COMPLEX NEW LAW FOR SURVIVORS OF CHILD ABUSE TO CLAIM COMPENSATION

Spotlight, a successful and revealing investigation about clerical child abuse in the US.

By Bill Heaney

Making laws designed to compensate survivors of terrible child abuse in church, local authority and privately-run care homes has become ensnared in red tape and legal complexities.

Making claims for compensation for their suffering has been anything but straightforward for abuse survivors and this became clear from the lengthy debate on the subject in the Scottish Parliament this week.

Tory Jamie Greene, left,  told MSPs the new scheme would be be starting from scratch and it would “inevitably have teething problems”.

He added: “We should ensure that the bill addresses and pre-empts as many of those as possible.”

He instanced one area of complexity: “I have raised concerns about the risk of applicants for redress payments entering fee-paying arrangements with legal advisers that will be neither covered nor funded by the scheme and having to pay the resulting legal fees from any redress payments.

“Some of those issues have been addressed but, in my view, applicants should be encouraged to make informed decisions and to get independent legal advice on their decision making.

“That is important because it will give them the autonomy that they need to make decisions for themselves on all aspects of the redress scheme as they go through the journey.

“Whether that is achieved through people choosing their own solicitor or through people accepting an offer of assistance from the Government, there is a balance to be struck between wanting and encouraging applicants to make use of the support of independent advice that is available under the scheme and helping people to make informed choices that are best for them.

“I respect the fact that, ultimately, those choices are for individuals to make, but many of them will be in vulnerable situations, with traumatic experiences to recount and recall. The very experience of going through the scheme might be difficult for many.”

Mr Greene said he had placed amendments to the draft bill which would place a duty on the Scottish ministers to use their best endeavours to ensure that all individuals who are applying to the scheme or are considering doing so will make informed choices with regard to their applications.

A second amendment would require ministers to prepare and publish a “summary of options”,  including the funding for legal advice that is available under the scheme; and any alternative routes that are available to them outside the scheme.

He added: “That approach is similar to the approach in the “Victims’ code for Scotland”, which has proved to be very helpful in our criminal justice system. Further amendments in the group will ensure that the information is available to applicants at each step of the process.

“The statement must detail the options and the support and assistance that are available to people, and it must give guidance and advice on making, pausing and withdrawing an application; on accepting an offer of a redress payment, including the timescales for doing so; importantly, on the effect of signing a waiver and on requesting a review of a determination by redress Scotland in the event that someone is unhappy with the offer that is made.

“The statement must go on to state the importance of obtaining independent legal advice, specifically before the applicant accepts the offer of a redress payment or signs a waiver.”

An additional amendments would lead to improved the information on the choices and support that will be available to applicants.

They would also place a duty on the new organisation that will be set up—redress Scotland—to include in its annual report an assessment of whether it believes that applicants have had ample opportunities to make informed choices.

And create a power for redress Scotland to make specific recommendations in that regard that future Governments must have regard to.

“The Scottish ministers will be under a duty, when reviewing the summary of options, to have regard to recommendations that redress Scotland has made in its annual report, Mr Greene said.

He added: “Taken together, my amendments should reduce the risk that applicants will make decisions without obtaining proper independent advice and support that is provided either by the scheme or elsewhere.”

Labour MSP Daniel Johnson said: “The bill is inherently complex and the subject matter has been difficult for many of us to deal with, but it is hugely important …  it is critical that, in seeking compensation through the scheme, individuals are fully informed. 

“I had concerns about two key aspects. First, many survivors have been through the ordeal of telling their story many, many times.

“It has been a long and arduous journey for them, and, wherever possible, we should seek to avoid re-traumatising those individuals.”

Mr Johnson wants individuals who have already provided evidence not to have to do so again.

He added: “Similarly, it is important that there is clarity regarding the length of time for consideration of applications and that redress Scotland will be required to take account of and make clear the accessibility of evidence that individuals might have.”

Sandra White (Glasgow Kelvin) (SNP) said: “The case of an older constituent who is in the process of making an application to the advance payments scheme has come to a standstill.  He cannot provide the evidence, because the children’s home and the health board records no longer exist.”

She asked: “Would those amendments cover the case of my constituent and older people generally who are affected in that way when their records are not available?”

Deputy First Minister John Swinney, right, said he too was concerned about survivors having to use their redress payments for legal fees that would  not be funded by the scheme.

He added: “It has always been the intention that survivors should receive and retain the entirety of their redress payments without having to use any of them to cover any costs related to their applications.

In relation to the point that Sandra White made, I note that redress Scotland will have the discretion that it needs to account for a challenging evidential landscape.

“That is one of the issues that the advance payments scheme has wrestled with. We appreciate that there is most definitely not a perfect evidential context for all of these decisions to be made.

The reassurance that I can give Sandra White is that, to date, the advance payments scheme has not turned down a single application due to a lack of evidence.

“I hope that that provides assurance that a significant approach of the benefit of the doubt has been taken in relation to applications so far in the advance payments scheme.

“My expectation is that that flexibility will also exist as redress Scotland pursues applications to the main scheme.”

Top picture: Smyllum Park children’s home in Lanarkshire which was the scene of appalling child abuse.

Leave a Reply