The Church of England National Redress Scheme – what is it likely to contain? ?

On the 6th October 2020, the Independent Inquiry into Child Sexual Abuse found that the Anglican Church had failed to protect children from sexual abuse. The Church’s proposed National Redress Scheme is a part of its response to that finding.

The Church has said that the purpose of its Redress Scheme is to demonstrate in tangible and practical ways that the Church is truly sorry for its past failings relating to safeguarding. To that end, in February 2020, the General Synod had already committed to a more victim and survivor-centred approach, which included making arrangements to provide redress.

The proposed scheme is also informed by the Accountability and Reparations Investigation Report September 2019 produced by the Independent Inquiry into Child Sexual Abuse. Part F of this Report examined the operation of redress schemes as an alternative to the existing systems of criminal and civil compensation.

It should be borne in mind that the Church and its insurers have already adopted a series of “Guiding Principles” for the resolution of civil claims against the Church.

https://www.ecclesiastical.com/fororganisations/claims/abuse-claims/index.aspx

However, the introduction of a National Redress Scheme by the Church is bound to go much further than the civil claims process.?

I myself have experience of several compensation schemes, including one set up by a religious organisation, the Jesus Army in September 2023. I have also represented a number of Claimants to the Lambeth Children’s Homes Redress Scheme, which closed on the 1st January 2022.?

Over the years, I have written a number of articles on the subject of redress schemes for survivors of abuse. You can read some of these on my Linked In page at :-

·??????????????? The Jesus Army Compensation Scheme begins for abuse 26th September 2022

·??????????????? What's wrong with the Windrush Compensation Scheme? 14th March 2021

·??????????????? The Historical Institutional Abuse Redress Board in Northern Ireland – How does it work? 14th June 2020

I have also written a number of articles about the Lambeth Children’s Homes Redress Scheme.

Brief details of the Church’s scheme were published in June 2023.

Information about the Church of England’s National Redress Scheme can be found on the Safeguarding section of the Church’s website at :-

https://www.churchofengland.org/safeguarding/redress-scheme

The scheme itself is not yet ready and as yet there is no commencement date. In terms of implementation, a draft measure is expected to be brought to the Synod of the Church of England in November 2023 or February 2024. Thereafter any scheme will require Parliamentary approval.

There is a Survivor Working Group that meets regularly to consider different aspects. I would comment that from my experience, input from survivors is a key point around the creation of these Schemes, although in reality it will be the Church and its insurers who make the final decisions.

So – what is this redress scheme likely to contain?

Non-financial measures

As with all redress schemes of this nature, the Church’s scheme will offer in addition to financial compensation, “therapeutic, spiritual and emotional support” as well as “acknowledgment of wrongdoing on the part of the Church, apology and support to survivors of Church-related abuse.”

How many people are likely to make claims?

According to the report of the Independent Inquiry into Child Sexual Abuse, the Church’s insurers, Ecclesiastical Insurance dealt with some 217 claims between 2003 and 2018. The Church’s allocation of some ￡150 million for the Scheme (see below) suggests that they expect a considerable number of claims, perhaps going by the experience of Lambeth – perhaps some 2000 claims. ?

How much will be paid?

In terms of compensation, there are no details as to how much will be paid. Both the Lambeth and Jesus Army Scheme used a tariff, but these tariffs were aligned to common law rules and were far more flexible and generous than the fixed awards for injuries set out in the Criminal Injury Compensation Scheme. In addition, Lambeth’s scheme allowed a modest payment for loss of employment and educational prospects, as well as awards for therapy and care. The Jesus Army Scheme simply allows one payment, which is aligned to a “pain, suffering and loss of amenity” award in a common law case. These awards compare much more favourably than with other Schemes such as the Islington Support Payment Scheme where there was one “financial support” payment of ￡10,000 per survivor. ?

I would guess that the Church of England will adopt a flexible tariff similar to that seen in the Lambeth and Jesus Army Schemes. I would hope that there is some scope for loss of employment, care and therapy but given the fact that these awards can sometimes be substantial, I would anticipate that either nothing will be paid for these heads of damage, or there will be a fixed and limited amount payable.

In terms of finance, the Church Commissioners’ board (which administers the property of the Church), has agreed to allocate ￡150 million in funding to be released once the key parameters of the Scheme are in place. This compares with the ￡120 million originally set aside by the London Borough of Lambeth for its own Scheme. At the last review, that scheme had paid out around ￡92 million to just over 2200 survivors of abuse in Lambeth’s children’s homes. The total cost of the Lambeth scheme (including the costs) is expected to be between ￡153 million and ￡177 million. In relation to the Jesus Army scheme, I estimate that there are some 250 applicants for what is known as an “Individual Redress Payment”.

What happens if the applicant has already made a civil claim?

Some survivors will already have received compensation from a civil claim. The Church’s scheme is almost certain to have a clause, which allows them to deduct from an applicant’s redress scheme award, the amount that they have received by way of compensation in a civil claim. However, there might be scope to enable the applicant to “top up” their scheme award by bringing an application in relation to abuse that was never compensated in the civil claim.

Will the Church pay legal costs?

There is a procurement process to identify a solicitor’s firm with the necessary expertise and experience to administer the Scheme. With the Lambeth Scheme, the law firm, Kennedys was chosen for that role. The instruction of solicitors by the Church to administer their scheme means (I would hope) that applicants will have their legal costs paid in some shape or form. Lambeth paid applicants’ solicitors on an hourly basis with agreed rates. In the Jesus Army, a flat sum of ￡2500 plus VAT is paid for each Individual Redress Payment claim regardless of its size. The costs paid in both of these schemes are a fraction of the costs seen in civil litigation, which partly explains the attraction of compensation schemes with organisations such as the Church.

The absence of any provision for legal costs in a scheme, would create (in my experience) chaos for the solicitors administering the Church’s scheme, and injustice for applicants who may have to pay solicitors out of their compensation. That was what happened in the Windrush Compensation Scheme, where the Home Office body set up to administer the scheme expected applicants to bring what were - in many cases - very complex claims. The Historical Institutional Abuse Redress Board in Northern Ireland paid a fixed amount of costs, which could only be described as inadequate. Expecting applicants to submit their own applications is simply an own goal, which results in those administering the scheme having to deal with either very brief or very lengthy statements, and spending a great deal of time, trying to work out whether there is a claim.

What will be the criteria for making a claim?

The Church has said that applicants to the Redress Scheme will be assessed according to agreed criteria, which will be whether they qualify, and secondly, as to what level of financial redress is appropriate to their experience of abuse. These are standard criteria for any Scheme.

The Church has said in a FAQ statement that “All survivors of sexual, physical, psychological, and emotional abuse, including spiritual abuse, perpetrated by someone representing the Church of England, will be eligible to apply for redress.”

There are a number points to be drawn from this statement. Firstly, I would imagine that both child and adult victims of abuse would be able to claim. ?The recent abuse scandal involving the evangelist, Mike Pilavachi demonstrates the vulnerability of adults in this kind of faith based scenario. Secondly, the scheme covers all types of abuse, not simply sexual abuse, which tends to form the subject matter of most civil claims. In my experience of the Jesus Army scheme, emotional or spiritual abuse makes up the foundation of a large part of the claims, with which my firm deals. This is because perpetrators will commonly use religious belief to try and exert control over their victims. The effects can be catastrophic.

Thirdly, the FAQ statement from the Church indicates that eligibility depends on the perpetrator being in a position of employment or something “akin” to employment, which is the common law test for fixing the Church with vicarious liability in a civil claim. This is also a rule commonly found in abuse compensation schemes.? The Church has already set out the way in which this rule will operate. In one paper, which I found - ?

https://www.churchofengland.org/sites/default/files/2023-06/gs-2305-redress-gs-paper-july2023.pdf

the Church said:-

“Hypothetical examples cannot cover all the contexts in which redress might be offered, but one example might be where abuse is perpetrated by a parish youth worker (paid or volunteer) who is also a swimming coach and carries out these duties distinctly, with completely different teams of colleagues and in separate locations. If they harm someone they meet through youth work and not through swimming, then the situation is within the scope of the Church of England Redress Scheme, but if they harm someone they meet through swimming then it is not in scope.”

However, it also appears that there is no scope for “peer on peer” abuse i.e. abuse by another Church member who does not “represent” the Church. In the Lambeth Scheme, survivors were routinely compensated for abuse by other children and in some cases, “visitors” to the homes.

How long will the Scheme be open and will there be a limitation clause?

The Redress Scheme will run for at least five years. This is relatively generous compared to Lambeth, which ran for four years and the Jesus Army, which runs from September 2022 to the end of this year.

However, there is no limitation clause applied to claims to the Scheme – in terms of how old the allegations of abuse are. This is a common feature of private child abuse compensation schemes. In fairness to the Church, their insurers have said that in civil claims, this defence will be used “very sparingly” and “only in exceptional circumstances.”

https://www.ecclesiastical.com/fororganisations/claims/abuse-claims/index.aspx

Practically speaking applying a limitation bar in this kind of scheme, would effectively debar all but a few from making a claim and would involve endless arguments, which would lead to the scheme grinding to a halt. ?

What kind of evidence will be required? ??

The FAQ’s also say that applicants to the Redress Scheme will have to confirm details of their experience so that it is clear to those assessing the application that the abuse was more likely than not to have occurred. Again this is a common feature of such schemes. They adopt the normal standard of proof test found in civil claim. However in my experience, this generally means that for all practical purposes, the statement of the applicant is simply accepted as it stands.

This is a key point. For a Scheme to work practically, it is essential that applicants, their solicitors and those administering the Scheme do not get bogged down in arguments as to whether abuse actually occurred. In the Lambeth and Jesus Army Schemes, there was and is very little in the way of dispute as to whether an applicant’s account was true or not. It is very difficult if not impossible in a child abuse case, for a victim to provide corroboration from someone who saw the abuse took place.

How the Scheme work out in practice and how long will each application take to conclude? ?

The Survivor Working Group, set up by the Church, has said that any scheme needs to be “Practical and workable” as well “Timely”.

In terms of practicality, the Church of England would not want to repeat the experience of the Windrush Compensation Scheme, where there were inadequate resources to deal with a flood of applications, mainly brought by unrepresented applicants, who were describing injustices that went back decades.? This led to severe delays in processing the applications. The Scheme needs to be adequately resourced in terms of staff by both the Church and whichever law firm is chosen to administer the Scheme.

Those staff need to be trained in adopting a consistent and transparent approach. Very often with schemes, one finds (generally at the outset) that decisions made on eligibility and assessment by those administering the scheme, are not always consistent. This is inevitable, as the legal advisers who participate in the scheme become used to the way in which it actually works in practice. That way may well be very different from what the scheme says in its black letter terms. With the Lambeth scheme for instance, it was initially thought that child on child abuse might be very difficult to recover as it required evidence of negligence. In fact – no such evidence was required in practice. By contrast with the Jesus Army scheme, child on child abuse has proven very difficult (but not impossible) to recover. ??

Moreover, as pointed out above, one of the weaknesses of both the Windrush Compensation Scheme and the Criminal Injuries Compensation Scheme is that those administering the Scheme sometimes get tangled up in requesting records from various agencies or asking questions of the applicant. There needs to be a quick decision on eligibility, followed by a swift assessment.

This could cause problems for the Church of England, as many applicants may not have informed the police or any other authority of their abuse. Police involvement is a key component of Criminal Injuries Compensation Scheme claims, whilst in the Windrush Scheme, extensive checks can be run through the Department for Work and Pensions, HM Revenue and Customs and other statutory authorities. With the Lambeth Scheme and the Jesus Army Scheme, the scheme operators have extensive records of children and adults who had passed through their organisations. The various Dioceses of the Church and its religious offshoots may not have the same quality of information.

The way in which claims are assessed can slow down the timetable quite considerably. The average time for an application in the Lambeth Scheme to be concluded was (in my experience) around two years, whereas for the Jesus Army it can be as little as six months. The reason for the disparity is that in the Lambeth Scheme, there was scope to instruct a joint expert – normally a psychiatrist. That meant obtaining social services and medical records, which could take some considerable time when added to the time spent by Lambeth in assessing each claim for eligibility. With the Jesus Army, although there is scope for the instruction of a psychiatrist, this is only intended for a very small minority of cases, which means that the main evidence to be submitted is a detailed statement plus medical/therapy notes.

Conclusion

The Church of England told the BBC in June 2023 that it had “plans for…….the broadest and most ambitious compensation scheme of its kind for victims of abuse.“

One can only speculate about what kind of scheme we will see, but what is important is that survivors approach a solicitor as soon as possible and preferably prior to the scheme coming into operation.?

Malcolm Johnson is head of Lime’s Abuse Compensation Department. He has experience of representing Claimants in a number of schemes, including the Lambeth Children’s Home Redress Scheme and the Jesus Army Individual Redress Scheme. He can be contacted on [email protected]. ??

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