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.

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177 page PDF

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Contents
Financial redress for historical child abuse in care: consultation analysis
7. Stage Two evidence requirements and assessment process (Q16–Q23)

177 page PDF

1.5 MB

7. Stage Two evidence requirements and assessment process (Q16–Q23)

7.1 The consultation paper explained that Stage Two payments would be based on an assessment of applicants’ individual experiences of abuse and the impact it has had on their life. A set of eight questions sought views on issues related to the Stage Two process including the nature and extent of evidence that should be required, and how specific factors might be taken account in decision making.

Question 16: For Stage Two, what additional evidence of the abuse and of its impact should be required for the individual assessment?

  • Any existing written statement from another source which details the abuse [Yes / No]
  • Oral testimony of abuse and its impact [Yes / No]
  • Short written description of the abuse and its impact [Yes / No]
  • Detailed written description of the abuse and its impact [Yes / No]
  • Documentary evidence of impact of the abuse (from existing medical and / or psychological records) [Yes / No]
  • Documentary evidence of impact of the abuse (from new medical and / or psychological assessment) [Yes / No]
  • Supporting evidence of the abuse / impact from a third party. [Yes / No]

Question 17: Do you have any comments on evidence requirements for a Stage Two payment?

Question 18: Do you think applicants should be able to give oral evidence to support their application? If yes, under what circumstances might it be available?

Question 19: Do you have any views on whether the length of time in care should be factored into the Stage Two assessment? [Yes / No] If so, how?

Question 20: Do you have any views on the balance the assessment should give to different types of abuse (physical, emotional, sexual, neglect)?

Question 21: What are your views on which factors in relation to the abuse and its impact might lead to higher levels of payment?

Question 22: Do you think:

  • The redress payment is primarily for the abuse suffered [Yes / No]
  • The redress payment is primarily for the impact the abuse has had [Yes / No]
  • Both the abuse suffered and the impact it has had should be treated equally [Yes / No]

Question 23: How do you think the scheme should ensure all parties are treated fairly and that the assessment and award process is sufficiently robust?

Key points

  • Regarding the evidential requirements for a Stage Two application, there was a general view among respondents that different forms of evidence (as set out in the consultation paper) would be relevant and helpful in assessing a Stage Two application. Organisations were markedly more likely than individuals to support the use of third-party evidence (including existing or new medical and / or psychological records or any existing written statement from another source), whereas individuals were more likely than organisations to favour the use of oral testimony or a short written description of the abuse and its impact. There was also a mix of views on whether different types of evidence should be required or allowed, or used in combination for corroborative purposes, and where the balance should be struck between sufficiency of evidence and the need to ensure that the scheme was victim-centred, flexible and empowering.
  • However, there was a high level of agreement (95% and 88% for organisations and individuals respectively) that individuals should be able to give oral testimony in support of their application. Some said that giving such evidence should be a matter of choice for individuals, and could give victims / survivors a voice in the redress process, while others thought its use should be restricted to particular circumstances only, or particular types of claimants, such as those with low literacy levels or learning disabilities.
  • With regard to the assessment of claims, although some respondents said all cases should be treated the same, there was greater support for cases to be assessed in a ‘holistic’ way, taking account of all circumstances, and a range of factors (including length of time in care and nature of the abuse). A recurring view was that the impact of the abuse and the long-term loss and harm caused should be key in determining payments, although the difficulties in assessing this were also recognised.
  • The vast majority of respondents (94%) thought that both the abuse suffered and the impact it has had should be treated equally as factors in determining redress payments – these were said to be (i) both relevant, (ii) intertwined, or (iii) the same / indistinguishable.
  • Respondents thought that principles such as clarity, accessibility, efficiency and effectiveness were important to ensuring fair treatment of all parties and a sufficiently robust assessment and award process. Respondents also highlighted the need to treat parties fairly and with compassion, dignity and respect; to provide appropriate support for all applicants; to have appropriately experienced and skilled scheme staff and panel members; and adequate systems for monitoring and oversight and review and appeal.

Evidence for Stage Two (Q16)

7.2 Question 16 was a closed question, inviting views about the forms of evidence that should be required for a Stage Two payment – in addition to those required for a Stage One payment. The question offered seven options, and respondents were asked to tick ‘yes’ or ‘no’ in relation to each one.

7.3 Table 7.1 shows the number of respondents who answered ‘yes’ to one or more of seven options presented, as a proportion of those responding to any of the options. Overall, the proportion answering ‘yes’ in relation to each type of evidence ranged from 58% to 65% of all respondents. Organisational respondents were slightly less likely than individuals to indicate that oral testimony or a short written description of the abuse should be required as part of a Stage Two application. However, they were substantially more likely than individuals to think that certain types of third-party evidence should be required (including existing or new medical and / or psychological records or any existing written statement from another source).

Table 7.1: Q16 – For Stage Two, what additional evidence of the abuse, and of its impact, should be required for the individual assessment?
Respondent type Organisations Individuals Total
n % n % n %
(1) Any existing written statement from another source which details the abuse 28 76% 134 61% 162 64%
(2) Oral testimony of abuse and its impact 21 57% 143 66% 164 64%
(3) Short written description of the abuse and its impact 21 57% 141 65% 162 64%
(4) Detailed written description of abuse suffered and its impact 26 70% 140 64% 166 65%
(5) Documentary evidence of impact of the abuse
(a) Existing medical and / or psychological records 35 95% 129 59% 164 64%
(b) New medical and / or psychological records 30 81% 119 55% 149 58%
(6) Supporting evidence of the abuse / impact from a third party 27 73% 120 55% 147 58%
Base (number ticking any response at Q16) 37 218 255

At each of these questions a small number of respondents ticked both ‘yes’ and ‘no’. These have been excluded from both the numbers and percentages above.

Views on Stage Two evidential requirements (Q17)

7.4 Question 17 asked for any comments on the evidence requirements for a Stage Two payment. Altogether, 193 respondents (152 individuals and 41 organisations) commented. Respondents discussed a diverse range of topics – often expanding on their responses to Question 16 about whether certain types of evidence should be required as part of a Stage Two payment. The other main themes in respondents’ comments were (i) the difficulties of obtaining evidence about the nature and impact of abuse, (ii) the evidential threshold for a Stage Two payment and (iii) the process of assessing evidence. Each of these is discussed below

Views on the types of evidence required for a Stage Two payment

7.5 Several recurring points were made in relation to each of the types of evidence listed in Question 16. In particular, there was a broad consensus among respondents that all of the forms of evidence listed in Question 16 would be relevant and helpful in assessing a Stage Two application. At the same time, however, respondents also thought there should be no absolute requirement for victims / survivors to obtain certain types of evidence; instead they should be encouraged and given the support to provide these if they wished. Alternatively, it was suggested that the type of evidence required should be decided on a case-by-case basis. Respondents were concerned that, if certain forms of evidence were required, some victims / survivors would be unable to make a claim because the evidence was not (or was no longer) available. There were also concerns about the risk of retraumatising victims / survivors, especially if they were being asked to repeat evidence they had given elsewhere (such as at the Scottish Child Abuse Inquiry (SCAI)). Consequently, it was suggested that the collection of certain forms of evidence (and particularly the use of oral testimonies or written descriptions of abuse and its impact) would need to be victim-centred, and handled very sensitively, with appropriate support provided.

7.6 The forms of evidence discussed most often related to the use of oral testimonies, existing medical and psychological records and supporting evidence from a third party. Specifically:

  • Regarding oral testimonies, some respondents saw these as a preferred option for certain groups of victims / survivors (for example, those with low literacy levels who might find giving written evidence challenging). However, respondents suggested that a requirement to provide oral testimonies could feel (too) similar to court action and deter people from making Stage Two claims. (That said, there was also an alternative view that any oral evidence presented should be given under oath.) Occasionally, it was suggested that oral testimony should only be drawn upon if documentary evidence was unavailable, or that it might not be needed at all if such evidence had previously been presented to, for example, the SCAI or National Confidential Forum (NCF). Note that there was a common view at Question 18 that individuals should have the option to give oral evidence.
  • There were mixed views about the use of existing medical and psychological records as evidence of the impact of abuse. Some respondents supported this, but there were also reservations. Some referred to the ‘silencing effect’ of abuse, with victims / survivors often unable to tell professionals, or indeed anyone, about their experiences in care. In this context, it was argued that there may be no documented record of the abuse. It was also suggested that, even in cases where victims / survivors had disclosed their experience and its impact, this might not always have been recorded accurately. Other views, expressed occasionally, were that: (i) existing medical and psychological records might be used to back up oral or other forms of written evidence, and (ii) medical / psychological evidence should be provided by a consultant rather than a GP.
  • Regarding the use of supporting evidence from a third party, some respondents suggested that relatives or those close to the victim, ‘other appropriate adults’ and other individuals who were in care in the same institution were all possible sources of such evidence. Very occasionally, respondents queried what was meant by this type of evidence.

7.7 There was little comment in relation to the other forms of evidence listed in Question 16, and the following points were made by relatively few respondents:

  • Regarding new medical and psychological records, there were differences of opinion about whether these were seen as potentially important sources of evidence or whether a requirement to obtain these types of records would be unhelpful and risk retraumatising victims / survivors. Other points included that (i) all applicants should be given access to an independent assessment and (ii) such evidence should only be used if existing medical or psychological records were unavailable. Concerns about how this might be funded and the capacity of the NHS clinical psychology service to undertake assessments were also noted.
  • In relation to a short, written description of abuse and its impact, the points were made that the definition of ‘short’ is unclear, and that some applicants would find this traumatic to produce.
  • In relation to detailed written descriptions of the abuse and its impact, different respondents thought (i) such descriptions would be helpful and (ii) there should be the option for a third party to provide this on behalf of a victim / survivor. It was also suggested that a short statement of facts (i.e. who, what, when and where) should be sufficient.
  • In relation to drawing on existing written statements from another source, there was a view that this should not be required as it would already have been given at Stage One and therefore was not essential at Stage Two.

7.8 Some respondents suggested additional types of evidence that might support individual Stage Two assessments, although there was little consensus about these. Suggestions included evidence submitted to the SCAI or NCF; police statements or letters and telephone calls made to the police; court records and certificates of conviction; policy documents; local authority records; evidence of past and future loss of earnings (via an employment expert) and loss of pension (via an actuary); details of treatment costs; and physical injuries and scars.

7.9 Occasionally, organisations called for care providers to be able to submit statements, or other forms of evidence, or to have the opportunity to dispute evidence presented by the applicant.

Difficulties in accessing and providing evidence

7.10 Some respondents highlighted the potential difficulties of accessing / providing evidence about the nature of abuse and its impact – suggesting (as discussed in Chapter 6) that, in some cases, evidence was unavailable because records had been lost, or had never been collected. In addition, some made the point that evidence might also be unavailable because the victim / survivor had felt unable to talk about their experience.

7.11 Occasionally, respondents also discussed (i) the difficulty of obtaining corroborating evidence through third-party statements in cases where there had been no witnesses to the abuse and (ii) the possibility of the abuse having been covered up by authorities.

Views on the evidential threshold

7.12 Organisations were more likely than individuals to comment on the evidential threshold for the Stage Two redress payment. In general, there was a view that this should be higher than at Stage One but also that a balance needs to be struck between the sufficiency of evidence and the need to ensure that the scheme remains victim-centred, flexible and empowering, and avoids further traumatisation of victims / survivors.

7.13 Some respondents suggested that more than one type of evidence should be required for reasons of corroboration. Others said that as many forms as evidence as possible should be used, or argued that a requirement for multiple sources of evidence would help to prevent fraudulent claims. Very occasionally, respondents said that all the forms of evidence noted should be required.

7.14 Occasionally, respondents gave examples of evidential approaches used in other contexts, including the European Court of Human Rights for pecuniary awards (‘a clear causal link between violation, abuse and impact) and non-pecuniary awards (‘evident trauma’). There were also suggestions that: (i) a lower threshold of evidence should be required for applications relating to establishments already known to have failed to protect children; (ii) greater weight should be given to contemporaneous evidence of abuse (i.e. evidence created at the time of the abuse such as medical records of injuries, etc.); and (iii) a ‘balance of probabilities’ (rather than ‘beyond reasonable doubt’) approach to standards of proof might be appropriate. However, the point was also made that the use of a lower standard of proof for the redress scheme could affect the ability of organisations to seek indemnity under any existing insurance policy.

Views on the evidence assessment process

7.15 Respondents also made a range of comments about the need for the evidence gathering and assessment process to be ‘fair’, ‘clear’, ‘quick’, ‘straightforward’ and ‘cost-effective’. Some advocated the use of guidelines; others simply suggested that steps should be taken to ensure the validity of claims.

Provision for oral testimony (Q18)

7.16 The consultation paper noted that in some redress schemes in other countries, oral hearings have only been used in certain circumstances – for example when a case was complex and could not be resolved based on documentary evidence or when a payment offer was rejected by the applicant. However, findings from the 2017 survivor consultation indicated that victims / survivors thought an applicant should be able to give oral testimony of abuse and its impact if they are unable to provide documentary evidence. Question 18 invited views on this issue.

7.17 Table 7.2 indicates that there was a very high level of agreement among respondents that applicants should be able to give oral evidence to support their application – overall, 89% answered ‘yes’, with a similar pattern of response among individuals and organisations.

Table 7.2: Q18 – Do you think applicants should be able to give oral evidence to support their application?
Respondent type Yes No Total
n % n % n %
Local authority / public sector partnerships 10 100% 0% 10 100%
Other public sector organisations 4 100% 0% 4 100%
Current or previous care provider 8 89% 1 11% 9 100%
Third sector, including survivor groups 7 100% 0% 7 100%
Legal sector organisations 5 83% 1 17% 6 100%
Other organisational respondents 3 100% 0% 3 100%
Total organisations 37 95% 2 5% 39 100%
Individual respondents 193 88% 26 12% 219 100%
Total (organisations and individuals) 230 89% 28 11% 258 100%

Two individuals ticked both ‘yes’ and ‘no’ to this question. These responses are not included in the table above.

7.18 Respondents who answered ‘yes’ at Question 18 were asked to comment on the circumstances in which oral evidence might be used to support a Stage Two application. Altogether, 204 respondents (164 individuals and 40 organisations) provided comments. This includes some who answered ‘no’ to the closed question. The views of this latter group are presented below following a summary of respondents’ comments about when oral evidence should be used to support an application.

The use of oral evidence for a Stage Two application

7.19 Respondents identified several situations in which it might be appropriate for oral testimony to be used to support an application for financial redress.

7.20 The most common two situations were (i) in cases where there might otherwise be a lack of evidence (for example, as a result of missing documentation, medical records or other types of documentary evidence) or (ii) in especially complex cases. In these kinds of cases, respondents thought oral evidence could be used either to supplement other evidence or, in some cases, as the main source of evidence. However, respondents emphasised that the use of oral evidence should be a choice and not compulsory.

7.21 Respondents generally saw oral evidence as an opportunity for victims / survivors to tell their stories, to speak out about the abuse, explain its impact, to be listened to and believed. The use of oral evidence would also enable an individual to explain why it may not have been possible to provide other sources of (documentary) evidence. The point was made that, although giving oral evidence might be traumatic for some applicants, others might prefer to speak about their experience rather than to write it down. Thus, respondents thought this option should be available to all. Some also expressed the view that oral evidence could be more effective and more powerful than written evidence.

7.22 Respondents also often suggested that oral evidence might be particularly appropriate for certain applicants – including those with low levels of literacy or learning disabilities – who might find it difficult to provide written statements. Occasionally, respondents suggested that, for certain applicants, there should be the option for oral evidence to be given by a relative on behalf of the applicant.

7.23 Although there was broad support for victims / survivors having the option to give oral evidence, some respondents offered an alternative view, arguing that oral evidence should only be used in certain circumstances, such as in cases where there is a lack of documentary evidence, where further evidence is needed, or in cases that are complex or cannot be resolved in any other way. Respondents in this group also suggested that the use of oral evidence should be avoided if possible or used primarily to supplement existing evidence. Occasionally, respondents suggested that the use of oral evidence should only be allowed at the review and appeal stages of an application.

7.24 As previously discussed in relation to the evidential requirements for Stage One and Stage Two applications, respondents thought some victims / survivors may need support to give oral evidence and to participate in the application process effectively. This could involve, for example, the use of legal representation and/or the presence of family and friends, counsellors, support workers and specialist psychologists to minimise the risk of additional harm or trauma.

7.25 Occasionally, respondents suggested that those who have already given oral evidence in other settings should not have to do so again and that, rather than risk further trauma, the redress scheme could use this existing evidence (e.g. statements made to the SCAI, solicitors and the police, or records of discussions with psychologists or within support group sessions).

7.26 In a few cases, respondents expressed views about how the giving (and receiving) of oral evidence might work in practice. For example, they thought that those taking oral evidence should be appropriately skilled and experienced to reduce the risk of further harm to those giving evidence. Respondents who raised this issue emphasised the need for a non-adversarial, ‘victim-led’, ‘empathetic’, ‘compassionate’, and ’sensitive’ process. A range of other suggestions were made, including that oral evidence should be given (i) in a safe, appropriate and neutral venue, (ii) via video link or in private, (iii) to a small panel, or (iv) as a one-to-one interview. Respondents sometimes also suggested the need for evidence to be recorded and verified and / or for it to be given under oath.

Views opposed to the use of oral evidence for a Stage Two application

7.27 Table 7.2 showed that only a small minority of respondents (mostly individuals) thought that applicants should not be able to give oral evidence to support their application for redress. However, the comments made by this group suggested that some felt that oral evidence might still be appropriate in certain circumstances. For example, some indicated that this should be at the discretion of the individual, decided on a case-by-case basis, or considered where there was a lack of written evidence.

7.28 However, in general those who did not support the use of oral evidence raised concerns about the ability of individuals to give this type of evidence, its suitability as a form of evidence (given the possibility for trauma), and how the oral evidence process might be managed (for example, who would take the evidence, the need for a video link option and ensuring the separation of the victim from the abuser), and whether oral evidence from other sources (such as police statements) could be used. These views suggest that at least some of the respondents in this group thought oral evidence should not be compulsory, rather than not be allowed at all.

Stage Two assessment – length of time in care (Q19)

7.29 The consultation paper noted that Stage Two payments would require an assessment of an individual’s experience of abuse and the impact this has had on them. It also noted the difficulty of assessing impact given that individuals can have very different responses to similar abusive experiences. The consultation paper stated the intention for the Stage Two assessment process to take account of – in a ‘consistent, fair and transparent way’ – a range of factors. The previous survivor consultation considered relevant factors to include length of time in care, type of abuse, frequency and severity of abuse, impact of abuse, and loss of opportunity resulting from abuse and its impact.

7.30 Question 19 asked respondents if they had any views on whether the length of time in care should be factored into the Stage Two assessment. This was a closed question requiring a yes / no response. As the wording of the question was somewhat ambiguous, and respondents’ comments clearly indicated different interpretations of the question, the quantitative findings are not presented in table format.[6] However, the balance of opinion (based on the responses to the closed question and the qualitative comments provided by respondents) suggested there was general support for length of time in care being factored into a Stage Two assessment.

7.31 Altogether, 191 respondents (150 individuals and 41 organisations) offered comments at Question 19. The views of those expressing support for time in care being considered as a factor in the Stage Two assessment are discussed first, followed by the views of those expressing opposition to this.

7.32 Note that respondents did not necessarily distinguish between ‘length of time in care’ and ‘duration of abuse’ when addressing this question, although occasionally they explicitly stated that they understood these two things not to be synonymous.

Support for length of time in care as a factor in a Stage Two assessment

7.33 Among those who supported time in care being factored into the Stage Two assessment, the main reason given was that there is likely to be a link between the length of time spent in care and the extent of abuse or degree of suffering that individuals were exposed to. Respondents generally thought that the longer the time spent in care, the greater the likely impact, both at the time and in the longer-term. Although impact was most often discussed in terms of the abuse experienced, respondents also highlighted the consequences of being exposed to abusive behaviour directed towards others, and the institutionalisation of those in long-term care.

7.34 Some respondents argued that the extent to which time in care was an important factor in determining the impact of abuse would depend on the circumstances of the case, and that it should not be considered in isolation but alongside the nature, type and severity of abuse and injuries suffered. Occasionally, respondents suggested that the length of time in care was particularly relevant for those subjected to persistent, long-term abuse.

7.35 There was a range of views about how length of time in care might be factored into the redress scheme. Some respondents suggested, for example, that there should be no minimum time spent in care, while others proposed minimums ranging from three weeks to 18 months. There were also occasional references to the need to consider time in care cumulatively as some children moved care setting frequently and may have been in certain care services for only a short time.

Opposition to length of time in care as a factor in a Stage Two assessment

7.36 Less often, respondents thought that length of time in care should not be factored in. Among this group, the most common perspective was that ‘abuse is abuse’, regardless of the time spent in care, and that all survivors should be treated equally. There was also a clear view that serious abuse and harm could occur within a very short period of time. In this context, the circumstances of children who were in care in Scotland for a short time but subsequently sent into long-term care settings overseas were highlighted.

7.37 As mentioned above, respondents occasionally stated explicitly that the period in care and the duration of abuse should not be seen as the same and that, if there were to be any consideration of time, it should relate to the duration of abuse.

7.38 Among those who did not support length of time in care being factored into the Stage Two assessment, the second most common view was that the extent of the impact of abuse on an individual’s life should be seen as a more important consideration. Respondents in this group argued that abuse taking place over a short period of time could be as traumatic and detrimental to an individual as long-term abuse. Some noted that individuals with similar abuse experiences can have very different outcomes and, therefore, that the impact of abuse is the most relevant factor to any assessment.

7.39 Organisations in this group thought that, while time in care should not be a stand-alone determinant of the Stage Two payment, it could nevertheless be a useful factor to consider in certain cases (for example, in the absence of other evidence). In general, organisations thought that the severity of the abuse suffered and the impact it had on the individual should have higher priority than length of time in care when assessing a Stage Two application. The point was made that this issue should be considered in light of the scheme’s purpose of providing redress for abuse suffered, not for time spent in care.

Stage Two assessment – different types of abuse (Q20)

7.40 Question 20 was an open question asking respondents for views on the balance the assessment should give to different types of abuse (physical, emotional, sexual and neglect). A total of 235 respondents (193 individuals and 42 organisations) commented.

7.41 The most common view was that Stage Two assessments should treat all types of abuse equally. Those expressing this view did not wish to see a system in which certain types of abuse are considered ‘worthy’ of a higher payment than others. However, the alternative view was that a grading or tariff type system would be helpful and that certain types of abuse should be prioritised over others. Both these perspectives are discussed below.

Views supporting all types of abuse being treated equally

7.42 By far the most common view in responses from individuals was that all forms of abuse should be treated equally. Again, the phrase ‘abuse is abuse’ was used frequently. This group repeatedly argued that the impact of abuse is more important, or that there is often no clear correlation between the type of abuse suffered and the level of impact. Many different types of impact were referred to including physical injuries, long-term health problems (both physical and mental), low self-esteem, relationship problems, loss of earnings, and general life challenges.

7.43 The second most common view amongst individuals was that it was difficult or impossible to disentangle different types of abuse. For example, physical and sexual abuse were seen, almost inevitably, to involve emotional abuse. A link between neglect and emotional abuse was also identified. Furthermore, some pointed out that there can be varying degrees of seriousness within each type of abuse, and that no meaningful ranking or grading of types of abuse is therefore possible.

7.44 Like individuals, organisations were generally reluctant to support a system of redress which prioritised one type of abuse over another. This was primarily because other factors – such as the nature and severity of the abuse, injuries suffered, time in care and extent of impact on an individual’s life (for example, on their mental health) – were seen as being of more relevance. All types of abuse were seen to cause harm and to affect individuals differently. Some organisational respondents did indicate that sexual abuse is more serious but did not explicitly say it should be given higher priority within the assessment process. In addition, there was a view that separate payments should be made for the abuse suffered and the impact it has had on an individual.

7.45 Assessing the experiences and impact of different types of abuse was seen to be difficult and some respondents argued that adopting an approach which attempted to do so (for example, though a tariff system) would risk marginalising or minimising the experiences of particular victims / survivors. Some organisations highlighted the need for highly skilled professionals to be involved in assessments if type of abuse was to be considered as a factor. Emotional abuse and neglect were seen by some as more difficult to assess than sexual and physical abuse. Some suggested that each case should be dealt with on its own merits.

Views supporting a distinction being made between different types of abuse

7.46 Support for a distinction being made between the different types of abuse in Stage Two assessment was not common, and was largely restricted to individuals, who said that the form of abuse should be considered alongside other factors, such as duration and severity of abuse.

7.47 However, amongst those who supported this distinction, sexual abuse was usually identified as the most serious (‘highest’, ‘worst’, or ‘most traumatic’) form of abuse. These respondents advocated a ranking system in which sexual abuse was placed first out of the four types. In addition, sexual abuse was seen to be the most damaging in the long-term for individuals, creating complex psychological problems which were considered difficult to overcome even in adulthood.

7.48 Amongst individual respondents who referred specifically to emotional abuse, there were mixed views. Some argued that emotional abuse (i) should be considered the most serious form of abuse or (ii) could have the most significant long-term impact. However, others argued that it was too subjective a concept and should be given less weight than either sexual or physical abuse.

7.49 Occasionally, respondents referred specifically to physical abuse, with some highlighting the long-term trauma associated with this and others ranking it second or third out of the four types of abuse. It was also unusual for respondents to offer specific views about neglect, with those who did arguing it was too subjective, and / or should be given less weight than physical and sexual abuse or all other forms of abuse.

7.50 Some individuals indicated that they were unsure about the balance the assessment should give to different types of abuse and stated a preference for dealing with applicants on a case-by-case basis.

Factors which might lead to higher levels of payment (Q21)

7.51 Question 21 was an open question which asked for views on the factors – relating to the abuse and its impact – that might lead to higher levels of redress payments. Altogether, 210 respondents (170 individuals and 40 organisations) commented.

7.52 A minority of respondents (around a fifth) thought that all cases should be treated equally. However, it was far more common for respondents to say different factors should be taken into account in determining higher levels of payment. The main factor identified was the impact of abuse. Less often, respondents discussed other factors which they thought should be considered (such as length of time in care, length of time over which abuse occurred, severity and type of abuse). These views are discussed below. Note that there was considerable overlap between the comments made in response to Question 21 and those already reported for Questions 19 and 20 above.

Impact as a factor which might lead to higher levels of payment

7.53 There was widespread agreement among respondents that the impact of abuse should be a factor that might lead to higher levels of payment in relation to Stage Two. In some cases, respondents considered this to be the primary factor; others thought that impact should be considered alongside other factors.

7.54 Some respondents simply made general statements to say that the extent of the impact of abuse was an important, and sometimes the most important, consideration when looking at levels of payment. Respondents often highlighted the overall long-term, and sometimes irreparable nature of the impact of abuse which, they said, could last into adulthood. Other respondents highlighted detailed specific types of impact, including:

  • Mental health, emotional or psychological damage (including depression, suicide and self-harm)
  • Physical injuries and disabilities
  • Difficulties with personal relationships and family life
  • Restricted employment opportunities, and low earnings
  • Poor social functioning (including being unable to feel part of a community or establish friendships, having a lack of life skills and impaired decision-making)
  • Education and academic underachievement (as a result of disrupted education)
  • Low self-esteem, self-confidence and self-respect
  • Poor health (unspecified)
  • Substance misuse and addiction.

7.55 Occasionally, respondents referred to impact in terms of loss, both to the individual and to the family – for example, loss of opportunity, liberty and human rights, or financial or emotional loss.

7.56 Although there was strong support for the impact of or loss resulting from abuse in care being considered in determining payment, some respondents highlighted the challenges of assessing and measuring impact. An example was given in relation to the visibility of impact – where long-term physical damage may be easier to evidence than emotional damage.

Other factors which might lead to higher levels of payment

7.57 Less often, respondents identified other factors which might lead to higher levels of payment. The points made generally reiterated those made at Questions 19 and 20, discussed above, and related to:

  • Length of time over which the abuse took place: Some respondents suggested this was particularly relevant as a factor in determining payment level if the abuse was of a sustained and systematic nature.[7]
  • Severity of abuse and type of abuse: Respondents again referred to the four main types of abuse (discussed at Question 20) – physical, sexual, emotional and neglect – and argued that sexual abuse was the most serious and likely to have the greatest impact, and thus should attract a higher level of payment. Occasionally, respondents said that higher payments were appropriate for those who suffered multiple forms of abuse.

7.58 Reference was made to Article 41 of the European Convention on Human Rights on ‘Just Satisfaction’ and the principles of pecuniary and non-pecuniary damage which suggest that seriousness, impact and duration of abuse would be relevant factors, along with age and any protected characteristics, and the capacity of the state to respond.[8]

7.59 Other factors mentioned occasionally were frequency of abuse; acknowledgment of abuse by the institution; whether the institution knew about the abuse at the time and failed to act to stop it; age at which the abuse began; number of care placements a child was in; relationship between the abused and the abuser; grooming, victimisation, intimidation, etc; and level of trauma experienced before going into care.

Views on the process of considering factors for higher payments

7.60 Although asked to identify factors that might be considered for higher payment, some respondents (mainly organisations) offered additional comments on how the assessment process might work and concerns they had about this. Some suggested that it would be helpful if the Scottish Government referred to redress schemes in other jurisdictions and developed a system in line with other schemes or the court system. Very occasionally, respondents indicated that the approach suggested by the question was overly simplistic and that assessment of different factors would be very difficult; or that assessments would need to be based on evidence.

Main purpose of the payment (Q22)

7.61 Question 22 asked respondents whether they considered the redress payment to be primarily for (i) the abuse suffered, (ii) the impact the abuse has had, or (iii) both equally. The first part of the question presented the three options and asked respondents to select ‘yes’ or ‘no’ for each option. However, the design of the question meant that respondents could select ‘yes’ (or ‘no’) for more than one option. Because the question did not, therefore, require individuals to choose a single option, the percentages choosing ‘yes’ across the three options do not sum to 100%.

7.62 Table 7.4 shows that the vast majority of respondents (94%) thought that both the abuse suffered and the impact it has had should be treated equally as factors in determining redress payments. Although the overall pattern of responses was similar for individuals and organisations, organisations were somewhat less likely than individuals to support equal treatment of abuse and impact (86% compared with 95%), and somewhat more likely to say that the impact of the abuse should be the primary factor in determining payments (11% compared with 4%).

Table 7.4: Q22 – Do you think…
The redress payment is primarily for abuse suffered
(Option 1)
The redress payment is primarily for impact of abuse
(Option 2)
Both abuse suffered and impact should be treated equally
(Option 3)
Total
Respondent type n % n % n % n %
Organisations 1 3% 4 11% 31 86% 36 100%
Individuals 2 1% 9 4% 204 95% 215 100%
Total (organisations and individuals) 3 1% 13 5% 236 94% 251 100%

Altogether, 260 respondents ticked at least one of the boxes at Question 22. Of these, five ticked only ‘no’ and another four ticked both ‘yes’ and ‘no’ to one or more of the options offered. These nine respondents have been excluded from the analysis shown in Table 7.4, which is based on the 251 respondents who ticked ‘yes’ (and only ‘yes’) to one or more of the three options.

Sixty-nine respondents ticked ‘yes’ to two or more options offered (i.e. Options 1 and 2, Options 1 and 3, Options 2 and 3, or all three options). For the purposes of this analysis, these 69 respondents have been treated as having selected Option 3 only.

7.63 Altogether, 198 respondents (158 individuals and 40 organisations) commented at Question 22. The sections below present the views of those supporting each of the options presented. A separate section looks briefly at additional points made by those who provided comments but did not indicate clear support for any of the options offered in the question.

Support for Option 3: Equal treatment of abuse suffered and impact

7.64 As shown in Table 7.4, there was a very high level of support for the option of treating abuse suffered and its impact equally (Option 3) – although whether this was ‘equally’ in terms of process or financial outcome is not entirely clear. Among those selecting this option, there was a general view that both abuse and impact were relevant and important to the redress process, with both causing suffering and affecting victims / survivors in significant ways. Individuals in particular often said that abuse and impact were inherently interlinked (with abuse inevitably impacting on individuals, and impacts only occurring because of the original abuse); some also said that abuse and impact were the same, or said it was not possible to draw a distinction between them.

7.65 Although the selection of Option 3 indicated that respondents thought that abuse suffered and impact should be treated equally, comments tended to focus on the treatment of impact. Respondents, particularly individuals, highlighted the very wide-ranging, long-lasting and severe nature of the impact of abuse (with some describing their own experiences) and called for a redress system that recognised the very individual nature of abuse and its impact. Across the comments, respondents stressed the importance of treating victims / survivors as individuals; recognising that all cases and experiences are different, and that the impact of abuse can manifest itself differently in different people; and of the redress process taking account of the full circumstances of each case. However, the challenge of assessing impact, and the role of ‘evidence’ in that was raised by some respondents.

7.66 In a few cases, individuals said that all victims / survivors should be treated equally, or the same.

7.67 Occasionally, respondents offered slightly different types of comments. Some organisations stated that they selected Option 3 because they understood that the purpose of the proposed two-stage process was to recognise both abuse (Stage One) and impact (Stage Two), while some individuals talked more generally about the ‘purpose’ of the redress scheme (as covered in Question 1 – see Chapter 3).

Support for Options 1 and 2: Differential treatment of abuse and impact

7.68 As indicated in Table 7.4, there was very limited support for either Options 1 or 2. Those selecting Option 1 thought it would be too complicated to assess impact, or that all victims should be treated the same, regardless of impact. Those selecting Option 2 said that both elements were important but emphasised the life-long and far-reaching nature of the impact of abuse. Additionally, some organisations selecting Option 2 referred to the proposed two-stage payment system. They saw Stage One as providing redress for abuse suffered and Stage Two as providing redress for the impact of that abuse. As they interpreted Question 22 to be asking about the purpose of Stage Two payments, they selected Option 2.

Views of those who did not select an option

7.69 A few of those providing comments did not complete the closed part of the question or only ticked ‘no’ at one or more the options. These respondents did not generally offer additional substantive points about the relative balance between redress for abuse suffered and redress for the impact of that abuse. In some cases, however, they noted the difficulty of assessing impact, and expressed concern about how payments linked to impact might be perceived by survivors receiving different awards. The point was also made that, whilst it was important to take account of both the abuse suffered and the impact of that abuse, it was not appropriate for these two broad concepts to form the basis of a payment system. Instead it was suggested that redress payments should be based on damages linked to specific impacts directly attributed to the abuse in individual cases (reflecting both the Van Boven principles in international human rights law[9] and European Court case law).

How to ensure fairness in assessment and award processes (Q23)

7.70 Question 23 asked for views on how the scheme should ensure fair treatment of all parties and a sufficiently robust assessment and award process. This was a single-part open question (i.e. there was no initial tick-box for respondents to complete). Altogether, 204 respondents (161 individuals and 43 organisations) answered this question. However, more than a tenth of the individuals who responded did not offer any substantive comment, saying that they did not know, were not sure, did not feel qualified to comment or did not understand the question. Such responses are not considered further in the analysis below.

Ensuring a fair and robust scheme

7.71 Those respondents who did offer substantive comments expressed a range of views on how the scheme might ensure fairness and robustness, with the following main themes identified: general principles, the treatment of parties, monitoring and oversight, staffing and panel membership, and appeal procedures, as discussed below. Respondents also offered more procedural comments, and these are presented in a separate section.

  • General principles: There was a wide range of calls for the scheme to be clear, open, transparent, thorough, independent and consistent in its approach and operation, and to be accessible to all, including those with special needs. Respondents emphasised the importance of geographic accessibility as well as accessibility of scheme rules, proceedings, documentation and materials. Comments often reflected aspects of the proposed ‘guiding principles’ for the scheme as set out in the consultation paper (Part 1.1), and sometimes made direct reference to these. One organisational respondent called for a ‘rights-based approach’ to be adopted.
  • Treatment of parties: Respondents were keen that applicants were treated fairly (or equally), compassionately and with dignity and respect. Some stressed the importance of victims / survivors being listened to, being treated as individuals, and being assisted and supported throughout the claim process. Case communication was also seen as important, with some stressing the need for clear information to be provided on the reasons for the final claim outcome. Some noted that all parties should treated fairly and given the opportunity to be heard.
  • Staffing and panel membership: Respondents noted the importance of ensuring that all those involved in the operation of the scheme had appropriate experience, knowledge and skills (both professional and interpersonal) and were trained to deal with victims / survivors and their claims in a sensitive, supportive, impartial and non-judgemental way. Respondents also wished to see adequate resourcing and appropriate guidance, supervision, and team-working to assist in achieving consistency of approach across the work of the scheme. The importance of having panel members from different disciplines and backgrounds was noted.
  • Monitoring and oversight: There were various calls for both internal and external monitoring and oversight of scheme operations. Respondents wished to see internal oversight and challenge, as well as external scrutiny and inspection. There was a range of suggestions for independent review bodies or reference panels which could undertake activities such as regular monitoring of activities, auditing of cases, or gathering participant feedback.
  • Appeal / review procedures: Respondents, organisations in particular, said it was important for the scheme to have an appeal or review process for survivors dissatisfied with the assessment and award made in their case, or for those implicated in cases. A complaints procedure was also mentioned.

7.72 The importance of involving survivors in the design, running and ongoing monitoring and review of the scheme was also noted.

Procedural issues

7.73 As noted above, it was common for respondents to give views on specific aspects of scheme procedures in their answers to Question 23. More than a third of individuals made comments of this type (in most cases only making comments of this type). These comments related to issues such as evidential requirements, the factors to be considered in assessing claims and the relative weight to be given to different types of abuse, the extent of abuse suffered and the impact of that abuse. Comments indicated that respondents saw the treatment of these issues as important to the fairness and robustness of the scheme. The points raised are described briefly below, but respondent views are addressed more fully in relation to other consultation questions.

7.74 The main themes in comments from individuals included the following:

  • There was a range of views on evidential requirements, with some arguing for limited or basic evidence requirements and no scrutiny, and others calling for the use of interviews, expert testimony and corroboration.
  • In terms of assessment of claims, most individuals argued for an approach which took full account of all circumstances, the extent of suffering and any ongoing impact, although a few called for all cases or individuals to be treated ‘equally’ or ‘the same’. There was also some concern that the assessment process should not disadvantage those who had kept their experiences to themselves or treat some types of abuse as more serious than others.
  • On payments, some individuals argued for fixed standard payments for all, while others endorsed the use of a two-stage process, or expressed support for case-by-case assessment or varying forms of graded payment systems – including tariff systems – which would take account of all aspects of abuse and its impact.

7.75 Organisations touched on similar issues but were more likely to call for:

  • The process to be fair to all parties
  • Appropriate evidential requirements for claimants and the opportunity for evaluation, scrutiny and response or challenge for implicated institutions and other agencies
  • Clarity on payments, including via a tariff system.

7.76 Organisations representing the local authority sector raised the implications (financial, legal and insurance related) for local authorities and called for these to be considered in the development of the scheme.

7.77 Other points, raised by one or two respondents only, related to issues such as case management, timeframes for processing claims and the treatment of other payments.

Other comments

7.78 In a few cases individuals did not offer their own views at Question 23 but said that ensuring fairness and robustness was a matter for others – for professionals, experts, the Scottish Government and other agencies – or that it was not possible to comment without knowing more about the proposed scheme. Occasionally, individuals indicated satisfaction with or confidence in the way the scheme was being developed.

7.79 Organisations also sometimes said it was hard to comment without knowing the detail of how the scheme would operate, or that ensuring robustness and fairness should be a role for the body charged with setting up the scheme.

7.80 Finally, some respondents, organisations in particular, suggested that existing schemes and systems could provide pointers on ensuring fairness and robustness, with reference made to the SCAI, the already operational Advance Payment Scheme, current practice and recent reforms in the court procedures, other redress / compensation schemes and approaches in this and other fields (including the Criminal Injuries Compensation Authority, Lambeth redress scheme, the UK mesothelioma compensation scheme, and European Court of Human Rights case law).


Contact

Email: redress@gov.scot