Commentary on Sections Section 3: Redress under scheme
17.This section sets out in more detail the type of provision that the Secretary of State may make in respect of a scheme, and includes some provisions that the Secretary of State must make in respect of a scheme. The Secretary of State is obliged to provide in regulations establishing a scheme for redress ordinarily to take the form of (a) the making of an offer of compensation in satisfaction of rights to bring court proceedings, (b) the giving of an explanation (which it is currently envisaged will cover explanations of how the harm or loss came about), (c) the giving of an apology, and (d) the giving of a report on the action which has been, or will be, taken to prevent similar cases arising (subsection (2)).
18.Subsection (3) gives particular examples of the sort of provision that regulations about redress under the scheme might include. For example, the scheme may provide for offers of redress under the scheme, where appropriate, to include contracts for future remedial care that is needed, alongside financial compensation (subsection (3)(a)). The scheme may also set out the circumstances in which different forms of compensation may be offered (subsection (3)(b)). For example, the scheme may make provision about the circumstances in which it is appropriate for an offer of redress to include a contract for future remedial care.
19.Subsection (4) provides for matters that a scheme may, in particular, provide for if the scheme provides for financial compensation to be offered: a scheme may make provision in relation to the matters in relation to which financial compensation can be offered (subsection (4)(a)) and the assessment of the amount of any financial compensation (subsection (4)(b)). A scheme may, for example, provide that a person seeking redress must be offered general damages (for pain and suffering) in line with the general law on damages, and that special damages (loss of earnings and other costs incurred as a result of the injury) must be assessed in light of whether there is adequate proof of such loss (e.g. receipts) and whether the sort of damages claimed can properly be claimed as special damages in accordance with the law that governs what types of loss a claim for special damages can include.
20.Subsection (5) provides that, if it provides for financial compensation, the scheme must specify an upper limit either on the total amount of financial compensation that may be included in an offer under the scheme (subsection (5)(a)) or on the amount of financial compensation that may be included in an offer in respect of pain and suffering (which is normally referred to in negligence claims as general damages) (subsection (5)(b)). Subsection (5)(c) makes clear that the scheme may not set any other limits on the level of financial compensation. It is currently envisaged that the scheme will specify the maximum amount of financial compensation that may be offered to people seeking redress under the scheme.