Detailed Provisions Eligibility to apply for next of kin payments Section 28: Meaning of “specified next of kin”
68.This section sets out who is to be considered the ‘specified next of kin’ in relation to a deceased person for the purpose of a next of kin application.
69.Subsection (1) provides that specified next of kin is the person who immediately before the death of the deceased person was the spouse, civil partner or cohabitant of the deceased person. “Cohabitant of the deceased person” is defined in subsection (4) to mean a person who was neither married to nor in a civil partnership with the deceased person but who was living with the deceased person as if they were married to each other and had been doing so for a period of at least six months.
70.Subsection (2) deals with circumstances where the deceased person has both a spouse or civil partner, and a different person who they lived with immediately before their death (for example, because they had separated from their spouse and were in a new relationship). Where that is the case, the specified next of kin will be the cohabitant of the deceased person (which, in accordance with subsection (4), means a person who had lived with the survivor as if they were married for at least six months immediately before the survivor’s death). If they had not lived together for those six months, subsection (2) does not apply because there is no “cohabitant” in terms of the definition used in the Act; as such, under subsection (1) the specified next of kin will be the spouse or civil partner of the deceased person. In any situation where subsection (2) applies, the decision in favour of the cohabitant is not revisited on the subsequent death of the cohabitant (meaning that the spouse or civil partner cannot later take over the right to apply).
71.If the deceased person had neither a spouse, civil partner nor cohabitant, or where any such partner has themselves since died without having accepted an offer under the redress scheme for a next of kin payment, the specified next of kin will be the child or children of the deceased person (subsection (3), as read with subsection (1)(b)). The term “child” includes a stepchild, or a person treated as a child of the deceased person by them (subsection (4)), and the right to apply for a next of kin payment will pass to them.
72.Therefore, for example, if a person who would have been eligible to apply for a redress payment under the scheme, but had not done so, dies and they were married but separated from their spouse and had been living with another person for at least six months immediately before they died, it is the person they had been living with who could apply for a next of kin payment under the redress scheme. If that person decides not to do so and then dies, the right to make the application passes to the child or children of the abuse survivor who died.
73.In assessing for the purposes of these provisions whether a person was a “cohabitant” of the deceased person, Redress Scotland would be able to take into account relevant case law in relation to other legislation such as, for example, under the Family Law (Scotland) Act 2006. For example, there is case law which provides that a person does not cease being someone’s cohabitant simply because they were hospitalised for a period immediately before death.