Church of England National Redress Scheme: Update as of 26th April 2024

Yesterday, the Church published details of the awards that it proposes to make to survivors of abuse. It has put together a “framework” which will be used to calculate offers of financial redress. This has yet to be approved.

The publication of a draft framework follows the announcement on the Church’s website in March that following a tender process, it would be appointing Kennedys solicitors to manage its Redress Scheme. The appointment of Kennedys is significant because this is the firm that helped create and which administered the Lambeth Children’s Homes Redress Scheme.

My own experience of that firm’s handling of that Scheme was positive. Kennedys ensured at the outset of the Scheme that they had meetings with the individual firms of solicitors who represented survivors and when awards were made, they provided detailed reasons. There was a limited but workable review and appeals process. Inevitably there were disputes around the interpretation of the Scheme and the awards made, but there was very little in the way of procedural issues, which are the bane of civil litigation in the courts. It did take a long time to get an award, but again that was inevitable given the level of investigation that was permitted into individual survivor’s cases. Consequently, I would expect that Kennedys would adopt the same approach in relation to the Church’s Redress Scheme. They undoubtedly have the necessary experience and expertise.

So we now have an indication as to how much the Church will pay to survivors.

The Church says that ”if approved through the Church of England’s legislative processes, the framework would result in individual awards of between £5000 and £660,000 in rare and exceptional circumstances.”

The first point to be made is that an upper award of £600,000 is very much more generous than the awards made in the Lambeth Scheme. In that Scheme, there was an upper cap of £100,000 on an award based loosely on the civil courts’ assessment of “pain, suffering and loss of amenity” and there was an additional award of up to £25,000 for loss of education and earnings capacity. However, some survivors achieved awards over £125,000 by including claims for therapy or care, or where their claims for loss of earnings were very strong. The awards made in the Lambeth Scheme were relatively generous compared with the anecdotal average paid to survivors of abuse in the civil courts.

The Windrush Scheme made awards of up to £100,000 (and potentially more) for “impact to life” together with loss of earnings and other benefits. At first sight – this appears relatively generous, but the fundamental problem with the Windrush Scheme was that survivors found it extremely difficult to prove their cases, and the Scheme did not provide any legal costs for lawyers, a key provision that was present in the Lambeth Scheme.

The Jesus Fellowship Church (known as the “Jesus Army”) set up a Scheme to compensate former members who were survivors of abuse. This Scheme was very much simpler than Lambeth or Windrush, and it used a loose tariff, which was based on the act of abuse perpetrated on to the survivor. By way of example – up to £50,000 was paid for rape. However, the Scheme also provided for compensation to be paid for the effect of the abuse, following civil court decisions and in practice, awards were made along those lines, rather than slavishly following the tariff for the nature of the act. Legal costs were paid, but only at a fixed amount of £2500 plus VAT.

It’s important to bear in mind that some abuse based schemes pay very little – for instance Islington’s Support Payment Scheme, which pays £10,000.

The Church of England’s Redress Project Board says that it has compared its framework against other similar schemes, and it states that it has “aimed to ensure that the levels of financial redress that could be offered are in line with or exceed those found in comparable schemes.”  

The Church says that the framework/Scheme would calculate individual financial awards across four stages:

• Stage One – an application will be assessed according to the type of abuse experienced – an award between £5,000 and £150,000
• Stage Two – any aggravating factors will be considered. This could result a further award up to twice the Stage One award.
• Stage Three – an application will be assessed regarding the impact the abuse has had on the applicant. This is an additional award between £10,000 and £250,000.
• Stage Four – in rare and exceptional circumstances where other significant factors were unable to be accounted for adequately in the first three stages of the calculation, a discretionary uplift of 20% will be applied to the sum reached after adding together Stages 1, 2 and 3.

By and large, this is the process that a civil court would follow in assessing an award for “pain, suffering and loss of amenity” with the exception of Stage Four. It looks as though Stage Three is intended for what a civil court would call “special damages”, which includes claims for loss of earnings, pension care and treatment.

In non-abuse-based cases, these awards for loss of earnings, etc can often dwarf the award for pain, suffering, and loss of amenity.

Courts can also award a general sum for loss of earnings capacity, where a precise calculation is impossible.

Consequently, at first sight, this looks to be a more generous Scheme than that of Lambeth and certainly that found in the Jesus Army.

However, claims for loss of earnings and care in abuse-based cases, are notoriously difficult to obtain. This is because the main damage is psychiatric in nature, and psychiatrists frequently disagree on the cause of a person’s inability to work particularly if the causes go back to childhood.

The key is evidence and on this point – it’s not clear what kind of evidence will be permitted and even more importantly how it will be paid for under the Church’s Scheme. Lambeth provided for a joint expert (normally a psychiatrist) to be instructed, who was paid for by Lambeth. Lambeth also provided for the applicant’s legal costs to be paid. Hourly rates were agreed between Lambeth and the applicants’ solicitors at the beginning of the Scheme. This meant in layman’s terms – that applicants knew where they were going and they got legal advice.  Medical and employment records could be put together, detailed statements and schedules of loss drafted and in some cases, a barrister could be instructed to provide advice.

If costs are not paid, then a solicitor either does the case pro bono or takes their costs from the client’s damages. My understanding is that in the Lambeth claims, nearly all of the applicants received their damages intact because their solicitors were prepared to accept the costs on offer. Certainly in the Jesus Army, my firm has managed to give all of our clients their damages intact although that is a very much simpler and less generous scheme.

In the Windrush Scheme, many applicants were left without any recourse to legal representation, although there was the assistance provided by voluntary organisations and some solicitors’ firms on a pro bono basis. Alternatively, these applicants paid their solicitors out of their compensation. In my view, the government’s assurances in relation to the Windrush Scheme about how it would not be necessary to instruct solicitors proved hollow and many survivors were left completely baffled by what proved to be a complex and difficult scheme to navigate.

I would also add that whilst there was some delay in the Lambeth Scheme, it does not compare with the delays we have seen and continue to see with the Windrush Scheme, where some applicants have actually died waiting for their compensation. We are now seeing similar problems with the government’s Post Office compensation scheme.

In my experience, the average time for a case to settle under the Lambeth Scheme was two years, whilst with the Jesus Army the time taken to receive an award can be as little as six months. The central government has proved itself singularly bad at administering compensation Schemes. I don’t think this will happen with the Church of England’s Redress Scheme, given the presence of experienced solicitors actually running the Scheme itself.

However, what is less clear is what provision will be made for the survivors’ legal costs.

The Redress Scheme is in draft at present. The General Synod of the Church is expected to consider the Scheme in July 2024 with the Final Drafting and Final Approval stages being taken as soon as practicable thereafter.

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