Personal Independence Payment: agency agreement

8. Litigation

8.1 The Scottish Ministers will notify DWP and Office of the Advocate General (OAG), by email, within three (3) working days of the receipt of any pre-action correspondence, initial writ, petition or claim in the Sheriff Court or any petition for judicial review in the Court of Session in relation to Personal Independence Payment or any other devolved benefit which is being administered by DWP, or any legal challenge in relation to data protection, which is raised by a person resident in Scotland and/or relates to a decision or action of DWP made before the Commencement Date or made during the Term of this Agreement. DWP will conduct any such litigation on the basis of business as usual arrangements.

8.2 DWP agree to inform the Scottish Ministers, as soon as practically possible, on the progress of any judicial review or challenge in relation to data protection, or any decision in such litigation proceedings, which has an impact on the delivery of Personal Independence Payment or any other devolved benefit to people resident in Scotland which is being administered by DWP. DWP will conduct any such litigation on the basis of business as usual arrangements.

8.3 DWP and the Scottish Ministers agree in relation to any challenges brought in tribunal by a claimant resident in Scotland, or where the claim relates to decisions or actions of DWP in relation to Personal Independence Payment that:

• DWP will conduct any such litigation at the First tier and Upper Tribunal in accordance with their business as usual arrangements,
• DWP will liaise, where necessary, with OAG to conduct any litigation conducted in the Upper Tribunal, and
• where appropriate OAG will instruct Standing Junior Counsel from the Advocate General’s panel or Senior Counsel authorised by the Advocate General to appear on behalf of DWP and conduct litigation in accordance with DWP policy.

8.4 The decisions or actions of DWP mentioned at paragraph 8.3 are ones which are made by DWP before the Commencement Date or during the Term of this Agreement.

8.5 Where a judicial review claim or a challenge brought in the Upper Tribunal relating to a matter covered by paragraphs 8.1, 8.2 or 8.3 above raises a devolution issue as defined in Schedule 6 of the Scotland Act 1998, DWP will, as soon as practically possible, notify the Scottish Ministers and OAG of the devolution issue. DWP and/or OAG will normally retain conduct of the litigation in accordance with the arrangements under paragraphs 8.1, 8.2 and 8.3 above. The Advocate General has a statutory role in relation to devolution issues as does the Lord Advocate. Accordingly, OAG will discuss litigation strategy in such cases with DWP and the Scottish Government Legal Directorate on a case by case basis. OAG and DWP may agree that the Scottish Government Legal Directorate leads on the conduct of the litigation in cases where a Scottish court or tribunal has directed that they should do so, or where the Advocate General (in consultation with DWP) and the Scottish Ministers, consider that is appropriate. Nothing in this agreement affects either the Advocate General’s or the Lord Advocate’s statutory role in relation to devolution issues.

8.6 The Scottish Ministers agree to notify DWP, by email, within three (3) working days of any challenge which is brought in a tribunal by a claimant resident in Scotland which relates to decisions or actions of DWP in relation to Personal Independence Payment which were made before the Commencement Date or during the Term of this Agreement.

8.7 The Scottish Ministers agree that, within three (3) working days of initial receipt of any correspondence, initial writ, petition, or claim referred to in paragraph 8.1 above, they will issue an acknowledgement to the pursuer or claimant noting that their correspondence, initial writ, petition or claim has been forwarded to DWP and OAG. DWP will respond to any such pre-action correspondence, initial writ, petition or claim in accordance with business as usual arrangements.

8.8 Where, as a result of a decision of a Tribunal or higher courts, or because DWP itself becomes aware of an administrative error which occurred prior to the Commencement Date or occurs during the Term of this Agreement, a Legal Entitlement and Administrative Practices (LEAP) exercise is necessary, or DWP suspects a LEAP exercise may be necessary then, where the LEAP exercise relates to Personal Independence Payment and impacts claimants resident in Scotland, DWP agrees to inform the Scottish Ministers as soon as is reasonably practicable of the need, or potential need, to conduct a LEAP exercise, the reason the exercise is required, or potentially required, the scale and scope of the exercise (if known), and how it will conduct any such LEAP exercise (if known). DWP will plan, organise and administer any such LEAP exercise in accordance with business as usual arrangements.

8.9 DWP and the Scottish Ministers agree that should there be any ongoing litigation or LEAP exercise conducted in accordance with the paragraphs above at the time the case was due to transfer, during the Term of this Agreement, that case will transfer from DWP to Social Security Scotland in accordance with the agreed case transfer process. In exceptional circumstances, if the nature of the litigation means that it is necessary or appropriate not to transfer a case at the time the case was due to transfer then such case transfer may be delayed by agreement between DWP and Scottish Ministers.

8.10 When a case is transferred in circumstances described in paragraph 8.9, DWP and Scottish Ministers will co-operate until the conclusion of that litigation or LEAP exercise and Scottish Ministers will provide any documents or information as DWP may reasonably request to assist with the litigation or LEAP exercise. DWP will inform Scottish Ministers as soon as reasonably practicable of the outcome of the litigation or LEAP exercise and provide any documents or information used to support that outcome that may reasonably be required by Scottish Ministers to make any required consequential changes to a claimant’s entitlement (subject to any applicable Scottish regulations governing such benefit) and Scottish Ministers and DWP will cooperate as necessary to implement any such changes.

8.11 DWP and the Scottish Ministers agree that any litigation which has not concluded at the end of the Term of this Agreement will continue to be administered by DWP, conducted in accordance with the above paragraphs, beyond the end of the Term until the conclusion of that litigation.