Claiming under the advance payment scheme
A solicitor accredited in child law explains the advance payment scheme, the first stage of the Scottish Government's financial redress scheme for survivors of historical child abuse in care
Issues around child abuse are well documented and publicised. Recent reports of large payouts to victims to compensate them for the abuse they have suffered suggest that they will receive compensation, but they face many challenges in seeking reparation. So it is worthy of note that the Scottish Government is going some way to address this for survivors of abuse in care by now offering a compensation scheme to people over 70 years of age or with a terminal illness – the advance payment scheme (“APS”).
Nearly 15 years ago the Scottish Parliament debated a motion, promoted a few years before by a petition submitted by Mr Daly, a survivor of abuse at Nazareth House in Aberdeen in the 1970s. The then First Minister Jack McConnell made a public apology on behalf of the people of Scotland in December 2004.
The Scottish Child Abuse Inquiry was set up on 1 October 2015 to look into the abuse of children in care. Chaired by Lady Smith, the inquiry aims to raise public awareness of this abuse. It provides an opportunity for public acknowledgment of the suffering of the children. It is due to report this year to ministers with recommendations to improve the law, policies and practices in Scotland, but whether that original timescale is still achievable remains to be seen. Claims for reparation have followed from the inquiry, and survivors seeking compensation have to lodge a civil claim.
A review group set up in the early 2000s, supported by CELCIS and the Scottish Human Rights Commission's “Action Plan on Justice for Victims of Historic Abuse of Children in Care”, raised the issue of the many barriers survivors face in seeking reparation, not least time bar, access to justice (being addressed by the Scottish Civil Justice Council) and obtaining evidence. The Limitation (Childhood Abuse) (Scotland) Act 2017 removed the time bar for victims under the age of 18 years, who were abused on or after 26 September 1964, seeking compensation in the civil courts. Government compensation is to help survivors come to terms with what has happened to them. Real investigation or inquiry into what has happened is by the Scottish Child Abuse Inquiry.
The APS to compensate survivors of in-care child abuse was announced by the Deputy First Minister on 25 April 2019. The APS is only for survivors who were in care before December 2004, and who are over 70 years of age or terminally ill. A statutory payment scheme is planned, following the introduction of legislation to compensate other victims or next of kin. It is expected that legislation will pass its final parliamentary stages before March 2021. Formal consultation on this is expected to take place later this year.
The APS provides for a £10,000 payment to be made to each survivor. Everyone who is approved for payment will receive the same amount, regardless of the type of abuse or length of time in care. The Scottish Government is fully funding the costs of the APS. It is possible that even if someone has already been compensated by another party, they can apply for further compensation from the Scottish Government; however that will depend on the terms of any settlement they have agreed to.
How is care defined?
For the sole purpose of the APS, care is to include children’s homes; foster care; secure care units including list D schools; young offenders’ institutions and borstals; places provided for boarded-out children in the Highlands & Islands; state, private and independent boarding schools; state-funded school hostels; healthcare establishments providing long-term care; and any similar establishments intended to provide children with long-term residential care. Further reference to the guidance should be made before submitting a claim.
How is abuse defined?
The Limitation (Childhood Abuse) (Scotland) Act 2017 refers to “sexual abuse, physical abuse, emotional abuse, and abuse which takes the form of neglect”.
Does the abuse need to be evidenced?
No one will be asked to provide any information or detail on the abuse they suffered in care or any impact it has had on them. Evidence will need to be provided that the survivor was in care; the application form requires a declaration to that effect. The guidance suggests a subject access request can be made for information about the survivor’s time in care. It is likely though to be more advantageous to the survivor to simply write to the organisation and ask for a letter confirming that they were in care. This is more straightforward for everyone involved, and likely to speed up the process for a survivor. COSLA is working closely with the Scottish Government, for example on the terms of correspondence which councils may be able to use as a simpler approach in confirming someone was in care, as the APS does not need the specifics of the survivor’s time in care or the abuse suffered.
A helpful “Frequently Asked Questions” booklet is available online to explain the APS in more detail. It is accompanied by a simple application form, which it is expected shall be filled in by a claimant or lay person.
There has been limited consultation with stakeholders and other interested parties, as the Government is keen to compensate older or ill victims who may not live long enough to be otherwise compensated.
It remains to be seen how quickly claims will be made, how many will be received under the APS and how the wider redress scheme will operate. The APS is open to anyone who qualifies to apply and claim that whilst in care they suffered abuse; it can only be hoped the scheme is not open to exploitation given the low requirement for evidence. As the Scottish Child Abuse Inquiry continues to examine abuse in care, and organisations and public bodies are asked for information, it will be appropriate to support victims to make them aware of the scheme and submit a claim where appropriate or advice retrospectively. The Government has ensured that this scheme can stand alone and is accessible for survivors, so they do not require legal advice or incur costs in applying for compensation.
Solicitors advising survivors would be well advised to encourage them to correspond directly with the Advance Payment Team or signpost them online for more information. Advice may be sought on the financial implications of receiving such a large payment by elderly people, who may reside in care. Survivors should be encouraged to seek confirmation of their time in care from the relevant organisation or public body, rather than seek a subject access request which may mean wading through documents for something relevant and receiving unhelpful parts of files, with possible redaction. Though it is accepted that resorting to this process may be necessary where no such affirmative confirmation is readily forthcoming, COSLA is working closely with local authorities to raise awareness of this issue and the need to respond actively to requests.
The Government has an Advance Payment Team, who can be contacted for further information (t: 0808 169 9740 (free call, Monday to Thursday, 10am to 4pm) or e: AdvancePaymentTeam@gov.scot).
Nicola Hogg is a solicitor accredited by the Law Society of Scotland as a specialist in child law, a member of SOLAR (www.solarscotland.org.uk/) and of the SOLAR Child Law Care Working Group