The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022
| Year | 2022 |
2022 No. 44
Redress Scheme
The Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022
Made 8th February 2022
Coming into force 9th February 2022
The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 78(1), 107(1) and 108(1) of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 20211and all other powers enabling them to do so.
In accordance with section 107(2) of that Act, a draft of these Regulations has been laid before and approved by resolution of the Scottish Parliament.
PART 1
GENERAL
Citation, commencement and interpretation
1.—(1) These Regulations may be cited as the Redress for Survivors (Historical Child Abuse in Care) (Reconsideration and Review of Determinations) (Scotland) Regulations 2022 and come into force on the day after the day on which they are made.
(2) In these Regulations—
“the Act” means the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021,
“re-determination” means, except in regulation 20(8)(a), a re-determination made under section 75(5)(b) of the Act,
“relevant person” means—
(a) in connection with a reconsideration—
(i) the person who was notified of the determination which is or was the subject of a referral under section 75(1) of the Act, or
(ii) if that person has died—
(aa) where a payment under the determination was made to the deceased person, the deceased person’s estate,
(bb) where a payment under the determination was, or is to be, made to another person (including the deceased person’s estate), that person,
(b) in connection with a review, a person who was notified of a determination under section 75 of the Act.
(3) Unless the context otherwise requires, in these Regulations—
“reconsideration” means reconsideration of a determination made under Part 4 of the Act in accordance with section 75 of that Act,
“review” means a review of a reconsidered determination under section 76 of the Act.
PART 2
LEGAL FEES IN CONNECTION WITH RECONSIDERATION AND REVIEW
Payment of fees for legal work in connection with reconsideration and review
2.—(1) The Scottish Ministers must, on request, pay—
(a)
(a) the relevant sum to a solicitor in respect of legal work reasonably undertaken for a relevant person in connection with—
(i) a reconsideration (whether or not the reconsideration resulted in a re-determination),
(ii) a review (irrespective of whether the determination under review was upheld, reversed or varied), and
(b)
(b) such additional sum as is specified by Redress Scotland in respect of the legal work mentioned in paragraph (a), where Redress Scotland’s assessment is that there are exceptional or unexpected circumstances which justify the payment of an additional sum.
(2) Where the Scottish Ministers have cause to believe that the legal work to which a request relates may not have been reasonably undertaken in connection with a reconsideration or review, it is for Redress Scotland to decide the question.
(3) The relevant sum for the corresponding description of legal work specified in the second column of the table of fees in Part 1 of the schedule of these Regulations is that specified in column A of that table, whether or not that work is conducted before or after the reconsideration and irrespective of its outcome.
(4) Unless paragraph (5) applies, the relevant sum for the corresponding description of legal work specified in the second column of the table of fees in Part 2 of the schedule is that specified in column A of that table, whether or not that work is conducted before or after the review and irrespective of its outcome.
(5) This paragraph applies if—
(a)
(a) a request for a review is withdrawn in accordance with section 59(2) of the Act before a determination is made under section 77, or
(b)
(b) the relevant person dies, or in the case of a person other than an individual, ceases to exist, after a request for a review is made under section 76 of the Act, but before the review is determined under section 77.
(6) Where paragraph (5) applies, the relevant sum for the corresponding description of legal work specified in the second column of the table of fees in Part 2 of the schedule is that specified in column B of that table.
(7) Where the work done by the solicitor constitutes a supply of services in respect of which value added tax is chargeable, an amount equal to the amount of value added tax chargeable will be added to the applicable sum payable by virtue of this regulation.
Fee payment requests
3. A fee payment request must—
(a) be made by completing and submitting to the Scottish Ministers a form to be provided by the Scottish Ministers for that purpose,
(b) specify the legal work undertaken and when that work was carried out,
(c) in the case of a request for an additional sum under regulation 2(1)(b), provide information about the exceptional or unexpected circumstances which the solicitor considers may justify the payment of an additional sum,
(d) contain or be accompanied by any other information the solicitor considers relevant to the request.
Time limit for fee payment requests
4.—(1) A fee payment request under regulation 3 must be submitted to the Scottish Ministers before the end of the period of 8 weeks beginning with the date on which the notice of the outcome of the reconsideration, or as the case may be, the review, was received by the relevant person.
(2) The Scottish Ministers may consider a fee payment request despite it not being made within the period specified in paragraph (1), if they are satisfied that the person had a good reason for not making the request sooner.
Prior approval to undertake legal work in exceptional or unexpected circumstances
5.—(1) A solicitor must, prior to undertaking legal work in exceptional or unexpected circumstances as referred to in regulation 2(1)(b)—
(a)
(a) make a request in writing to the Scottish Ministers for authority in principle to undertake the legal work, and
(b)
(b) specify the additional sum which the solicitor considers is likely to be requested in respect of the legal work.
(2) The Scottish Ministers must, as soon as reasonably practicable after receiving a request under paragraph (1), provide the request and any information accompanying it to Redress Scotland.
(3) On receipt of a request under paragraph (2), Redress Scotland must as soon as reasonably practicable—
(a)
(a) assess whether there are exceptional or unexpected circumstances which justify the solicitor reasonably undertaking the legal work so that authority in principle ought to be given, and
(b)
(b) where satisfied that there are exceptional or unexpected circumstances which justify the legal work being reasonably undertaken, indicate if the additional sum specified under paragraph (1)(b) or such other sum is appropriate.
(4) Once Redress Scotland has carried out its assessment, it must inform the Scottish Ministers who must, as soon as reasonably practicable, provide the solicitor who made the request with—
(a)
(a) the outcome of the request, and
(b)
(b) a summary, provided by Redress Scotland, of the reasons for that.
(5) Redress Scotland may dispense with any of the requirements under this regulation if satisfied that the solicitor had a good reason for not having obtained authority in principle to undertake the legal work prior to undertaking it.
Review of assessment of prior approval
6.—(1) A solicitor may request that Redress Scotland review the assessment made under regulation 5, where the outcome of the assessment is that Redress Scotland—
(a)
(a) is not satisfied, in accordance with regulation 5(3)(a), that authority in principle to undertake the legal work ought to be given, or
(b)
(b) considers that an additional sum lower than that specified by the solicitor under regulation 5(1)(b) is appropriate.
(2) A request under paragraph (1) must be made in writing to the Scottish Ministers and contain or be accompanied by any information that the solicitor considers relevant to the review requested.
(3) The Scottish Ministers must, as soon as reasonably practicable after receiving a request for a review under paragraph (1), provide the request and any information accompanying it, to Redress Scotland.
(4) On receipt of a request under paragraph (3), Redress Scotland must assess it.
(5) Once Redress Scotland has carried out its assessment, it must inform the Scottish Ministers who must, as soon as reasonably practicable, provide the solicitor who made the request with—
(a)
(a) the outcome of the request, and
(b)
(b) a summary, provided by Redress Scotland, of the reasons for that.
Assessment and notification of certain fee payment requests
7.—(1) The Scottish Ministers must, as soon as reasonably practicable after receiving it, send Redress Scotland—
(a)
(a) any fee payment request made under regulation 2(1)(a) which gives rise to a requirement for a decision of the type mentioned in regulation 2(2), and
(b)
(b) any fee payment request made under regulation 2(1)(b).
(2) On receipt of a request under paragraph (1), Redress Scotland must assess it and inform the Scottish Ministers of the outcome of that assessment.
(3) Once the Scottish Ministers have been informed of the outcome of Redress Scotland’s assessment under paragraph (2), they must, as soon as reasonably practicable—
(a)
(a) notify the solicitor who made the request of the outcome, and
(b)
(b) provide the solicitor with a summary, provided by Redress Scotland...
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