Chamber and committees

That will be the case. The regulations contain a power of discretion as to whether consideration should be given to the response to a potential error that has emerged. In other words, there is no obligation in the regulations to take such a course, but there is provision for consideration of any steps that might be taken in that respect. Of course, the issue that Mr Mundell has raised would be material to such a consideration.

Thank you, convener, and thank you to the committee for inviting me to speak in support of the affirmative instrument that is before you.

Section 97 of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 makes provision for the recovery by the Scottish ministers of payments other than redress payments that were made due to a “relevant error”. The payments to which section 97 applies include those made in respect of expert reports, payments made by way of reimbursement of costs and expenses, and legal fees in connection with a redress application or a proposed application.

A “relevant error” can be either an error that occurs when making the payment—for example, an administrative mistake—or an error that ministers consider materially affected the decision to make the payment. That situation may arise in a case where the decision to make the payment was simply wrong, or where that decision was right but the information on which it was based was incorrect or misleading.

The draft regulations provide for reconsiderations of decisions to make the payments mentioned in section 97(2) of the act where an error, as defined in regulation 2, may have been made. The reconsideration is to be conducted by a panel of at least two members of Redress Scotland. Before it takes place, the beneficiary of a payment will be given eight weeks to make written representations to the panel. If the panel finds that the decision was materially affected by error, it must redetermine it on the basis of how it would have been decided had the error not been made.

We hope that, in practice, the process will rarely be used. It will be invoked only in cases in which there is cause to believe that there has been material human error or it is thought that a decision to make a payment may have been materially affected by error because it was based on misleading or incorrect information.

It is important to note that, when there is an error in making a redress payment, it does not follow that all decisions to make payments linked to it are materially affected by error. For example, legal fees may have been paid to a solicitor in making a redress application for a person who is offered a redress payment. If it later comes to light that the application was fraudulent and no redress payment should have been made, the decision to pay the solicitor’s legal fees will not be referred for reconsideration unless it is suspected that the solicitor had also fraudulently claimed the fees.

In the interest of fairness, the draft regulations include a right to review the outcome of a reconsideration process. If a review is requested, it is to be determined by a panel of Redress Scotland that is different from the one that conducted the reconsideration. A person who requests a review is able to provide further information and written representations to the review panel.

As the committee will be aware, the importance of sound processes and fraud prevention measures was considered throughout the development of the 2021 act. That is why we have put in place measures to ensure that appropriate financial recovery is available where payments have been made in error. The draft regulations supplement that work and set out the detail of how potential errors in non-redress payments will be considered.

I seek the committee’s support for the draft instrument, which is part of our preparations towards launching the scheme.

I am happy to answer any questions.

That is unlikely. I cannot rule it out in all circumstances, but it is more likely that it will be solicitors, psychologists or providers of some form of service who will be in question. However, as Mr Mundell has pointed out, due consideration must be given to the potential impact on survivors of any reawakening or reconsideration of a particular case. Mr Mundell has actively participated in the debates on the redress legislation, but we all know the damage that has been done to survivors and how difficult and challenging they find this process, and I want to assure the committee that I do not view the application of the regulations with any automaticity. We have to exercise the regulations with care, and one of the issues that has to be considered is the very valid point that Mr Mundell has just put to me.

That is correct. We expect to lay those regulations shortly and will perhaps put them before the committee some time in the new year.

Mr Ewing has put to me three substantive questions, all of which are absolutely legitimate.

On the first question, we have not undertaken any modelling of expectations of fraud. We have undertaken modelling of the number of applications that we consider it likely that we will have to deal with in the scheme. That modelling information is enhanced by our experience of the advance payment scheme, which has given us a sense of the likelihood of applications coming forward. Therefore, there has been modelling, which has underpinned the financial memorandum for the scheme. The modelling also influences the discussions and dialogue that we have with providers of care, to whom we are looking to provide financial contributions to the scheme.

We have not carried out modelling of the likely quantity of cases that might be affected by error. The reason is that the instrument is about creating a proper architecture for financial control and giving financial assurance about the operation of the scheme. An entirely new scheme is being created, so we have to ensure that we have the appropriate financial architecture in place. The instrument is one element of that architecture.

Mr Ewing’s second point is about the threshold of evidence. During the committee and chamber deliberative processes relating to the act, we discussed the issue extensively. The question is finely balanced, because the redress scheme is available to members of the public who have suffered abuse but who are likely to be unsuccessful in pursuing a claim through the civil courts.

If it is possible for an individual to pursue their claim through the civil courts—and if it is their judgment that the claim is strong and valid—they should do so, and sufficiency of evidence will be a critical factor in that respect. The scheme is predicated on a lower standard of proof than that in the courts, but that standard is still of sufficient credibility to enable a judgment to be made in each case. That has to be accepted in good faith, but, if we find that that is not the case, we will need remedies, and the regulations are therefore appropriate in that respect.

Lastly, we have engaged extensively with a range of schemes across not just the United Kingdom but the world to identify any lessons to be learned from their administration and organisation, and we have taken a lot of that learning into the design of the legislation that the Parliament has considered and passed. The provisions under consideration are our assessment of the legitimate provisions that must be in place to ensure that the scheme is robust and workable.

I completely understand Mr Mundell’s point, but I can clarify that the regulations that are before the committee relate not to redress payments to survivors but to legal fees and psychology reports and other relevant circumstantial reports where costs might have been incurred in error. The other instrument that I mentioned in my answer to Mr Ewing will look at the question that Mr Mundell has raised, and we will have an opportunity to air some of these issues again when those regulations come before the committee.

No—in fact, I would say the opposite, convener. It might be that there was an error in the process that requires specific action to be taken in relation to the process, not necessarily to the payment that has been made. However, there could of course be a relationship between the two.

I think that I have said all that I need to say this morning, convener.

Motion agreed to.

In my previous answer, I should have said for completeness that there will be areas that are much harder to penetrate than others. I have given some examples of where cultural change has happened. There are other areas that are more challenging.

One of the problems is that I could sit here and give a litany of examples of good practice, but I would struggle to say in all of them that they were systemic approaches. They might be good examples, but I am not sure that those approaches are happening everywhere.

That brings me to my response to your question about the appropriate care for individuals. I think that we have made very good progress on ensuring that people receive the care that is appropriate for their needs, but I live in the real world and I know that we currently have around 1,400 to 1,500 people who are experiencing delayed discharge in our hospitals. I do not think that that is because anybody in health and social care partnerships around the country is taking any view other than that they are keen to ensure that people who are in hospital and could be accommodated at home with a care package are able to be. They often face practical challenges in doing that. Some of those practical challenges might be to do with the availability of money. There may not be enough money to afford all the social care packages that we would want to afford at the local level because resources may be tied up in the more acute hospital settings.

Actually, I do not think that that is the problem that we have just now. As I have explained to Parliament on a number of occasions, the problem that we have just now is the availability of staff to deliver social care packages in communities. There are simply not enough available people on the ground to do so.

We got a leaflet in the mail to my house yesterday from a much-respected local care provider that invited people to come forward to join its social care staff. We have never had such a leaflet through our door before. That indicates the lengths to which care providers are going to try to encourage people to join the labour market because of the acute challenges that are being faced.

I go back to a point that I have just made. There will not be a health and social care partnership in the land that believes anything other than that an individual should be accommodated in the most appropriate setting for them. If a care package in the individual’s home is the most appropriate approach, the health and social care partnership will want to provide that. However, there will be practical impediments to their ability to deliver that, and the most important practical impediment just now is the availability of people to deliver social care in our communities.

Philosophically, we need to encourage organisations to follow one of the principles of the Christie commission—the principle of partnership and collaboration. There are various ways of taking forward an agenda of public service reform and one approach could be structural change. We have used that option in certain circumstances.

In other circumstances, a route could be taken around the theme of partnership and collaboration whereby we establish the atmosphere and motivations to encourage different public sector organisations that need to work together to do so effectively to meet the needs of individuals. As an example of that, some time ago I visited the team at Perth royal infirmary, which serves my constituency. A joint team of health and local authority staff work in a rather small room in Perth royal infirmary and they focus on intelligence coming from the hospital about who is almost ready to be discharged. They then work out between them the timescale and circumstances for that individual’s discharge and the necessary support within the community.

That, to me, philosophically brought to life what I am talking about here—public servants from two different public bodies working together in collaboration, focusing on individual cases, and working out how best to ensure that those individuals have a smooth journey out of hospital into their own home, and that they are well supported as they recover.

The route that was chosen there was collaboration, but a different route could have been chosen. Structural reform could have been undertaken, for example. However, encouraging public servants to focus on the delivery of the best possible outcomes for members of the public is a strong incentive.