Published: 27th August 2024
Area: Abuse Claims
News | Abuse Claims
Contact us now View our compensation schemesThe Church of England has published an amended draft Abuse Redress Measure. In previous articles I have considered the earlier draft Abuse Redress Measure and how the Church’s compensation scheme was likely to work.
The Abuse Redress Measure has now undergone amendment as of July 2024, and I consider some of the main amendments below.
I have previously stressed the importance of providing adequate legal representation for survivors of abuse applying to this Scheme. I now regret to say that in my view, comments made by the Church’s Revision Committee (which I set out below) indicate that the Church will not be providing adequate funding for legal representation.
My prediction is that this represents a major flaw in the Church’s compensation scheme.
However, turning first to other matters, in a previous article, I said that I expected the Scheme to begin in the autumn of 2024. House of Survivors, a support group for survivors of abuse in the Church of England has published a paper on the Scheme, which says that hopefully the Scheme will incept in September 2025.
https://houseofsurvivors.org/churchofengland-redress-scheme/
For anyone who wants to know more about the Church of England and its abuse scandals, the House of Survivors website is a valuable resource.
I think that the September 2025 incept date is realistic. The Project Board of the Church of England, which is working on the Scheme has said that it will take until the end of the year to finish its work following which the Church has to enact legislation in Parliament to get a Scheme into force.
House of Survivors also expects the total bill for the Scheme to be around £500 million. This is a vast sum well and above the £150 million that the Church of England said in June 2023 that it was setting aside. It is also far more than the £120 million that Lambeth Council predicted that it would have to pay applicants to its Scheme.
This sum will have to come from the Church of England’s own coffers. In February of this year, the Church published a paper, reporting on the decision of Ecclesiastical Insurance not to support the Scheme.
https://www.churchofengland.org/sites/default/files/2024-02/gs-misc-1372-redress-final.pdf
This is what the Church said:
“Having completed their analysis of our current Scheme design, the insurer’s analysis is that payments of financial awards to survivors as part of the Redress Scheme through the Scheme Administrator would conflict with the existing insurance contracts they have with individual parishes and other church bodies, which they will continue to honour, and so they will not participate in the funding formula which the Project Board had approved.”
Insurers do not necessarily contribute to Schemes. Lambeth had to fund its Children’s Homes Redress Scheme by borrowing money from central government and without assistance from insurers. By contrast, in the compensation scheme set up the Jesus Fellowship Church (the “Jesus Army”) and in at least two other schemes, in which I have participated, there has been a contribution from insurers.
It’s possible that Ecclesiastical Insurance had concerns about the wide-ranging nature of the Church of England Scheme and how much it might cost. Obviously insurers need a relatively accurate estimate of their liability, and that may have caused difficulties. With the Lambeth and Jesus Army Scheme, the operators of the redress scheme had a list of all the people who had been either children in care or who had been members of the church. So – they had a relatively good idea of how many people might make claims and how much those claims would cost. In both cases, my understanding is (both Schemes are still paying out) that the likely final bill is not far off the original estimate. The Church of England’s Scheme does not restrict eligibility to “members” – a victim could be anyone who has been abused in a church setting. We now hear from House of Survivors that the total bill for the Church of England’s Scheme may be as much as half a billion. In terms of affordability and as at the end of 2022, the Church reported that it had assets of £10.3 billion, which generate income each year.
We now come back to the amended Abuse Redress Measure.
In June 2024, the Church of England published a report from their “Revision Committee” on an amended Draft Abuse Redress Measure ahead of the July General Synod, and on 09.07.24, members of the Synod considered those proposed amendments. This article considers some of those amendments.
Details of the Revision Committee’s deliberations can be found in the papers published by the Church at:
In passing, the July General Synod papers contain a “Review of Abuse at Soul Survivor”, which expresses concerns about the Church’s decision to conduct an internal inquiry into the activities of Mike Pilavachi at Soul Survivor. The papers also contain the draft Safeguarding (Clergy Risk Assessment) Regulations 2024, which replace the current 2016 Regulations and a preliminary report on “Trust and Trustworthiness within the Church of England.”
Moving back to the amended Draft Abuse Redress Measure, the Revision Committee considered various representation made by members of the General Synod.
Clause 3 sets out the criteria for entitlement and it now defines abuse as including sexual, physical, spiritual, and financial abuse as well as neglect and maltreatment.
Clause 5 is a new clause. This sets out a provision for applications to be made by children, who should have an appropriate adult to represent them. Such provision is found in civil litigation and is perfectly sensible. However, in civil litigation, any settlement reached by a child or a person without mental capacity needs court approval before it is binding. Lambeth’s Scheme contained a clause that allowed such a claim to be approved by a court and for the costs of that approval to be paid by Lambeth. Clause 5 contains no mention of any court approval being sought for a child, and it does not appear that the substantial extra costs of court approval would be met. Moreover, nothing is said about applicants to the Scheme who lack mental capacity.
Clause 9(2)specifies that when an award is made, the Church must specify any aggravating factor. This is a good idea. In abuse compensation awards made by the courts, damages can be enhanced if there is a particular feature about the abuse that is “aggravating”. Examples are the abuser forcing their victim to give evidence against them at trial, or the abuse is coupled with racial abuse or financial exploitation. In the Lambeth Scheme, many applicants received an enhanced amount of £10,000 for racial abuse.
Clause 11 is new. This says that anyone who brings an application to the Church’s Scheme waives the right to bring a civil litigation claim. That is a clause commonly found in other Schemes, although other Schemes allow the applicant to put civil litigation on hold whilst their application is determined under the Scheme. This enables them to go back to a court if the Scheme doesn’t produce a favourable settlement. With the Church’s Scheme, the applicant abandons a civil claim and cannot go back to it later.
Clause 11(2) is worrying. This says that where a child brings an application to the Church’s Scheme (through an appropriate adult) they waive their right to civil litigation regardless of the rules of civil litigation (which require court approval). Again, this suggests that the Church does not intend for the usual rules of civil litigation to apply to children or adults without mental capacity. Therefore with the Church’s Scheme, once an application is made or settlement is accepted on behalf of any such applicant, it is binding regardless of the law of civil litigation.
Clause 13(2) introduces a new clause, which requires an applicant wishing to appeal an award to seek “permission.” This is apparently intended to “prevent appeals with no objective merit, which would delay the operation of the Scheme and, thereby, hinder the achievement of its objectives.” The Lambeth Scheme had an appeal system, but there was no permission required. The Jesus Army Scheme provides for a simple request for a review. To my mind, this indicates that the Church of England Scheme contemplates that most applicants will not be legally represented. I say this because if an applicant has an experienced lawyer from start to finish of their application, that lawyer provides a crucial check on a hopeless appeal being made.
Clause 22 contains a provision for legal costs. In previous articles, I expressed concerns about this clause and about how legal representatives, acting for survivors would be funded. Experience of other Schemes shows that if insufficient provision is made for legal costs, then at best, the applicant will be paying their solicitor out of their compensation or at worst, the Scheme does not work as happened with the Windrush Scheme.
Clause 22 remains very vague and talks about rules being made to set the amount of contribution. However, we now know what the Church has mind because the following is what the Revision Committee had to say about legal costs:-
“The Committee was advised that the Project Board had recommended that the Scheme should fund independent legal advice to applicants to the extent that they would be assisted to understand the basis on which any financial offer is made. It is the intention that this funding will be based on a set tariff, and only external legal advisers with specified accreditation will be funded. The Committee noted that clarity in this regard would be required to mitigate any arguments so far as possible.”
One of the members of the Revision Committee proposed the insertion of a new clause, to read: “The amounts payable to a solicitor acting on an application for redress or an appeal under this Measure shall be on a scale consistent with the costs incurred by the redress body in obtaining legal advice and services in such cases”.
The reply of the Committee was puzzling. The Committee said that this new clause would be “unworkable since the redress body is a law firm, and therefore it does not need to seek legal advice. In any event, the nature and amount of advice required by a person applying for a redress payment, and the party making the payment will be inherently different because of the nature of the tasks that the redress body will be required to undertake (and therefore the legal cost may be commensurately greater in any case).”
It seems that the central point about legal costs in the compensation scheme was missed.
Survivors of abuse may understandably feel that lawyers’ fees are the least of their problems. My experience is that by the time they make their application, they then discover that they cannot access an experienced lawyer, by which time it is too late.
It is disappointing that this clause seems to have attracted no more than two separate representations made to the Revision Committee.
This is what I think the Committee’s words (in bold above) mean. A relatively small amount of money will be paid by way of legal costs to an applicant’s lawyer. In practical terms, this means that survivors of abuse applying to the Church’s Scheme will have to pay their solicitors out of their compensation. There is no way that any claim (the Scheme proposes an upper limit of £660,000) can be run economically if legal costs are limited in this way. In relation to “accredited solicitors”, it is not clear how this would work, but if a condition of accreditation is that the solicitor restricts their fees to the Church’s tariff, then I expect many experienced solicitors in this area to decline to participate.
Failure to pay adequate legal representation for compensation schemes is a fundamental mistake that ultimately creates huge difficulties for those operating compensation schemes, the survivors and their representatives. It is actually in the Church’s interests to have survivors properly represented by lawyers. The alternative is that those operating the Scheme receive applications made without the benefit of legal advice, from applicants who cannot possibly be expected to understand what kind of claims they should be making or what kind of evidence they should be producing. Typically, it takes a very long time to disentangle from those applications, the kernel of what is being claimed. The Church may believe that by limiting legal costs, it is saving money but in fact it has made a rod for its own back, and survivors will be left confused and anxious by the legal maze into which they have stumbled. This is what happened with the Windrush Compensation Scheme and it will happen with the Church of England’s Redress Scheme. I would like to say that the devil is in the detail of the present Abuse Redress Measure, but in fact it resides in the deliberations of the Revision Committee.
Just after writing this article, I came across a post on Linked In about the Horizon Convictions Redress Scheme, which will enable victims of the Post Office scandal to secure compensation. This is launched by the Department for Business and Trade. According to the post, costs are paid by the Post Office so applicants keep 100% of their compensation.
Of course, the present Abuse Redress Measure is not set in stone, but it appears that the Church is set on a path of severely limiting lawyers’ costs.
My final point is that Clause 27(8) is new. This extends the scope of the Redress Scheme to the “diocese in Europe” so in theory a person who suffers abuse outside the UK, but in Europe could make a claim.
Information about the Church of England’s National Redress Scheme can be found on the Safeguarding section of the Church’s website at:-
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