IICSA: Redress revisited

Another important recommendation made by the Independent Inquiry into Child Sexual Abuse (IICSA) was the introduction of a single national redress scheme in England and Wales for victims of abuse.

IICSA considers that a redress scheme is required in order to acknowledge the state’s responsibility to protect children from sexual abuse and the consequent harm experienced over many decades. In support of the recommendation, IICSA also pointed towards other jurisdictions, such as Scotland, Northern Ireland and the Republic of Ireland, which have already established a national redress scheme.

Patrick Williams, Associate in the specialist abuse team at Keoghs, considers IICSA’s recommendations for redress and provides an analysis of the potential issues and implications.

The core elements of redress

IICSA recommended that the redress scheme should reflect the following core elements:

Eligibility

• Victims and survivors of child sexual abuse and exploitation in England and Wales.
• Applicants must have experienced child sexual abuse and exploitation where there is a clear connection to state or non-state institutions in England and Wales.
• Any previous award or compensation received by an applicant should be deducted from any payment under the scheme.
• Applicants who have previously brought civil claims which have been rejected by the court should be excluded from applying to the scheme, save where their cases have been rejected due to limitation.

Redress provided

• Payments to eligible applicants is to be made through a two-tier system: (1) a fixed flat-rate recognition payment, and (2) the option to apply for a second-tier payment.

Process 

• Streamlined checks and verification of applications should be made, but they should not be adversarial.
• Special provisions to accelerate awards for older or terminally ill applicants.

Duration and funding

• The scheme should run for five years.
• Funded by central and local government, in accordance with devolved funding principles, with voluntary contributions sought from non-state institutions and insurers.

The issues with redress

In general terms, there are always a number of challenges and issues with redress schemes. This includes properly defining a qualifying applicant to ensure fairness and that individuals are not unintentionally excluded. The processes in regard to deceased abusers or those who deny or have been acquitted of criminal charges; the availability of evidence, assessment of level of redress under the scheme, funding and administration of the scheme and the finality of redress.

A clear connection?

In regard to eligibility, while the scheme should be open to any victim of child sexual abuse it is not apparent at this preliminary stage whether this would include those who are abused by a family member and those who were not ‘in care’ or connected to an institution.

In these circumstances, further clarification is required in regard to what a “clear connection between the institution and sexual abuse” would mean in practice and, therefore, further revision of the eligibility criteria will be required. In this regard and the recommendation that “there should be a clear connection between the institution and the sexual abuse experienced by the individual”, IICSA considers that there are a number of potential indicators, including but not limited to:

• whether the institution was responsible for the care or custody of the child – for example, ‘looked after children’, who are children in the care of local authorities or accommodated by local authorities (for more than a continuous period of 24 hours);
• whether the sexual abuse occurred on the premises of the institution (whilst the institution was still in control of the premises) or in connection with its activities; and
• whether the sexual abuse was committed, caused or contributed to by a person working or volunteering at the institution, in the context of those activities.

Particularly in relation to the final point, there is no definition in regard to whether the sexual abuse was “caused or contributed to by a person working or volunteering at the institution”. At this preliminary stage, it is difficult to consider in what circumstances an individual will be considered to have “caused or contributed” to the sexual abuse. In order to clarify this, it would be helpful for a definition to be provided within the scheme rules.

Restrictions on redress

In terms of restrictions, IICSA makes it clear that an applicant should not receive double recovery and refers to the approach adopted in Northern Ireland and Scotland where reduced payments are made under the scheme to reflect any payments or awards previously received. Further, IICSA considered the approach taken in the Lambeth Council redress scheme where in the case of any awards made by the CICA, the scheme ordered repayment of that award rather than it be deducted from any award given by the scheme.

However, the position is not clear if a victim of abuse were to pursue a civil claim after receiving a payment under the scheme. In these circumstances if an individual was to successfully pursue a civil claim then they would be benefitting from double recovery, which is something IICSA expressly wishes to avoid. The position will require further consideration and clarification prior to the commencement of the proposed redress scheme.

IICSA considered the position in Scotland where the scheme restricts eligibility based on previous convictions. IICSA’s view is that where there is likely to be a connection between the criminal offence and the child sexual abuse, the conviction should not be a bar to receiving an award. In regard to victims of Child Sexual Exploitation (CSE), they may have a history of criminal convictions although they may still not be eligible in circumstances where they are unable to establish a clear connection between the institution and the sexual abuse experienced. 

The level of redress

In regard to financial awards, IICSA considered the various approaches taken by other jurisdictions. For example, a points system based on a specific criteria in Republic of Ireland, different payment ranges or bands subject to a specific criteria in Jersey 1 (2021) and Jersey 2 (2019–2020), fixed awards determined by the type of abuse with additional fixed amounts to recognise the impact and circumstances of the abuse in Australia, Northern Ireland and Scotland. While tier one could be similar to the approach taken in Australia, Northern Ireland and Scotland, the level of award in tier two could be significant and unknown. Further, due to the complexity of these matters any award in regard to tier two could be inconsistent. This could undermine the simplicity of the scheme and it could become similar to a civil claims process, although without the adjudication by the courts in any event.

Legal assistance and funding

IICSA considered that the application process must be accessible and straightforward, although it recognises that some victims and survivors may require support through the provision of legal advice and assistance supplied by the scheme. At this preliminary stage, it is not clear who will provide this advice, at what cost and to what extent applicants would want legal advice provided through the scheme instead of obtaining their own legal advice.

IICSA considered the funding arrangements in other schemes where some are funded solely by the government and others with contributions from perpetrators and institutions (and their insurers). IICSA recommends that the national redress scheme in England and Wales should be funded by central and local government although in the current financial climate it not clear where these funds will come from, especially when many local governments are already severely underfunded.

Further, IICSA recommends that voluntary contributions are sought from non-state institutions and in circumstances where institutions do not respond or their contributions are considered insufficient the details of those institutions may be published on a list of institutions which refrain from contributing or from contributing sufficiently. It is not clear how this will work in practice or how the scheme will calculate a ‘sufficient contribution’. Further, in the current financial climate it might well be the case that an institution does not have the funds to contribute or contribute sufficiently.

Conclusion

IICSA recommends that the UK government establishes a single redress scheme in England and Wales and recognises that it is for the government to consider the detailed rules of, and funding for a national redress scheme. A number of complications and uncertainties remain in regard to the proposed national redress scheme which will require careful consideration to ensure fairness and transparency to all applicants.

At this preliminary stage, it is too soon to determine what the national redress scheme will look like and how it will operate. While IICSA has prepared broad parameters, similar to their recommendations on the need for legislative reform of limitation in cases of child sexual abuse, it is going to take some time until we have a better understanding of the government’s response to these. Further, in the current climate, it may take a long time for the government to properly consider and consult upon IICSA’s recommendations in regard to a national redress scheme for victims of child sexual abuse.