Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021

CHAPTER 5 S Redress payments or determinations made in error

74 Liability for redress payments made in error S

(1) A person is liable to pay the Scottish Ministers the value of any redress payment to the extent that it is paid to the person due to a relevant error.

(2) A person's liability under subsection (1) is the difference in value between—

(a) the redress payments that are paid to the person, and

(b) the redress payments (if any) that would have been paid to the person had the relevant error not been made.

(3) Where the Scottish Ministers seek to recover a sum due to them by a person under subsection (1), the sum may be paid—

(a) in such instalments as are agreed at the request of, or otherwise with the consent of, the person, or

(b) otherwise, as a single payment.

(4) In this section, references to a relevant error are to—

(a) an error when making a payment of a redress payment,

(b) an error which Redress Scotland determines under section 75, or, as the case may be, on a review under section 76, led to a determination under this Part being made—

(i) incorrectly, or

(ii) correctly but on the basis of incorrect or misleading information,

in a way which materially affected the determination.

Commencement Information

I1 S. 74 in force at 7.12.2021 by S.S.I. 2021/419, reg. 2

75 Reconsideration of determination where possible material error S

(1) Where Redress Scotland has, or the Scottish Ministers have, cause to believe that a determination under this Part may have been materially affected by an error, it or they must refer the determination for reconsideration (regardless of whether or not a payment has been made under it).

(2) A determination which is referred for reconsideration is to be considered on behalf of Redress Scotland by a panel of at least 3 members of Redress Scotland appointed by the chairing member (“a reconsideration panel”).

(3) Where Redress Scotland refers a determination for reconsideration, it must, as soon as reasonably practicable, inform the Scottish Ministers of the referral.

(4) Where a determination is referred for reconsideration by either Redress Scotland or the Scottish Ministers, the Scottish Ministers must, as soon as reasonably practicable—

(a) notify the relevant person—

(i) that the determination is to be reconsidered, and

(ii) of the reasons, provided by the person who has made the referral, for the reconsideration,

(b) provide the relevant person with information about the implications of the determination being reconsidered, and

(c) allow the relevant person a period of at least 8 weeks, beginning with the date on which notice of the reconsideration was received by the person, for the person to make written representations in connection with the reconsideration.

(5) After the period for the making of representations under subsection (4)(c) has ended, the reconsideration panel must—

(a) determine whether the original determination was materially affected by an error, and

(b) if it was so affected, re-determine it on the basis of how it would have been determined had the error not been made.

[F1 (5A) Subsection (5B) applies where, in relation to an original determination which determined an application for a redress payment, the reconsideration panel determines under subsection (5)(b) that a person—

(a) is eligible for a redress payment, and

(b) is not precluded from being offered a redress payment by virtue of section 60 (as it applies by virtue of subsection (5)(b)).

(5B) In assessing the amount of the redress payment (if any) to be offered, no account is to be taken of any redress payment which has previously been paid in respect of the original determination but no entitlement to any such amount arises by virtue of section 50(2).]

(6) For the purposes of other proceedings, nothing done under a reconsideration is to be taken as a finding as to whether or not a person who is referred to in the application to which the original determination relates acted, or failed to act, in a way suggested in the application.

(7) Once the reconsideration panel has conducted the reconsideration, Redress Scotland must inform the Scottish Ministers who must, as soon as reasonably practicable—

(a) notify the relevant person of the reconsideration panel's determination, and

[F2 (b) provide the relevant person with—

(i) a summary, provided by Redress Scotland, of the reconsideration panel’s reasons for reaching that determination,

(ii) information in relation to the effect of the panel’s determination on a previous offer of a redress payment made under the original determination,

(iii) where the panel’s determination makes an offer of a redress payment, information about the period for which the offer remains valid by virtue of section 49(3) and the options available to the relevant person in respect of it.]

[F3 (8) Where the reconsideration panel makes a determination, in relation to an original determination in respect of which a right of review still exists, that the original determination was materially affected by an error—

(a) the reconsideration panel’s determination takes the place of the original determination, and

(b) any review of the reconsideration panel’s determination is to be conducted under section 76.]

(9) In [F4 this section and in sections 75A to 78] —

• “error” means an error which led to a determination under this Part being made—

  (a)

  incorrectly, or

  (b)

  correctly but on the basis of incorrect or misleading information,

• [F5 “original determination” means the determination referred for reconsideration under subsection (1),]

• “relevant person” means—

  (a)

  the person who was notified of the determination which is the subject of the referral, or

  (b)

  if that person has died—

  (i)

  where a payment under the determination was made to the deceased person, the deceased person's estate,

  (ii)

  where a payment under the determination was, or is to be, made to another person (including the deceased person's estate), that person.

Textual Amendments

F1 S. 75(5A)(5B) inserted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 24(2)

F2 S. 75(7)(b) substituted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 24(3)

F3 S. 75(8) substituted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 24(4)

F4 Words in s. 75(9) substituted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 24(5)(a)

F5 Words in s. 75(9) inserted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 24(5)(b)

Commencement Information

I2 S. 75 in force at 7.12.2021 by S.S.I. 2021/419, reg. 2

[F6 75A Effect of referral for reconsideration on ongoing applications S

(1) This section applies where—

(a) an offer of a redress payment was made under the original determination,

(b) at the point at which the original determination was referred for reconsideration, the offer had not been accepted and the period for which the offer (or, as the case may be, the offer as revived under section 49(4) or 58(4)) is valid had not ended.

(2) From the point at which the original determination is referred for reconsideration—

(a) the offer is suspended (and any purported acceptance of it while it is suspended is of no effect),

(a) where a request for a review of the original determination has been made but not determined, the review is paused.

(3) Where the reconsideration panel determines under section 75(5)(a) that the original determination was not materially affected by an error—

(a) the offer is revived,

(b) subsections (4) and (5) apply, and

(c) any review paused by virtue of subsection (2)(b) is resumed.

(4) Where the original determination was made under section 36, sections 49 to 53 apply subject to the following modifications—

(a) references to the applicant are to be read as references to the relevant person,

(b) in section 49—

(i) in subsection (3)(a), for “the date on which the offer was received by the applicant” there is substituted “the date on which the relevant person received notification of the determination under section 75(5)(a)”, and

(ii) in subsections (3)(b) and (4), the references to the panel appointed under section 35 are to be read as references to the reconsideration panel,

(c) in section 51(1), the reference to the panel appointed under section 35 or, as the case may be, a review panel appointed under section 55 is to be read as a reference to the reconsideration panel.

(5) Where the original determination was made on a review, sections 50 and 58 apply subject to the following modifications—

(a) references to the applicant are to be read as references to the relevant person,

(b) in section 58(3)(a), for “the date on which the offer was received by the applicant” there is substituted “the date on which the relevant person received notification of the determination under section 75(5)(a)”, and

(c) in section 58(3)(b) and (4), the references to the review panel are to be read as references to the reconsideration panel.

Textual Amendments

F6 Ss. 75A-75E inserted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 25

75B. Effect of referral for reconsideration on unpaid redress payments S

(1) This section applies where—

(a) an offer of a redress payment was made under the original determination,

(b) at the point at which the original determination was referred for reconsideration, the offer had been accepted but payment (in whole or in part) had not been made.

(2) From the point at which the original determination is referred for reconsideration, any entitlement to the redress payment (or any unpaid part of it) under section 50(2) is suspended.

(3) Where the reconsideration panel determines under section 75(5)(a) that the original determination was not materially affected by an error, any entitlement to the redress payment (or any unpaid part of it) under section 50(2) is restored.

Textual Amendments

F6 Ss. 75A-75E inserted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 25

75C. Effect of redetermination: no eligibility or no offer made S

(1) This section applies where a reconsideration panel determines under section 75(5)(b) that a person—

(a) is not eligible for a redress payment,

(b) is so eligible but no redress payment is to be offered (for example, due to the deduction of relevant payments), or

(c) is precluded from being offered a redress payment by virtue of section 60 (as it applies by virtue of section 75(5)(b)).

(2) Any waiver signed and returned in accordance with section 46 in respect of an offer made under the original determination is of no effect.

Textual Amendments

F6 Ss. 75A-75E inserted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 25

75D. Effect of redetermination: offer made where no previous offer or previous offer not accepted S

(1) This section applies where the reconsideration panel determines under section 75(5)(b) that an offer of a redress payment is to be made and—

(a) no offer of a redress payment was made under the original determination, or

(b) such an offer was made but, at the point at which the original determination was referred for reconsideration, the offer had not been accepted.

(2) Subject to subsection (3), sections 46, 47 and 49 to 53 apply to the offer made under section 75(5)(b) as they apply to an offer made under a determination under section 36 but subject to the modification that references in those sections to—

(a) the applicant (other than the reference in the definition of “relevant abuse” in section 46(6)) are to be read as references to the relevant person, and

(b) the panel appointed under section 35 or, as the case may be, a review panel appointed under section 55 are to be read as references to the reconsideration panel.

(3) Sections 46, 47 and 49 to 53 are subject to the following further modifications—

(a) in section 46(2), for “an applicant to whom subsection (3) applies” substitute “, where subsection (3) applies, the relevant person”,

(b) in section 46(3), for “to an applicant for an individually assessed payment who” substitute “where the application to which the original determination relates is an application for an individually assessed payment and the applicant in relation to that application”,

(c) for section 49(1), substitute—

“(1) A relevant person to whom an offer of a redress payment is made under section 75(5)(b) may—

(a) accept the offer in accordance with section 50(1),

(b) reject the offer in accordance with subsection (1A), or

(c) request a review of the offer in accordance with section 76.

(1A) An offer of a redress payment made under section 75(5)(b) is rejected by the relevant person giving the Scottish Ministers notice in writing that the offer is rejected.”,

(d) in section 49(2), for “neither” substitute “none”,

(e) in section 49(3)(a), for “the date on which the offer was received by the applicant” there is substituted “the date on which the relevant person received notification of the determination under section 75(5)(b)”.

Textual Amendments

F6 Ss. 75A-75E inserted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 25

75E. Effect of redetermination: offer made where previous offer accepted S

(1) This section applies where the reconsideration panel determines under section 75(5)(b) that an offer of a redress payment is to be made (“the new offer”) and—

(a) an offer of a redress payment was made under the original determination (“the original offer”), and

(b) at the point at which the original determination was referred for reconsideration, the original offer had been accepted.

(2) Where the new offer is an offer of the same amount as the original offer—

(a) the new offer is deemed to have been accepted in accordance with section 50(1),

(b) any waiver signed and returned in accordance with section 46 in respect of the original offer continues to have effect,

(c) subject to the modification in subsection (3), sections 50(2) to (4) and 51 to 53 apply to the new offer as they apply to an offer made under a determination under section 36, and

(d) references in those sections to—

(i) the applicant are to be read as references to the relevant person, and

(ii) the panel appointed under section 35 or, as the case may be, a review panel appointed under section 55 are to be read as references to the reconsideration panel.

(3) The modification referred to in subsection (2)(c) is, in section 50(4), after “section 46” insert “(as modified by section 75D(2)(a))”.

(4) Where the new offer is not an offer of the same amount as the original offer, sections 49 to 53 apply to the new offer as they apply to an offer made under a determination under section 36 but subject to the modification that references in those sections to—

(a) the applicant are to be read as references to the relevant person, and

(b) the panel appointed under section 35 or, as the case may be, review panel appointed under section 55 are to be read as references to the reconsideration panel.

(5) Where subsection (4) applies, sections 49 and 50 are subject to the following further modifications—

(a) for section 49(1), substitute—

“(1) A relevant person to whom an offer of a redress payment is made under section 75(5)(b) may—

(a) accept the offer in accordance with section 50(1),

(b) reject the offer in accordance with subsection (1A), or

(c) request a review of the offer in accordance with section 76.

(1A) An offer of a redress payment made under section 75(5)(b) is rejected by the relevant person giving the Scottish Ministers notice in writing that the offer is rejected.”,

(b) in section 49(2)—

(i) for “neither” substitute “none”, and

(ii) for “rejected” substitute “accepted”,

(c) in section 49(3)(a), for “the date on which the offer was received by the applicant” there is substituted “the date on which the relevant person received notification of the determination under section 75(5)(b)”.

(d) for section 50(1) substitute—

“(1) An offer of a redress payment made under a determination under section 75(5)(b) is accepted by the relevant person giving the Scottish Ministers notice in writing that the offer is accepted.”,

(e) in section 50(2)(a), after “subsection (1)” insert “or, as the case may be, treated as accepted under section 49(2)”,

(f) in section 50(4), after “section 46” insert “(as modified by section 75D(2)(a))”.

(6) Where the relevant person accepts the new offer or is treated as having accepted the new offer under section 49(2), any waiver signed and returned in accordance with section 46 in respect of the original offer continues to have effect.

(7) Where the relevant person rejects the new offer, any waiver signed and returned in accordance with section 46 in respect of the original offer is of no effect.

(8) For the avoidance of doubt, in a case where the original offer relates to an application for an individually assessed payment made by virtue of section 30(2) or, as the case may be, (3), subsection (7) does not apply to any waiver signed in relation to an offer of a redress payment made previously to or in respect of the applicant.]

Textual Amendments

F6 Ss. 75A-75E inserted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 25

76 Review of reconsidered determination S

(1) A person who is notified of a determination under section 75 may request a review of it.

(2) A request for a review must—

(a) be made to the Scottish Ministers,

(b) be made before the end of the period of 8 weeks beginning with the date on which notice of the determination was received by the person requesting the review,

(c) be made in such form, if any, as Ministers require,

(d) specify why a review is being requested, and

(e) contain or be accompanied by any information the person requesting the review considers relevant.

(3) The Scottish Ministers must, as soon as reasonably practicable after receiving a request for a review, provide the request, and any information accompanying it, to Redress Scotland.

(4) A review may be conducted despite the request for it not being made within the period specified in subsection (2)(b) if Redress Scotland is satisfied that the person requesting the review has a good reason for not requesting a review sooner.

(5) The Scottish Ministers must publicise any requirements which are for the time being set under subsection (2)(c).

(6) Sections 55, 56 and 59(1) to (5) apply for the purposes of a review under this section as they apply for the purposes of a review under section 54, subject to the modification that the reference in section 59(1) to a determination being made under section 57 is to be read as a reference to a determination being made under section 77.

Commencement Information

I3 S. 76 in force at 7.12.2021 by S.S.I. 2021/419, reg. 2

77 Outcome of a section 76 review S

(1) On a review under section 76, the review panel appointed under section 55 to conduct it must consider—

(a) whether the reconsideration panel which determined, under section 75, whether the original determination was materially affected by error and, if so, how it ought to be re-determined ought to have reached a different determination, and

(b) in a case where additional evidence is provided to or obtained by the review panel, whether the application ought to be determined differently as a result.

(2) The review panel may not—

(a) reverse or vary a determination under section 75 that a person [F7 is or] remains eligible for a redress payment,

(b) determine that a person is to be entitled to or, as the case may be, offered a lower amount by way of an individually assessed payment than the person was entitled to or offered under section 75, or

(c) determine that more is to be deducted in accordance with section 42 from the person's redress payment than was determined under section 75.

(3) But the review panel may otherwise uphold, reverse or vary any part of the determination (whether the request for a review relates to that part of it or not).

(4) Subsections (4) and (7) of section 36 apply to a determination as upheld, reversed or varied as they apply to a determination made under section 36, subject to the modification that references to the panel appointed under section 35 to determine the application are to be read as references to the review panel.

[F8 (4A) Subsections (4B) and (4C) apply where the review panel determines under this section that an offer of a redress payment is to be made (whether or not an offer of a redress payment was made under the determination under section 75(5)(b) which was the subject of the request for a review).

(4B) In assessing the amount of the redress payment (if any) to be offered, no account is to be taken of any redress payment which has previously been paid in respect of the original determination which was referred for reconsideration under section 75 but no entitlement to any such amount arises by virtue of section 50(2).

(4C) Section 75D or, as the case may be, 75E applies to an offer made under a determination under this section as it applies to an offer made under a determination under section 75(5)(b) subject to the following modifications—

(a) references to the relevant person are to be read as references to the person who requested the review,

(b) references to the reconsideration panel are to be read as references to the review panel appointed to conduct the review under section 76.]

(5) Once the review panel has conducted the review, Redress Scotland must inform the Scottish Ministers who must, as soon as reasonably practicable—

(a) notify the person who requested it of the review panel's determination, and

[F9 (b) provide the person with—

(i) a summary, provided by Redress Scotland, of the review panel’s reasons for reaching that determination,

(ii) information in relation to the effect of the panel’s determination on a previous offer of a redress payment made under the determination under section 75(5)(b),

(iii) where the panel’s determination makes an offer of a redress payment, information about the period for which the offer remains valid by virtue of section 49(3) and the options available to the person in respect of it.]

(6) The determination of the review panel under this section is final.

(7) For the avoidance of doubt, subsection (6) does not prevent the determination of the review panel being the subject of a referral under section 75 provided that the referral relates to a different error from the one which previously led to the review.

Textual Amendments

F7 Words in s. 77(2)(a) inserted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 26(2)

F8 S. 77(4A)-(4C) inserted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 26(3)

F9 S. 77(5)(b) substituted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 26(4)

Commencement Information

I4 S. 77 in force at 7.12.2021 by S.S.I. 2021/419, reg. 2

[F10 77A. Withdrawal of review request S

(1) This section applies where—

(a) a request for a review under section 76 is withdrawn in accordance with section 59 (as applied by section 76(6)), and

(b) the request relates to a review of a determination under section 75(5)(b) under which an offer of a redress payment was made.

(2) The period for which the offer remains valid under section 49(3), or any longer period which had been determined under that section prior to the request for a review being made, is to be extended by the number of days in the period—

(a) beginning with the date on which the request for a review was made, and

(b) ending with the date on which the request was withdrawn.

Textual Amendments

F10 Ss. 77A, 77B inserted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 27

77B. Liability for redress payment where offer on redetermination rejected S

(1) This section applies where—

(a) an offer of a redress payment was made under the original determination (“the original offer”),

(b) the offer had been accepted in accordance with section 50(1) and payment (in whole or in part) had been made,

(c) the reconsideration panel determines under section 75(5)(b) or, as the case may be, a review panel determines under section 77 that an offer of a redress payment is to be made (“the new offer”), and

(d) the relevant person or, as the case may be, the person who requested the review rejects the new offer.

(2) The person is liable to pay the Scottish Ministers the value of any redress payment paid in respect of the original offer (whether or not that person is also liable to pay any amount by virtue of section 74).

(3) Where the Scottish Ministers seek to recover a sum due to them by a person under subsection (2), the sum may be paid—

(a) in such instalments as are agreed at the request of, or otherwise with the consent of, the person, and

(b) otherwise, as a single payment.]

Textual Amendments

F10 Ss. 77A, 77B inserted (9.2.2022) by The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 (S.S.I. 2022/44), regs. 1(1), 27

78 Power to make further provision about reconsiderations S

(1) The Scottish Ministers may by regulations make further provision about or in connection with the reconsideration of a determination under section 75 and any review of it under section 76.

(2) Regulations under subsection (1) may, in particular—

(a) make provision requiring or enabling the payment by the Scottish Ministers of fees for legal work and other costs and expenses reasonably incurred by a person who is a relevant person under section 75(9) in connection with a reconsideration,

(b) make provision for the recovery of such fees for legal work and other costs and expenses where payment of those fees, costs and expenses was due to an error,

(c) make provision allowing material changes which have occurred since the date of the original determination to be taken into account, or taken into account in particular cases, in any re-determination under section 75(5)(b),

(d) make provision in relation to the interaction of the reconsideration panel's determination with any offer that has already been accepted (including any waiver signed and returned in order to do so).

(3) Regulations under subsection (1) may modify any enactment (including this Act).

Commencement Information

I5 S. 78 in force at 28.6.2021 by S.S.I. 2021/234, reg. 2, sch.