Detailed Provisions Part 4: Financial redress: redress payments Determination of applications Section 36: Determination of applications
98.This section explains that, upon receipt of an application, the Redress Scotland panel appointed to consider it will determine the eligibility of the applicant for the type of redress payment applied for. The standard of proof against which an applicant’s eligibility for a redress payment will be determined is the civil standard of “on the balance of probabilities”.
99.This means that the eligibility criteria will be met if it is determined that the applicant has demonstrated that it was “more likely than not” that abuse of the survivor took place, prior to 1 December 2004, in the eligible care setting where the survivor was resident as a child.
100.Where the applicant is a next of kin applicant, the same standard of proof would also apply to any questions as to their eligibility to apply as next of kin (for example any question as to whether they had cohabitated with the survivor, in a relationship that was akin to that of spouses/civil partners, for at least 6 months immediately prior to the survivor’s death).
101.If satisfied about eligibility, the panel must then determine the amount to be awarded. The panel will assess the application based on the information provided in the application, any further information requested by and provided to the panel, and anything else the panel deems relevant.
102.Subsection (3) ensures that the starting point for the panel when considering an application is that the information provided by the applicant is to be presumed to be true and accurate to the best of the applicant’s knowledge and belief. While this presumption is the starting point, it can be overturned. The effect is that the applicant will submit the application in the knowledge that, as a starting point, there will be a presumption of credibility in favour of their account.
103.Subsection (4) provides that Redress Scotland has no power to rule on or determine any person’s civil or criminal liability when considering applications (which would be the role of a court).
104.The process for determining an application is to be determined by Redress Scotland (having regard to any guidance which may be issued about the matter under section 106). Subsection (6) states that once the application has been determined by Redress Scotland, it must inform the Scottish Ministers, who will then notify the applicant of the outcome of the determination and the reasons for the determination, and provide the applicant with the summary of options (prepared under section 9). Where a payment is offered, the Scottish Ministers must also inform the applicant of the timings and options available to them in relation to the potential acceptance (or not) of a payment. Paragraph 60 of these Notes applies equally to the form of notice of a determination under this section.
105.Subsection (7) provides that neither the offer of redress, nor the failure to make such an offer, can be relied on in other proceedings as evidence that the acts complained of occurred or did not occur.