Various questions - Payment redress scheme for survivors of historical child abuse in care: FOI release

Information requested

You asked for the rationale, decision making behind:

1. Only above age 70 or terminally ill, any advice re: either real or perceived discrimination or human rights ECHR IMPACT upon those not fitting with said gateway.

2. The decision to not seek corroboration or police verification of disclosure to police as per criminal injury CICA which is already covered in extensive legislation, and the rationale and any law behind this.

3. Why myself or my peers were barred from any ‘consultation’ and I also request any all papers, legal guidance, emails, minutes meetings telephone calls and all of the file per se.

4. Why it’s restricted to ‘in care’ survivors, which is prescriptive to many genuine victims of child abuse as found by the courts in Scotland as none choose to be abused, nor can either consent or decide.

Your email of 25 May included further clarification as follows:

“As in broad terms, you have not taken a legal opinion if your choice elderly or terminally ill payments only is either compliant with equality act 2010 or ECHR legislation, or any explanation why those neither dying yet or over 70 are being in reality actively discriminated against.

As I requested the legal guidance and why your government are proscribing against victims of child abuse.

The second point is compliance with CICA fraud legislation as opposed to no merit test which again is extremely problematic and unfair to many.” 

Response

The rationale, decision making behind:

1. Only above age 70 or terminally ill, any advice re: either real or perceived discrimination or human rights ECHR IMPACT upon those not fitting with said gateway.

Our earlier response to you provided details of the rationale and criteria for the Advance Payments scheme. In your further clarification set out above, you indicate that you are seeking the legal guidance in relation to these criteria and equality legislation and the ECHR.

As a number of exemptions apply under FOISA to the information you have requested, I am unable to provide you with the relevant documents. Details of the specific exemptions are set out below:

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government’s policy on a statutory redress scheme. This exemption is subject to the ‘public interest test’.  Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption.  We have found that, on balance, the public interest lies in favour of upholding the exemption.  We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.  However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions.  This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications.  Their candour in doing so will be affected by their assessment of whether the discussions on the criteria for Advance Payments will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested.  This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice.  This exemption recognises the need for officials to have a private space within which to provide free and frank advice to other officials before the Scottish Government reaches a settled public view.  Disclosing the content of free and frank advice on certain legal aspects of the Advance Payment scheme will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive issue such as the provision of financial redress for survivors of historical child abuse in care. This exemption is subject to the ‘public interest test’.  We have found that, on balance, the public interest lies in favour of upholding the exemption.  We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.  However, there is a greater public interest in allowing a private space within which officials can provide full and frank advice to other officials, as part of the process of exploring and refining the Government’s policy position on financial redress until the Government as a whole can adopt a policy that is sound and likely to be effective.  This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken.  Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to all of the information requested because it is legal advice and disclosure would breach legal professional privilege. This exemption is subject to the ‘public interest test’.  We have found that, on balance, the public interest lies in favour of upholding the exemption.  We recognise that there is some public interest in release as part of open and transparent government, and to inform public debate.  However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

We expect to publish an Equality Impact Assessment for the Advance Payments Scheme in the coming months and would be happy to draw this to your attention.

2. The decision to not seek corroboration or police verification of disclosure to police as per criminal injury CICA which is already covered in extensive legislation, and the rationale and any law behind this.

We do not have any information that matches this request.

As set out in our earlier email to you the decision not to seek corroboration is grounded in the circumstances of those applying for Advance Payment, who will be elderly or terminally ill. As a result we did not consider it possible to require written evidence of abuse for Advance Payments because we know that the vast majority of survivors will not have any formal record of abuse.  Reporting of abuse was not common and, for those who did, they were often not believed. 

The legislation that underpins the CICA scheme is UK legislation that does not apply to the Advance Payment scheme. The Advance Payment Scheme operates as a devolved function of the Scottish Government making ex gratia payments. Operation of the Criminal Injuries Compensation Scheme is a function of the UK government where a greater burden of proof is applied. 

We are using common law powers to make Advance Payments, provided certain conditions are met.  Common law powers can be justified in limited circumstances, for example, where there is some urgency in the public interest (such as survivors not living long enough for the statutory scheme).  

The CICA and the operation of its scheme has been subject to a recent review, Compensation without re-traumatisation: The Victims’ Commissioner’s Review into Criminal Injuries Compensation, the results of which were published in January 2019 and are linked below.

https://s3-eu-west-2.amazonaws.com/victimscomm-prod-storage-clhgxgum05k1/uploads/2019/01/CIC-report-FINAL.pdf

The Advance Payments team considered the recommendations and results of this review when making recommendations regarding the Advance Payment Scheme.

The legislation for the statutory redress scheme is in the very early stages of being produced and a consultation to inform its development, which you will have the opportunity to participate in, will be launched later this year.

3. Why myself or my peers were barred from any ‘consultation’ and I also request any all papers, legal guidance, emails, minutes meetings telephone calls and all of the file per se.

We have no information that matches this request. The consultation in question was issued by CELCIS and we understand that you received the consultation by email but declined to contribute any views.

We can categorically assure you that neither you nor your peers have been barred from any Scottish Government consultation, indeed we will actively seek your views when we issue the consultation on the statutory redress scheme later this year.

4. Why it’s restricted to ‘in care’ survivors, which is prescriptive to many genuine victims of child abuse as found by the courts in Scotland as none choose to be abused, nor can either consent or decide.

The Advance Payment Scheme stems from, and is part of a broader Scottish Government response to, the SHRC InterAction Action Plan on Justice for Victims of Historic Abuse of Children in Care. http://www.shrcinteraction.org/Portals/23/Action-Plan-on-Historic-Abuse-of-Children-in-Care-Nov-2013.pdf This sets out a number of expected outcomes including investigation or inquiry, access to justice and reparation in relation to in care abuse.  The Scottish Government’s work on financial redress is a result of this report, alongside a number of other important developments which should be considered together.

In Care has remained a principle focus for the Government’s work. You will recall the Deputy First Minister clarified his understanding of “in-care” settings in his astatement to Parliament in 2016, and how this would relate to the Scottish Child Abuse Inquiry.  With some further adjustment to reflect the difference in purpose between the Inquiry and Redress schemes, the same broad approach to In Care has been adopted for the Advance Payments scheme, and for the same reasons:

“I have to ensure a remit that is deliverable within a reasonable timescale. I have concluded there is a clear distinction between 'in care' settings and 'non in care' settings. 'In care' settings are those where institutions and bodies had legal responsibility for the long-term care of children in the place of the parent, with all of the legal and moral obligations that status carries. That is different to the position in 'non in care settings', such as day schools and youth groups, where others had a duty of care on a short term basis but crucially were not replacing the role of parents.”

https://www.gov.scot/publications/scottish-child-abuse-inquiry-update-nov-16/ 

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