The Church of England publishes details of its National Redress Scheme - an update as at 16th January 2024

On the 16th October 2023, I wrote an article about the Church of England’s forthcoming National Redress Scheme.

The Church has now published a draft Abuse Redress Measure, which sets out in some detail how their Redress Scheme is going to work. This was approved by the Church’s General Synod in November 2023.

The Measure consists of 22 clauses and we consider the main ones below.

Clause 3 sets out the criteria for entitlement. An applicant has to meet two conditions. Condition 1 is that the abuser was either someone in authority in the Church or the applicant had reasonable grounds to believe that they had authority.

This is useful in terms of establishing a claim, because very often abusers within spiritual organisations will take on a role of authority, despite there being no formal arrangement with the organisation itself. ??

Condition 2 is that there was a close connection between the activities authorised for performing that role and carrying out the abuse.

This condition is the second limb of the test, which is used by the courts to establish common law vicarious liability. If it is part of the abuser’s role within the Church to “look after” people in a spiritual or some other sense, then there would be a strong argument that the close connection test is met. However, problems would arise for an applicant where the abuser is a gardener or a caretaker.

Sub clause 3(4) restricts Condition 2. If the abuser was performing a role outside of the Church and that “outside” role had a closer connection to the abuse that the Church role, then Condition 2 is not met. This restriction would apply in the situation where you have a teacher in a Church school, who abuses in the course of his teaching. In that situation, liability would fall on the school, rather than the Scheme.

The Church’s Redress Scheme doesn’t appear to allow a claim where there has been a breach of duty or some kind of mistake made by the Church, for instance in allowing a convicted abuser into the Church, who proceeds to abuse children. In both the Lambeth Children’s Homes and Jesus Fellowship Church Schemes, such a claim was/is possible.

Clause 4 allows a claim to be brought by the “dependant” of a survivor of Church abuse. That person must “in consequence of the abuse, suffered mental or emotional harm or economic loss.”

So - the dependant (who could be a partner, dependant child or parent) has to prove that the survivor’s abuse has affected them as well.

(Clause 20 contains a detailed definition of what will constitute a partner or dependant child or parent.)

Clause 7(4) refers back to Clause 4. It says “The redress body may grant an application for redress under section 4 only if it is satisfied that there are exceptional circumstances which justify granting the application.”

(The explanatory notes to the draft Abuse Redress Measure say that section 4 means Clause 4.)

Clause 8(8) below then says:-

“The rules may provide that, in the case of an application by a person coming within section 4, this section applies as if the reference to compensation for having suffered abuse were a reference, or included a reference, to compensation for mental or emotional harm or economic loss suffered by the applicant in consequence of the abuse to which the application relates.”

In the Lambeth Scheme, the deceased’s survivor’s estate was permitted to bring a claim, but the claim was based on what the deceased survivor actually suffered by way of abuse. This could result in very generous compensation flowing to that estate. The Windrush Scheme also permits a claim to be brought by the estate of someone who would have fallen within the terms of the Scheme, when alive.

These Clauses envisage a very different sort of compensation. I must confess that they and their odd positioning within the Scheme rather puzzled me. Clauses 4 and 7(4) of the draft Abuse Redress Measure sound as if they are going to be applied very restrictively to dependants of deceased survivors, and it’s not clear how or why. Moreover, it’s not clear how a claim brought by a partner or dependant parent/child would be assessed in practice. ?

Clause 5 preserves the right of the applicant’s partner or child to continue the claim, if they die before it is finalised.

Clause 6(2) sets a time limit of five years for a claim to be made. That sounds like a long time, but in my experience, there will be many who either miss the cut-off date, or who simply never make a claim.

My advice to anyone who is contemplating making a claim to the Redress Scheme is to file a claim as soon as possible, preferably using the services of a solicitor. Moreover – as Schemes develop, it is not unknown for them to become less generous as the available money runs down, quite apart from the obvious point that a claim filed sooner, is paid sooner. My own firm took on around 60 claimants to the Jesus Fellowship Church Scheme before the scheme was actually published. Obviously these claims were filed first and most have been paid first.

Clause 6(3) says the final Scheme will specify when the abuse must have taken place. I would expect that time period to reach back many years if not indefinitely. In the Lambeth Scheme, there was no restriction on how far back the abuse could go. There were even claims from the 1940’s, which were met when Lambeth was London County Council.

Clause 6(4) says that the abuse can take place outside the United Kingdom.

Clause 7(2) provides that the application will be determined on the basis of “material” provided either by the applicant or the redress body or some other person. This is all rather vague, but this is a crucial clause which links in with the Clause below in relation to legal costs.

In the Jesus Fellowship Church cases, all of my cases proceeded by way of written witness statement, medical/therapy records with possibly a supporting statement from a relative or friend. Lambeth used a loose formula whereby each applicant would give a statement about what happened to them, receive their social services notes, obtain their medical records and then be examined by a joint psychiatrist. The kind of material submitted by a lawyer acting for an applicant will depend very much on how much they are being paid, given that expert psychiatric reports can come in at ￡5,000 plus. Consequently it isn’t clear what kind of evidence, an applicant will need to produce and how all this work is going to be paid for. ??

Clause 7(3) says that the applicant does not need to have reported the matter to the police, the local authority or the Church. If the applicant has a criminal record, that does not prejudice their ability to make a claim. With the government’s Criminal Injuries Compensation Scheme, a criminal record can make a claim impossible, as can a failure to co-operate with the authorities. This sub clause is eminently sensible.

Clause 8 talks about the way in which awards will be calculated. This clause gives no details as to the precise mechanism, but it is thought that the Church’s Scheme will employ bands of compensation, aligned to common law awards made by courts. There are provisions for offering an applicant financial advice and possibly getting the government to exempt applicants from losing their benefits if they receive compensation. I stress “possibly” because normally an applicant whose capital exceeds the DWP threshold and who is on means tested benefits would either have to set up a trust or rely on the 52 week rule in order to protect their means tested benefits. ?

There is provision for a previous award of compensation to be deducted from any subsequent award. This is a common clause in such Schemes.

Clause 9 provides for the Church to make an interim payment. This is always welcome. Lambeth paid a “Harm’s Way Payment” fixed by reference to the applicant’s time in care. ??

Clause 10 provides for an appeal mechanism, where an application is refused or the amount of an award is not enough. The Church proposes to use the services of a senior member of the judiciary, which approach was taken in the Lambeth Scheme.

Clause 17 contains provision for legal costs. This is key if applicants are to instruct solicitors, and as I have pointed out in my previous article, the absence of legal representation in a Scheme leads to chaos, as happened in the Windrush Scheme. However, this clause is vague as to precisely what will be paid.

Lambeth employed a scheme whereby hourly rates were agreed between themselves and solicitors acting for applicants, but they controlled the expenditure of disbursements very tightly. My experience was that this system worked relatively well.

If the Church fixes costs, as was done in the Jesus Fellowship Church Scheme, this effectively limits the investigations that a solicitor can make for an applicant and the evidence that they can bring to bear in support of an application. That is not necessarily a problem, where the evidence to be presented is relatively simple and the organisation is relatively small with detailed lists of who was a member or a dependant of a member during its existence.

However, the Church of England is a vast organisation, composed of many small organisations, performing a wide variety of roles both in this jurisdiction and outside it. I anticipate that there will be many difficult cases which come before this redress scheme, which raise all manner of questions as to eligibility. If costs are fixed, then the result will be that applicants may find it impossible to instruct a solicitor.

The draft Abuse Redress Measure is accompanied by a briefing note and an explanatory note.

The briefing note says that “Work is underway to design a series of award bands which will be announced as soon as the Project Board has made sufficient decisions in this regard.”

This means that the awards made under the Redress Scheme will be assessed in a similar fashion to that seen in the Lambeth Children’s Home and the Jesus Fellowship Church Scheme, both of which employ "bands" of awards. These bands are designed to mirror (as far as possible) the awards made by the courts. We still don’t know whether loss of earnings or therapy/medical treatment will also be paid, as was the case in the Lambeth Scheme.

The explanatory note gives more information about the meaning of the Clauses in the Draft Abuse Redress Measure. It also contains information about how the Scheme is to be funded:-

?“The Scheme’s approach to funding is based on a shared commitment between the various parts of the Church. As General Synod is aware, the Scheme will be underpinned by up to ￡150 million provided by the national Church. The draft Measure makes provision for contributions from the body closest in governance terms to where the abuse occurred or was instigated, for example the parish, diocese, theological educational institution (TEI), cathedral, religious community, mission agency or bishop's office. It is hoped that, in certain circumstances, such a body may be able to discharge at least part of that contribution from insurance (for example where there has been no previous financial settlement). Going forward, the draft Measure requires such bodies to maintain policies of insurance which cover liability for abuse.”

This paragraph recognises the fact that the Church of England comprises a large number of free-standing legal charitable bodies, each subject to the oversight of its own trustees or the equivalent. The Church Commissioners have already committed a sum of ￡150 million towards the Scheme, but organisations within the Church are expected to contribute where the abuse occurred under their watch. The Church is in the process of working out a mechanism whereby a contribution is made. Apparently no organisation will be asked to contribute beyond its means and their liability will be capped. Moreover, this process will not delay the payment of any Applicant to the Scheme. There is more detail about the contribution process in the draft Abuse Redress Measure.

The Scheme will be administered by an “operator” who will probably be a firm of solicitors with experience in this area. Both Lambeth and the Jesus Fellowship Church instructed experienced firms of solicitors to administer their Schemes, as well as providing a dedicated team, who processed the initial applications, make relevant checks and disclosures and worked alongside the lawyers. I would expect the Church of England to have such a team in place.

We should know who the operator is going to be next month - February 2024. ?

The Abuse Redress Measure remains a draft. There will be an update on its progress in February 2024, and it is expected to return to the General Synod in July 2024 with the Final Drafting and Final Approval stages being taken as soon as practicable thereafter. Likewise, the Church is not in a position to produce the final Scheme. That awaits a process of consultation and further work by the Church Project Board, as well as input from the chosen operator.

I would expect the Redress Scheme to begin at some point in the autumn of 2024.

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

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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 Fellowship Church Individual Redress Payment Scheme.

He can be contacted on [email protected].

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