme administrative costs, and (v) any financial contributions should take into account the impact of the abuse as well as the number of applicants coming forward.
11.29 Occasionally, respondents who had answered ‘yes’ to options 1 or 3 gave reasons why they did not support Option 2. These reasons included that:
- Organisations should have the opportunity to defend themselves against any claims of abuse. Therefore, payments based on the number of applicants (without evidence substantiating the claims) would be unfair.
- A scheme dependent on applicants coming forward would result in unpredictable obligations for organisations.
- The number of people who have been abused (and therefore the number of applicants) may never be known, as many may not come forward.
Views on Option 3 – another approach
11.30 As shown in Table 11.2 above, organisations were more likely than individuals to select Option 3. Respondents who selected Option 3 were asked to provide details about the type of approach to financial contributions which could be used. Among those who provided details, a wide range of suggestions were offered. A recurring view within these suggestions was that, since the redress scheme would be a national scheme, it should be funded by the Scottish Government – at least in the first instance. This type of approach was proposed by a subset of local authorities, care providers and individuals. Within this group, the most common suggestion was that the Scottish Government should make all the payments and then be reimbursed by institutions for their share once the actual costs are known, preferably according to an agreed formula. Some respondents referred to the Social Security Contributions and Benefits Act 1992, and the NHS CNORIS scheme as potentially relevant models. Two other suggestions, made less often, were that (i) the scheme should be funded entirely by the Scottish Government and (ii) that the Scottish Government should fund ‘the majority’ of the payments.
11.31 Other suggestions, usually made by just one or two respondents, included the following:
- Contributions should be made on a case-by-case basis since individuals and their circumstances are likely to vary. Those who made this suggestion thought that a blanket (one-size-fits-all) approach was unlikely to be helpful or fair for any of the parties involved.
- Contributions should be negotiated on a case-by-case basis, since there are other ways of making contributions which may not necessarily involve a financial transaction (e.g. by providing after-care, or other types of support), and some organisations may resolve cases through civil proceedings and should not have to pay twice.
- Organisations should meet 100% of the costs – if they can afford it. These payments should include not only the compensation element but also any costs relating to legal advice and support.
- The organisations’ assets should be frozen (or individual perpetrators’ assets should be seized) until their financial contribution is obtained.
11.32 Respondents choosing Option 3 also made a wide range of other relevant but disparate points. The most common of these were that: (i) applications to the scheme should be investigated to ensure their veracity to maintain the integrity and robustness of the scheme, (ii) any approach to contributions needs to take account of the share that would fall to insurers, (iii) an organisation’s assets should be taken into account when determining their level of contribution, and (iii) the redress scheme in Scotland should learn from schemes in other countries. Local authorities highlighted (again) the crucial role of COSLA in achieving satisfactory arrangements for contributions from councils.
Barriers to making financial contributions (Q37)
11.33 Question 37 (an open question) asked respondents if they thought there were any barriers to providing contributions, and if so, how these might be overcome. Altogether, 171 respondents (132 individuals and 39 organisations) provided comments. There were some similarities and differences between organisations and individuals in their responses.
11.34 Among individuals, the most common response was that there were – or should be – ‘no barriers’ to institutions making financial contributions to the redress scheme. The second most common response among individuals was that they did not know or were unsure about whether there were any such barriers. However, organisations – and some individuals – highlighted a number of barriers, and there was often agreement between these two groups about what these were, although the emphasis given to them varied. For example, both organisations and individuals identified a lack of sufficient funds as a possible barrier to institutions making financial contributions. For organisational respondents, this was the main issue raised, whereas individuals raised it less often. Similarly, both organisations and individuals raised the possibility that organisations might no longer exist; however, this appeared to be a greater concern for individuals than for organisations.
11.35 The three barriers identified both by organisations and individuals were (i) insufficient funds being available, (ii) lack of, or limited, insurance cover, and (iii) organisation(s) no longer existing. Each of these is discussed briefly.
Insufficient funds available
11.36 This issue was raised by nearly all the care provider organisations and local authorities, as well as some third sector organisations, some legal organisations and some individual respondents. Organisations said that any money used for financial contributions would have to be diverted from current care services. This would be likely to compromise the care currently being provided to vulnerable young people and adults, making some organisations unviable and resulting in their closure. Furthermore, there would be a disproportionate impact on smaller organisations which had few funds available. Some organisations argued that the only sources of funding available to local authorities would be from council reserves, council revenue budgets, or from insurers; others suggested that local authorities had no funds to meet uninsured claims. Additionally, the point was made that organisations would also have to make provision for individual victims / survivors who decide to pursue a civil suit, rather than accept a redress payment. This would put further pressure on organisational finances, although it was noted that cases for which liability had been proven through civil court action were likely to be covered by public liability insurance; by contrast, insurance was not likely to be available for financial contributions where no liability had been established.
Lack of, or limited, insurance cover
11.37 A lack of, or limited, insurance to cover financial contributions to the scheme was a significant concern for local authorities. Some care providers and, occasionally, individuals also raised this issue. The points made were detailed and complex. However, the key issues related to: (i) organisations’ historical insurance arrangements and the willingness (or not) of successor insurers to make contributions in respect of historical liabilities; (ii) insurance company requirements for evidence of ‘harm’ or ‘injury’ prior to paying a claim; (iii) policy excesses (deductibles); and (iv) the level of payments insurance companies were likely to make for a claim of abuse in care.
Responsible organisations no longer existing
11.38 Both individual and organisational respondents highlighted the possibility that organisations responsible for historical abuse may no longer exist. Some organisations were concerned that existing institutions should not be expected to cover part of the contributions that would have been paid by (unrelated) now non-existent care providers.
Other barriers identified by respondents
11.39 In addition to the three barriers discussed above, organisations – but not individuals – frequently identified barriers related to charity law which puts restrictions on charitable organisations in relation to their spending. Those who raised this point did not believe charitable organisations would be lawfully able to use funds to make payments to a redress scheme for historical cases of abuse. Organisations also saw a barrier in terms of identifying / establishing exactly who the organisation responsible for the abuse might be. This was a significant issue for local authorities who highlighted local government reorganisations in 1975 and 1996, and for charitable sector care providers that did not necessarily have an employer-employee relationship with individuals alleged to have carried out abuse of children in care in the past. Individuals, on the other hand, thought that the denial of liability by some organisations could be a barrier.
Suggestions for overcoming barriers
11.40 Organisations and individuals made a range of suggestions about how barriers to making financial contributions might be overcome. The one made most often, by both groups, was that the Scottish Government should fully fund the redress scheme.
11.41 Organisations also tended to emphasise the importance of the Scottish Government engaging in discussions with insurers and with COSLA to fully assess the potential impact of the redress scheme on existing services and ensuring that any decisions about financial contributions took account of an organisation’s financial standing. There was a suggestion that Audit Scotland should also be involved in these discussions. However, an alternative view was that the focus on ‘financial’ contributions was not helpful – and that it would be better to focus on other ways that care provider organisations could contribute to the redress scheme (for example, by providing support or other services to victims / survivors) – see Question 44.
11.42 Comments from individuals tended to focus on what could be done if an organisation responsible for abuse no longer existed. Individuals suggested that, in these cases, the parent organisation (for example, the Catholic Church where the responsible organisation was a religious order that no longer exists), or the organisation’s insurers, should pay their share. Individuals frequently suggested that financial contributions should be ‘mandatory’, that organisational claims of lack of funding should be formally investigated, that organisational assets should be seized or frozen until the organisation paid, or that the organisation (in some cases, individual perpetrators) should be taken to court if they refused to pay.
Impact of financial contributions on current services (Q38)
11.43 Question 38 asked respondents whether consideration needed to be given to the potential impact on current services of making financial contributions to the redress scheme. Table 11.3 shows that respondents were divided in their views on this question – 47% said ‘yes’ and 53% said ‘no’. In addition, organisations and individuals had different views – the vast majority of organisations (92%) answered ‘yes’, while almost two-thirds of individuals (63%) answered ‘no’.
|Local authority / public sector partnerships||12||100%||–||0%||12||100%|
|Other public sector organisations||2||100%||–||0%||2||100%|
|Current or previous care providers||10||91%||1||9%||11||100%|
|Third sector, including survivor groups||5||83%||1||17%||6||100%|
|Legal sector organisations||4||80%||1||20%||5||100%|
|Other organisational respondents||2||100%||–||0%||2||100%|
|Total (organisations and individuals)||93||47%||103||53%||196||100%|
Three individuals ticked ‘yes’ and ‘no’ to this question. These responses are not included in the table above.
11.44 Altogether 155 respondents (117 individuals and 38 organisations) commented at Question 38. Individual respondents often said that they did not understand the question, ‘did not know’ or were ‘unsure’ about whether the impact on current services should be considered in relation to financial contributions. This group included some who ticked either ‘yes’ or ‘no’ to the closed question. In addition, among the individuals who answered ‘yes’ to this question, there were some whose comments suggested that the respondent did not necessarily think that the impact on current services should be a consideration. These two issues suggest that there may have been some confusion among individual respondents about the meaning of this question and therefore the figures shown for individuals in Table 11.3 should be treated with caution.
Views in favour of taking account of impact on current services
11.45 Organisational respondents reiterated their support for the financial redress scheme, and for the principle of organisations with a history of abuse making financial contributions towards the scheme. However, as discussed in relation to Questions 35 to 37, organisational respondents were concerned that the requirement to make financial contributions would have a severe impact on current service provision. These respondents repeatedly made the point that local authorities and other care provider organisations are facing significant cost pressures even before the redress scheme is introduced. In the absence of any insurance cover (which may well be the case for many organisations), the organisations will need to pay financial contributions from their own funds, which will inevitably divert funds from current services. Care provider organisations emphasised that this situation would have a ‘huge impact’ on their ability to continue to deliver vital support and care to vulnerable children and adults, could result in redundancies, and could put many existing services out of business.
11.46 Organisational respondents of all types emphasised that it would not be appropriate for today’s vulnerable service users to suffer as a result of redressing ‘past wrongs’. These respondents recognised the importance of financial contributions, but asked that contributions be set at a level that is affordable and proportionate, and which does not have an adverse impact on the ability of services to provide safe, high-quality care now and in the future.
11.47 Organisations urged the Scottish Government to (i) engage in discussions with insurance companies and their representative bodies and other organisations such as Audit Scotland and the Office of the Scottish Charity Regulator (OSCR), and (ii) fully assess the impact on current services of making financial contributions. Organisations suggested that Scottish Government funding would be likely to be required to ensure that current services are not affected, and offered a range of views about the Scottish Government’s role. As stated above, some thought that the redress scheme should be funded entirely by the Scottish Government. However, others suggested there might be a role for the Scottish Government in making payments for local authorities which no longer exist. A third view was that the Scottish Government could operate a loan scheme – making initial payments and then agreeing a repayment plan with individual organisations.
11.48 Individuals who answered ‘yes’ to Question 38 expressed the view that those who are currently in care should not be adversely affected by a requirement for an organisation to make a financial contribution to the redress scheme. Some also said it was important that any financial contributions made by current services should not result in good services being put at risk of closure.
11.49 However, it was more common for this group to say that the needs of victims / survivors should be prioritised, and that services should take responsibility for their past failings. This group made suggestions about how payments could be made without adversely affecting current services. These suggestions were similar to those made by organisations – i.e. that the contributions should be paid by public liability insurance policies, or that the Scottish Government should pay if the organisations are unable to do so (some respondents also suggested a loan arrangement as mentioned above). Occasionally, individuals suggested that properties could be confiscated, or individual perpetrators could be stripped of their pensions.
Views opposed to taking account of impact on current services
11.50 There were three main points made by respondents (almost all individuals) who thought the impact on current services should not be a consideration in relation to the issue of financial contributions. This group viewed financial contributions by responsible organisations as an issue of justice, and they thought that, whatever the circumstances of current services, redress needed to be made. Some expressed the view that it was appropriate for services to be ‘punished’ and said they ‘did not care’ about current services. Others argued that many of the organisations responsible for historical abuse had insurance policies, had ‘enough money’, or had land and assets that could be sold to pay contributions, without it affecting current services. They also believed that certain services (local authorities and religious groups were mentioned) had ‘discretionary funds’ that could be used for these purposes.
11.51 Some in this group suggested that organisations have known about the redress scheme for some time and therefore had sufficient opportunity to plan for their share of the financial contributions in setting budgets.
Other possible impacts and how these might be addressed (Q39)
11.52 Question 39 asked respondents if there might be any other impacts (other than on current service provision) which could result from financial contributions, and if so, how these could be addressed. This was an open question (with no initial closed question), addressed by 131 respondents (101 individuals and 30 organisations).
11.53 Among individuals, around half of those who made a comment said they ‘did not know’ or were ‘unsure’ about what other possible impacts could arise from making financial contributions. It was also relatively common for individuals to say that there would be no other impacts, that they did not care about other possible impacts, or that it was for others to identify and address any possible impacts. However, around a third of individuals commenting at Question 39 identified one or more additional impacts which could result from organisations making financial contributions towards the redress scheme. These covered potential impacts on the services making the contributions but, more often, focused on the potential impacts of financial contributions on the victims / survivors receiving the contributions.
11.54 Organisational respondents mainly identified impacts on the organisations making the contributions. Only occasionally did organisations identify possible impacts on victims / survivors. Thus, the views of individuals and organisations about other organisational impacts are discussed together first, before discussion of the possible impacts on victims / survivors.
Possible impacts on services making financial contributions
11.55 Organisations and individuals identified several possible service-related impacts which could arise as a result of organisations making financial contributions. These are all in addition to the impacts on care provision which have already been discussed in relation to Question 38 and included:
- Reputational damage: There were two aspects to this. First, the organisation making the financial contribution could itself suffer reputational damage if information about the payments were made public. This could result in a loss of faith in the organisation among current service users and their families and affect its ability to fundraise and continue to operate. Care providers and local authorities were concerned about this, as they felt incidents of historical abuse did not reflect the current quality and standards of care in their organisations. Secondly, respondents said that if a civil claim or criminal prosecution was brought against a previous member of staff alleged to have been involved in abusing children, current or previous employees of the organisation may be individually targeted and victimised by members of the public.
- Local economic impact: Depending on the size of a care provider organisation, financial contributions could result in staff redundancies, thus affecting local employment. In addition, these organisations are purchasers of local services (e.g. food, furnishings and other services) and this economic activity might also be affected by a reduction in a care provider’s funding.
- Impact on other services: If local authorities must provide financial contributions towards a redress scheme, this could result in a reduction in funds available to other services provided by the local authorities.
- Workforce impacts: There were three aspects to this. First, there was the potential for workload impacts. For example, social work staff may need to assist claimants in tracing and providing evidence for redress claims, making applications, and arranging other support services. Local authority staff may also need to handle personal injury claims from these same individuals, and staff will need to be put in place to track and manage the financial impact of contributions. Second, there was the potential for redundancies due to cuts to staff budgets. Third, there was the potential for psychological impact on staff involved in supporting redress applications (e.g. vicarious trauma and burnout), caused by being exposed to stories of abuse and neglect of children in care. It was suggested that such impacts have already begun to be seen among staff involved in supporting the work of the Scottish Child Abuse Inquiry and Advance Payment Scheme.
11.56 Some organisational respondents suggested that a major risk of the scheme is the potential for an unexpectedly large number of applications. There were concerns that the financial impact on current service providers was likely to be underestimated.
11.57 Respondents made a range of suggestions for mitigating the risks identified above. These overlapped to a large extent with suggestions made previously in relation to addressing the barriers to financial contributions. These included:
- Making central funding available to minimise impacts on organisational budgets
- Ensuring that contributions are affordable and proportionate and do not affect the ability of a service to provide safe, high-quality services now or in the future
- Undertaking affordability and impact assessments prior to setting the level of financial contributions required
- Issuing a formal public statement that the payments made by organisations relate to historical issues that they accept and have learned from
- Highlighting more generally the systems and procedures which currently exist to monitor service quality and standards
- Ring-fencing funding within organisations which supports other areas of need.
Possible impacts on victims / survivors of financial contributions
11.58 Individual respondents and, occasionally, organisational respondents also identified the potential for impacts on victims / survivors of financial contributions (or of the process of obtaining financial contributions).
- Length of time required to obtain financial contributions: The point was made that if organisations were given the opportunity to defend themselves against any claims for redress, this would result in the scheme becoming more complex, legalistic and slower than may have originally been envisaged. It could also deter potential applicants if organisations can challenge whether abuse actually occurred. If a victim / survivor was abused in more than one institution, this would require some provision for apportioning the contributions among different institutions which will also require further investigation and take time. There will be further complexity if an organisation no longer exists.
- Loss of financial contributions from services that become financially unviable: Where services are forced to declare bankruptcy due to the requirement to make financial contributions, it would be impossible for any further redress awards and / or civil court judgements against that organisation to be satisfied. This would have the potential to further harm the interests of victims / survivors who have applied for redress.
- Impacts on individuals’ financial circumstances: There were two aspects to this. First, there was a concern that individual victims / survivors may need support / mentoring to manage their redress payments and / or to avoid falling victim to financial abuse by third parties (particularly for those who have learning disabilities, mental health problems, or problems with drug or alcohol dependence). Second, there was a concern that redress payments could affect the eligibility of victims / survivors for benefits. It was suggested that any monies paid via a redress scheme should not result in a ‘claw back’ of benefits.
11.59 A recurring theme in the comments from individuals was that financial contributions from those organisations responsible for historical abuse – while helpful – were unlikely to end the trauma that victims / survivors had been through. The point was made that these individuals are likely to require ongoing support. However, there was also a suggestion that there should be less focus on (negative) impacts, and more focus on the long-term benefits that may result from victims / survivors of historical abuse being more financially secure.
Organisations no longer in existence or with no assets (Q40)
11.60 Question 40 asked respondents for their views on what should happen (in relation to financial contributions) where a responsible organisation no longer exists in the form it did at the time of the abuse, or where an organisation has no assets. This was an open question with no preceding tick-box question. Altogether, 193 respondents (157 individuals and 36 organisations) commented; however, comments from seven of the organisations specifically stated that the organisation had no comments, was not in a position to answer, or had decided not to answer this question. At the same time, around a third of the responses from individuals said either that the respondent ‘did not know’ or was ‘unsure’ of how to answer, or they included comments that were unclear – possibly suggesting that the individual may not have entirely understood the question.
11.61 The remaining responses indicated similar views among organisations and individuals. Among both groups, the most common response was that, where a responsible organisation no longer existed in the form it did at the time of the abuse, or where an organisation has no assets, then the Scottish Government would need to step in and pay that organisation’s contributions to the scheme. Less often, respondents said that the Scottish Government would need to pursue the contributions (e.g. through the courts or directly with the organisation), or that it was up to the Scottish Government to decide what should be done in these circumstances. Individual respondents emphasised that individuals abused in organisations that no longer existed should not be disadvantaged in relation to the redress owed to them.
11.62 It was also relatively common for respondents (and particularly organisations) to say that if another organisation had taken over the responsibilities and / or assets of an organisation, then the successor organisation should be liable for contributions. In some cases, this successor organisation may have been a parent organisation (such as the Catholic Church or other religious body in the case of orphanages run by religious orders). Some local authority respondents pointed out that this situation also applied to councils as a result of local government reorganisations in 1975 and 1996, and they highlighted potential complications with respect to some local authorities having more than one successor authority (e.g. within the old Strathclyde Regional Council area), and cross-authority placements (i.e. a child from one authority placed in a care service in another authority). It was also suggested that the financial position of a successor organisation may be such that they would require an extended period of time to meet their obligations and, in these cases, it was suggested that the Scottish Government should initially fund the contributions and then seek repayment. However, some argued that it would not be realistic to try to obtain financial contributions from organisations that have been wound up and have no resources.
11.63 In addition to pursuing successor organisations, respondents (and again, particularly organisations) often suggested that contributions be sought through the predecessor organisation’s insurers. It was noted that a similar scenario for victims of mesothelioma had been addressed through the establishment of a payment scheme with compensation packages available to individuals who could not trace a liable employer or an employer’s insurer – these packages of support were funded by insurance firms via a levy. There was a suggestion that one of the purposes of a formal redress scheme should be to overcome the problems presented by this scenario.
11.64 Individuals often suggested that where an institution no longer existed, individuals previously responsible for the management of that institution, or individuals employed by that institution should be pursued instead. Occasionally, individuals also said that in these circumstances, the local authority which placed the child in care could make their financial contributions.
11.65 However, there was general consensus among respondents that should it prove impossible to pursue a successor organisation, or a predecessor organisation’s insurers, then the Scottish Government would need to pay instead. Organisations thought it would be unfair to expect care provider organisations that are still in operation to contribute disproportionately to cover the contributions of organisations that no longer exist.
11.66 Some individuals and organisations suggested that, if it was not possible to obtain a financial contribution from a responsible organisation (either because the organisation no longer existed, or because they had no assets), the organisation should be named publicly and the former management (or employees) of the institution should be willing to issue a formal apology. Similarly, in situations where institutions continued to exist, but had no means to pay their financial contributions, the offer of in-kind support (of a non-financial nature) should be considered instead. Finally, some respondents suggested that the non-existence of assets may need to be independently verified, particularly in cases where land may still be held by or on behalf of a former organisation.
What constitutes a fair and meaningful contribution (Q41)
11.67 Question 41 asked respondents for their views about what a fair and meaningful financial contribution would be from those responsible for historical abuse. This was an open question with no preceding tick-box question. Altogether, 195 respondents (158 individuals and 37 organisations) commented and there were marked differences in the views expressed by organisations and individuals, as described in the following paragraphs.
11.68 In general, organisations said that they were not able to answer this question without further information. Specifically, organisations wanted details about (i) the number of applicants, (ii) the range of payments likely to be awarded, (iii) how the scheme will operate in practice, (iv) the extent to which insurance companies will contribute to costs, and (v) financial projections of how contributions would impact on organisations’ budgets. They thought that this information was needed before a view could be reached about ‘fair and meaningful’ financial contributions. In addition, instead of commenting on what would constitute a ‘fair and meaningful’ contribution, organisations often identified factors that should be considered in determining what a ‘fair and meaningful’ contribution is.
11.69 Around a third of individuals responded to this question by saying ‘don’t know’ or ‘unsure’. However, more often, individuals made very specific suggestions about what would constitute a ‘fair and meaningful’ financial contribution from organisations responsible for abuse. Usually these suggestions were expressed as a percentage of the total redress payment ranging from 25% to 100% – the most common suggestion was 100%. However, some individuals suggested that a percentage of the organisation’s total assets (usually 100%) should form the basis of their contributions, and others suggested a specific amount – either a total amount (ranging from £2,000 to £100,000) or an amount per year that a victim / survivor was in care (ranging from £20,000 to £200,000 per individual per year spent in care). Some individuals also made more general statements such as ‘as much as possible’, ‘as much as they can afford’, or ‘everything they own’. (Some individuals may have been referring to individual perpetrators of abuse in relation to such responses.) Very few organisations made such specific suggestions. Those who did proposed proportions ranging from 50% (with the other 50% paid by the Scottish Government) to 100%.
11.70 Like organisations, individuals also often highlighted factors that should be considered in deciding what a fair and meaningful contribution would be. In some cases, these factors were identified in addition to the more specific suggestions discussed above; in others, they were made instead of such suggestions.
11.71 Individuals (but not organisations) also occasionally referred to other external benchmarks which they thought could provide a basis for determining what a ‘fair and meaningful’ financial contribution would be – e.g. other similar legal claims and awards, or the experiences of other countries in making such payments. Individuals also frequently responded to this question with a question – e.g. ‘how much is a lost childhood worth?’ In addition, individuals often made more personal statements referring to the impact of abuse and suggesting that no amount of money could compensate for the ‘destruction of a person’s life’.
Factors to be considered in determining ‘fair and meaningful’ contributions
11.72 As noted above, both organisations and individuals frequently identified factors they thought should be considered in determining the level of financial contributions from organisations responsible for historical abuse. The suggestions largely reflected the differing perspectives of organisations and individuals / survivors on the issue of financial contributions.
11.73 For example, among organisations, important considerations included:
- Financial impact on the organisation: There were two issues raised in relation to this point. First, it was suggested that larger organisations could absorb the impact of making financial contributions more easily than small organisations. Second, organisations argued that making financial contributions should not jeopardise current service provision.
- How financial contributions would be apportioned among responsible organisations: There were suggestions that multiple organisations and entities would have shared responsibility for the abuse suffered by children in care in the past. In addition to individual care provider organisations, responsible organisations would include the management boards overseeing organisations, the local authority social work departments who placed children in care, the government of the time which was responsible for setting policy and standards of care, the youth justice and children’s hearings systems which had a duty of care to the children, and the statutory bodies responsible for the inspection and monitoring of care services. Those who raised this issue thought that the liability for financial contributions would need to be allocated proportionally to all such organisations.
- ‘Tailored’ vs ‘standard’ contributions: Some organisations thought that decisions about financial contributions should be taken on a case-by-case basis since they would depend on a wide array of circumstances and on the sums awarded in each case. Others called for a ‘standard’ or ‘universal’ approach based on a transparent formula or methodology.
11.74 Among individuals (and also some organisations), the key factors for determining levels of financial contributions were seen to be (i) the severity of the abuse; and (ii) its impact. An alternative view was that ‘fair and meaningful’ contributions should be punitive – particularly in cases where it can be shown that the organisation knew about abuse but did not intervene to stop it. A second alternative view, expressed less often, was that responsible organisations should make voluntary contributions without being forced to pay as this would demonstrate their sincerity. Occasionally individual respondents suggested that steps should be taken to avoid the closure of organisations providing ongoing services.
Who should decide what a ‘fair and meaningful’ financial contribution is?
11.75 Finally, some organisations and individuals made statements about who should, or should not, have the task of deciding what constitutes ‘fair and meaningful’ contributions from responsible organisations. A wide range of views were expressed including that the decisions should be made by:
- The Scottish Government
- An independent body (no specific suggestions were offered)
- A judge / the courts / lawyers / ‘the law’
- The various parties involved in each case
- The redress scheme management.
11.76 Respondents also suggested people or organisations who should not have responsibility for determining the level of financial contributions. These comprised (i) the Scottish Government, and (ii) survivors (suggested both by organisations and individuals).
Ways of encouraging fair and meaningful contributions (Q42)
11.77 Question 42 asked respondents about the most effective way of encouraging those responsible to make fair and meaningful contributions to the scheme. This was an open question with no preceding tick-box question. Altogether, 196 respondents (158 individuals and 38 organisations) commented. It should be noted that the comments of almost a fifth of the organisations specifically stated that they were ‘not in a position to comment on this question’, or they simply said, ‘no comment’. There were some similarities in the suggestions made by organisations and individuals. However, the emphasis given to certain suggestions within the two groups was very different.
11.78 The most common views among individuals were that: (i) contributions should be compulsory (i.e. required by legislation); (ii) legal action should be taken against those who do not contribute; and (iii) those who do not contribute should be ‘named and shamed’. In some cases, all three of these suggestions were made by a single respondent. Individuals sometimes also suggested ‘seizing’, ‘freezing’ or ‘selling’ an organisation’s assets, reducing funding to the organisation, or introducing other financial penalties (including through taxation).
11.79 Less often, individuals suggested ‘persuasion’ as a way of encouraging contributions. This could involve: (i) producing evidence of abuse taken from the testimonies of victims / survivors; (ii) meeting victims / survivors and learning about the impact and trauma of abuse in their lives; (iii) appealing to the organisation’s values, and their sense of ‘duty’ and ‘moral responsibility’; (iv) publicly commending those organisations who do contribute; and (v) being persistent (i.e. ‘keep asking’). Occasionally, individuals suggested that persuasion was likely to be more effective than legal imperatives in obtaining financial contributions.
11.80 Among those organisations who offered suggestions, there were mixed views about whether persuasion / discussion, or a more formal (potentially legislative) approach would be more effective in securing financial contributions from responsible institutions. Some organisations suggested that persuasion / discussion should be used in the first instance, with legislation introduced if that fails. There were also differences between organisations as to whether contributions should be ‘voluntary’ or ‘compulsory’. Care provider organisations tended to support persuasion and voluntary contributions, whereas local authorities and other public sector bodies tended to support persuasion backed up by legislation. Organisational respondents did not generally suggest ‘naming and shaming’ as a way of encouraging financial contributions.
11.81 A recurring message among organisations was that effort needs to be invested at an early stage to ensure that (i) any financial contributions are fair (i.e. based on an organisation’s ability to pay), proportionate and do not affect current service provision, and (ii) the full range of institutions responsible for abuse contribute their share (see paragraph 11.73 above, second bullet point). Organisations called for dialogue between the Scottish Government and care providers to reach agreement on the question of contributions. Organisations thought that this dialogue needed to include detailed information about the likely scale of contributions and the extent to which these costs would be covered by insurance. Finally, there were calls for information about the costs of payments made to survivors of in-care abuse in other jurisdictions.
11.82 Occasionally, organisations and individuals suggested other possible incentives to making financial contributions. For example, both groups suggested (i) offering loans or other ways of letting organisations make contributions over a period of time, and (ii) removing the threat of civil action against organisations that contribute.
11.83 However, alongside these suggestions, some organisations reiterated previous statements that small care provider organisations / local authorities simply have no funding available to make financial contributions towards the redress scheme. These respondents called for the Scottish Government to cover the full cost of the scheme. There was also a question about why the Scottish Government would introduce legislation to compel payments from organisations to fund redress when such payments can already be obtained through the civil court system.
Consequences for not contributing to the scheme (Q43)
11.84 Question 43 asked respondents if there should be consequences if those responsible for abuse do not make a fair and meaningful financial contribution to the redress scheme.
11.85 Table 11.4 shows that there was general consensus on this issue. Among those who answered the question, overall 97% said ‘yes’. Individual respondents were nearly unanimous in their views, with 99% believing that there should be consequences. Among organisations, a small number of local authority / partnership bodies and current or previous care providers answered ‘no’.
|Local authority / public sector partnerships||8||80%||2||20%||10||100%|
|Other public sector organisations||1||100%||–||0%||1||100%|
|Current or previous care providers||4||67%||2||33%||6||100%|
|Third sector, including survivor groups||5||100%||–||0%||5||100%|
|Legal sector organisations||2||100%||–||0%||2||100%|
|Other organisational respondents||1||100%||–||0%||1||100%|
|Total (organisations and individuals)||210||97%||6||3%||216||100%|
11.86 Respondents answering ‘yes’ to Question 43 were asked a follow-up question: ‘What might these [consequences] be?’ Altogether, 197 respondents (163 individuals and 34 organisations) provided comments. These figures included some who did not answer the closed part of the question. Individuals who offered comments without addressing the tick-box question generally said they did not understand the question or were unsure how to answer it. Organisations who commented without addressing the closed question usually stated that they had no comment to make, had decided not to answer the question, or they raised issues / concerns without directly addressing the question.
11.87 The follow-up question at Question 43 was directed towards those who answered ‘yes’ to the closed part of the question. However, some respondents who answered ‘no’ also offered comments. Thus, the following sections look at comments from those who agreed with consequences for those who do not make a fair and meaningful contribution, and those that disagreed, while a final section looks at other comments.
Agreement with consequences for non-payment of financial contributions
11.88 Amongst individuals, some simply emphasised that organisations needed to accept responsibility for abuse and acknowledge the serious lifelong impacts of abuse for victims. Individuals reiterated earlier comments about the importance of holding responsible organisations to account, and the role of financial contributions in this respect. There was a great deal of consistency in the views of individuals who commented more specifically on consequences for non-payment of financial contributions. This group repeatedly suggested that the consequences for non-payment of contributions by responsible organisations should involve (i) civil legal action, criminal prosecutions and / or penalties (fines or prison), (ii) ‘naming and shaming’ responsible organisations, and (iii) ‘punishing’ the organisation financially – by withdrawing any public funding they receive, revoking their charitable status, or closing the organisation down. In some cases, respondents suggested these in combination. Less commonly, individuals answered this question by calling for the confiscation of the organisation’s assets.
11.89 The comments of organisational respondents were considerably more diverse. The most common view (expressed by all types of organisation apart from ‘other organisational respondents’) was that legal action should be taken to enforce contributions by responsible organisations and / or that legislation should be in place to enable this. However, this group often raised caveats, concerns or other issues in their responses. Specifically, it was noted that:
- The question of what constitutes a ‘fair and meaningful’ contribution is still to be determined. Organisations which do not (or cannot) make such contributions should have the right of appeal.
- It is unclear how consequences could lawfully flow from anything other than a legal liability for abuse – established through litigation.
- Any legal action to obtain payments from organisations that refuse to pay will need to involve a financial assessment of the organisation’s assets and the impact on the organisation of making those contributions.
- It was unclear how the requirement to make financial contributions could be legally enforced if the responsible organisation was dormant or no longer in existence.
- The damage to the organisation was likely to be greater if they were forced to contribute through court action rather than contributing voluntarily.
11.90 The second most common view among organisations was that refusal to make contributions should be dealt with on a case-by-case basis. Some individuals also suggested this type of approach. The point was made that the organisation may be refusing to pay because it genuinely could not afford to so. In addition, it was noted that such an approach would be in line with the proposal to allow discretion in relation to the eligibility criteria for claimants to enable the unique circumstances of each survivor / applicant to be taken into account. It was suggested that the circumstances of these organisations should be examined to allow a decision to be made about what action to take. However, an alternative view favoured consistency of approach.
11.91 Less often, organisations suggested removal of the responsible organisation’s charitable status, withdrawal of funding, or ‘naming and shaming’ as consequences for non-payment of contributions.
11.92 Individuals and organisations suggested a range of other consequences (including consequences that were less ‘punitive’ in nature). In general, these were identified by just one or two respondents and included:
- Applying any waiver on civil court action built into the redress scheme design only to those organisations who make contributions
- Giving positive publicity to those organisations who do make fair and meaningful contributions
- Requiring organisations that do not make payments to appear before ‘an appropriate committee’
- Revoking any awards or affiliations the organisation or its management may have – for example Queen’s honours.
11.93 Finally, some individuals and organisations who answered ‘yes’ to Question 43 commented that the consequences of non-payment were not for them to determine. Some individuals in this group suggested that the Scottish Government, a judge, or ‘lawyers’ should decide.
Disagreement with consequences for non-payment of financial contributions
11.94 The follow-up question at Question 43 was directed towards those who answered ‘yes’ to the closed part of the question. However, some respondents who answered ‘no’ also offered comments. These included two local authorities and one care provider organisation who reiterated previous arguments about local authorities having insufficient funds to make financial contributions (in the case of local authorities) and the shared responsibility for historical abuse (in the case of the care provider). Within this group, the view was expressed that the language of Question 43 was unhelpful and adversarial, and that it was inconsistent with the principles of ‘partnership’ and ‘collaboration’ set out in the consultation paper.
Contributions to wider reparations (Q44)
11.95 Question 44 (an open question with no initial tick-box) asked for views on what contributions, in addition to contributions to the redress scheme, those responsible for abuse should make to wider reparations. The consultation paper outlined how care providers and relevant bodies in other countries such as Ireland and Australia had contributed to the funding of support services for survivors, and to the establishment of a trust fund for the benefit of former residents of children’s homes. It also noted that residential service providers and other professional groups in Scotland had previously indicated that financial redress should be viewed in the context of a broader reparation package which might include:
- Enabling supportive access to records
- Financial support for counselling sessions
- Signposting people to a range of relevant supports
- Tracing and unifying families
- Offering after-care support
- Individual sessions to promote reconciliation
- Individual apology
- Ensuring that victims / survivors are aware of the scrutiny that exists for present-day care services by current registration and inspection regimes.
11.96 Altogether, 192 respondents (149 individuals and 43 organisations) made comments at this question. The views expressed by both organisations and individuals indicated a general consensus that financial redress should be seen as part of a ‘package’ of measures, and it was common for respondents to endorse some or all of the options listed in the consultation paper. However, respondents had different views about the areas to which those responsible might be expected to contribute and in what way they might do so.
11.97 For the most part, individual respondents tended to give brief answers to this question. Some endorsed the suggested areas of wider reparation listed in the consultation paper, or suggested that the arrangements put in place in countries such as Ireland and Australia could provide pointers on this issue. Among those who commented more specifically, the main areas of concern related to (i) contributions to support services, (ii) provision of apologies, and (iii) action to ensure that those in care were properly safeguarded in the future. Each of these is discussed briefly below:
- Support services: There was a widespread view among individuals that care providers should contribute towards support services for survivors. There were frequent references to counselling, and psychological, therapeutic and mental health services, but respondents also referred to other areas of support such as employment, housing, welfare, and general financial assistance. Respondents saw an ongoing need for such support for victims / survivors and thought responsible institutions should contribute in this area. Individuals did not often make it clear how they thought this should be done in practice. However, those who raised this issue mainly referred to contributing to the funding of services provided by third parties, and some explicitly said that it was not appropriate for those responsible for abuse to provide support to survivors directly.
- Provision of apology: There were calls for care providers to issue apologies to victims / survivors and their families – some envisaged this as an individual personal apology while others referred to ‘public’ or ‘official’ apologies. For some, it was important that this was linked to an explicit acknowledgement of what had occurred and an acceptance of responsibility for the abuse that had taken place.
- Safeguarding those in care: Individuals often said they wanted to know that, going forward, children (or adults) in care were properly protected from abuse and provided with high-quality care and support. They thought organisations should be required to demonstrate adequate systems, and should be subject to robust regulatory, monitoring and scrutiny arrangements.
11.98 Other specific areas where those responsible for abuse might make contributions to wider reparations, mentioned less often, included (i) providing assistance with accessing records; (ii) providing the opportunity for face-to-face meetings; (iii) signposting to appropriate services or assisting with access to support; and (iv) funding of legal costs previously incurred by individuals (legal assistance for those making claims for redress is discussed elsewhere in this report – see Questions 29 and 30, Chapter 9).
11.99 Similarly, organisations endorsed the importance of a wider package of measures but had more diverse views on what responsible institutions should contribute and how that might best be done. Specifically, there was a difference between the views of care providers and those of other organisations.
- Care providers saw their role as being very much focused on ‘in kind’ contributions. They talked about assisting survivors with accessing records and tracing family members; offering apologies and acknowledgments to survivors; engaging with individual survivors to offer support and promote reconciliation; ensuring openness and providing information and reassurance on current procedures and practices; and signposting survivors to other organisations for further support and assistance. Some care providers described their current activity in this area and how this work would continue into the future.
- Other organisational respondents recognised the importance of this ‘in kind’ contribution, and some local authority respondents spoke of how they too were providing ongoing assistance with accessing records and providing support, including via social work services. However, this group of organisations were more likely to discuss the need for ongoing assistance and support services for survivors of the type discussed by individual respondents (counselling, social and welfare support, etc. – see paragraph 11.97, bullet 1). This was seen to be important to survivors and something that care providers should contribute toward, rather than provide directly.
11.100 However, organisations often discussed different models for the delivery and funding of a wider reparation package. As noted above, care providers largely discussed making ‘in kind’ contributions to wider reparations; in just one case did a respondent in this group refer to a financial contribution, suggesting the payment of a surcharge in respect of each redress award relating to each institution. In contrast, other types of organisations offered a range of comments and suggestions relating to the funding and delivery of wider reparations. For example:
- The most common view was that those responsible should provide funding for other organisations to deliver services to survivors. Some respondents said that any financial contributions should be made centrally and used to fund services at a strategic and coordinated level. In a few cases, respondents suggested that funding should be provided on an individual case-by-case basis.
- Some local authority respondents expressed concern about the financial implications for local authorities and argued that the Scottish Government should assume responsibility for funding services for survivors.
- Some respondents said that any financial contributions to wider reparations should be part of the overall financial contribution to the redress scheme and should not be treated separately. A few respondents referred to a ‘surcharge’ system, based on the volume of awards linked to abuse in their institutions.
- The need for transparency about contributions and funding arrangements was noted.