Detailed Provisions Part 4: Financial redress: redress payments Chapter 5: Redress payments or determinations made in error Section 75: Reconsideration of determination where possible material error
218.This section provides that, where Redress Scotland or the Scottish Ministers have cause to believe that an error may have materially affected a determination under Part 4 of the Act, they must make a referral to a panel of at least three members of Redress Scotland appointed to consider the matter. A reconsideration can occur either once a payment has already been made or in advance of a payment being made (if the error is known about in time).
219.Where Redress Scotland refers a determination for reconsideration, subsection (3) provides that Redress Scotland must inform the Scottish Ministers as soon as reasonably practicable. Where either Redress Scotland or the Scottish Ministers refer a determination for reconsideration, subsection (4) provides that the Scottish Ministers must then, again as soon as reasonably practicable, notify the relevant person that the determination is to be reconsidered and of the reasons for that, as well as providing information about the implications of the reconsideration. A period of at least eight weeks must be provided for the person to make written representations in relation to the reconsideration. Paragraph 60 of these Notes applies equally to the giving of notice to a person under subsection (4) that a determination is to be reconsidered. It is also relevant to the meaning of “writing” in relation to the making of representations under this section.
220.Subsection (5) provides that, once the period allowed for written representations has ended, the panel appointed to consider the matter must consider whether the determination was materially affected by an error. If the panel considers that the determination was so affected, it must redetermine it as it would have been determined had the error not occurred. In accordance with subsection (6), for the purposes of other proceedings (civil or criminal), nothing done under a reconsideration can be taken as a finding that any person mentioned in the original application acted or failed to act in a way set out in that application. This rule also applies to original determinations and reviews of them (see sections 36 and 57(4)).
221.Subsection (7) provides for notification requirements which apply once the reconsideration has taken place, and requires Redress Scotland to inform the Scottish Ministers, who must then notify the person affected of the outcome of the panel’s reconsideration, including providing a summary of the reasons for the panel’s decision. Paragraph 60 of these Notes applies equally to the form of notice of a determination under this section.
222.Subsection (8) provides that, where a redetermination relates to a redress payment that has not yet been made, the reconsidered determination takes the place of the original determination, but any review is to be under section 76 rather than section 54, so that there are not two different review rights applying simultaneously in respect of the same matter. Subsection (9) sets out the meanings of “error” and “relevant person” for the purposes of this section. The person who is notified of a reconsideration will usually be the applicant (or their nominated beneficiary) but there may be times where that person died after accepting a payment but before receiving it, and the payment was therefore redirected elsewhere.