Forbes Social Services and Abuse Claims blog series into the IICSA Report. Series 4: Recommendation 19, Redress

This article is the fourth and final in our IICSA blog series and will explore Recommendation 19, the Inquiry's recommendation that the UK Government establishes a single tiered redress scheme in England and Wales.

Why has the recommendation been suggested?

The Inquiry's research concluded that many victims of sexual abuse were dissatisfied with the existing processes for redress, namely the civil litigation process and/or criminal compensation schemes, finding them difficult to navigate and re-traumatising for victims and survivors of sexual abuse.

The proposed single redress scheme would replace the separate schemes for both civil justice and criminal compensation in England and Wales, providing the greater levels of accountability and reparation sought by victims and survivors of child sexual abuse. The Inquiry's aim is to maintain simplicity of approach with flexibility to differentiate between applicants who have varying experiences and needs.

The Inquiry proposes five core elements;

1. Eligibility

Victims and survivors of child sexual abuse and exploitation that occurred in England and in Wales should be eligible to apply.

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. The Inquiry suggests that the sexual abuse experienced by the victim does not necessarily need to be limited to the institution's premises, meaning a 'connection' will be established on a case-by-case basis. The following examples are cited:

• Where the institution was responsible for the care or custody of the child e.g. 'looked after children,' received into the care of local authorities and accommodated by local authorities for more than a continuous period of 24 hours;

• Where sexual abuse occurred on the premises of the institution (whilst the institution was in control of the premises) or in connection with the institution's activities;

• Where the sexual abuse was committed, caused or contributed to by a person working or volunteering at the institution in the context of those activities.

The scheme should be open to any victim of child sexual abuse that took place prior to its establishment, and would therefore be retrospective.

To prevent double recovery, the scheme should deduct any previous award from any payment under the scheme (or in the case of payments made by the Criminal Injuries Compensation Authority, it may order that they be repaid). How this might be achieved in practice is left open.

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.

Further, victims and survivors who have criminal convictions should not be hindered from applying. In certain instances, it may be suitable for relatives or representatives of deceased victims and survivors of child sexual abuse to apply for redress.

1. Redress provided

The scheme would provide payments to eligible applicants through a simplistic two-tier system comprising an initial fixed flat-rate 'recognition payment', with the option to apply for a second-tier payment.

The first-tier fixed rate payment would comprise a 'modest payment' available to eligible applicants who did not want to recount in detail the sexual abuse that they had experienced.

The second-tier fixed rate payment would be available to eligible applicants who wished to provide more detail, evidence and medical evidence when necessary.

1. Process

The Inquiry is clear that the application process must be accessible, straightforward and sensitive to the needs and vulnerabilities of victims and survivors of child sexual abuse. They suggest that the process should be streamlined for checks and verification of applications but that this ought not to be adversarial.

The Inquiry recommends special provisions to accelerate awards for applicants who are older or terminally ill.

1. Duration

The Inquiry suggests the scheme should run for five years in total.

1. Funding

The Inquiry believes that the scheme should be funded by central and local government, in accordance with devolved funding principles with voluntary contributions sought from non-State institutions to recognise that the responsibility for all aspects of children's welfare and well-being is a duty of the State as a whole. Individual institutions where child sexual abuse has occurred should also contribute towards the reparation provided by the scheme, in acknowledgement of their shared responsibility.

How might this impact Local Authorities and the Public Sector?

Whilst the Inquiry recommends that the redress scheme should be funded by central and local government, voluntary contributions would be sought from non-State institutions and their insurers (if any). The level and extent of these contributions is not detailed, and whilst there has been discussion around seeking a compulsory 'levy' from those insurers providing cover to relevant institutions, the socio-economic impact of such a move would need to be carefully analysed.

The Inquiry is keen to provide eligible victims of sexual abuse with an acknowledgement of any overarching failures on the part of the State or non-State institutions who have failed to adequately protect children in their 'care and control'. The Inquiry therefore recommends that the Government should maintain a list of the institutions from whom they have sought contributions, and that it should be published. Where institutions do not respond, or their contributions are considered as being insufficient, further action may be considered such as the publication of the list of institutions who fail to contribute or contribute sufficiently.

It must be hoped that this suggested approach is managed with extreme caution. Whilst 'naming and shaming' is popular, it often unfairly impacts upon those diligently seeking to serve and assist the vulnerable in society already working in residential, educational or other institutional settings, and may well deter other well-intentioned personnel from entering an already under-resourced field of work, due to the potential for unwelcome media intrusion and/or reputational damage.

How might this impact insurers?

Insurers will be keen to identify how any 'levy' may be applied to them to help fund the proposed redress scheme, and how the scheme will impact upon civil claims generally so that they can forecast budget and risk.

As the redress scheme is unlikely to result in compensation payments which exceed those achievable via the civil claim process, it may be that victims already contemplating a claim choose to commence civil proceedings sooner rather than later.