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HISTORICAL SHORTFALL SCHEME
POL / BEIS HSS OPERATIONS AGREEMENT
Purpose
1. The purpose of this documentis to establish a common understanding, between Post Office
Limited (POL) and the Department for Business, Energy & Industrial Strategy (BEIS), of
the operation of the Historical Shortfall Scheme (HSS, or the Scheme).
Roles of POL and BEIS
2. The creation of the HSS was agreed as part of the settlement of the Post Office Group
Litigation (referred to as the “GLO”) in December 2019. Accordingly, both POL and BEIS
and their respective agents will work to ensure that HSS is delivered successfully. In
addition to resolving the claims that have been submitted to HSS, successful delivery of
HSS will be an important milestone in resolving the issues raised by the Horizon IT system
and restoring POL’s reputation as a business of national importance.
3. Throughout the duration of the HSS:
e POL has responsibility for the design, implementation, administration, management
and oversight and reporting of the HSS;
« BEIS has responsibility for agreeing key decisions related to the Scheme, limited to
those that affect its cost, fairness for claimants, the Value for Money being achieved
and any major legal risk, as well as the funding; and
e POL and BEIS are both responsible for progressing claims through the HSS
expeditiously and avoiding undue delay.
4. Approval points and responsibilities have been set out in the flowchart in Annex A to reflect
how the above roles interact with the decisions to be made.
Key De n Points
5. POL and BEIS have agreed that BEIS has a number of approval rights in relation to the
operation of the HSS. These are:
5.1 Case Assessment Guidance
The Case Assessment Guidance is a detailed guidance document prepared by Herbert
Smith Freehills (HSF), solicitors instructed on behalf of POL, which sets out in detail the
key applicable legal principles outlined in the HSS Terms of Reference and Consequential
Loss Principles and Guidance. It will be used by HSS case assessors (Case Assessors)
in their assessment of applicants’ claims to the HSS and in the recommendations they put
forward for consideration by the HSS’s Independent Advisory Panel (the Panel).
BEIS will have the right to approve the Case Assessment Guidance prior to it being issued
to the Case Assessors and any substantive variations after any such approval has been
given.
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Department for
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After any such approval has been given, it is proposed that the Case Assessment Guidance
is provided to the Panel in advance of claims being put to the Panel for assessment and
recommendation and the Panel is given an opportunity to comment on the legal analysis in
the document. BEIS will have the right to provide input to POL’s response to the Panel's
comments.
5.2 Guidelines for determination of claims by the Panel
POL will instruct HSF to put cohorts of similar claims (i.e. grouped claims for the same
heads of loss) (the Cohort or Cohorts) to the Panel with the objective of developing
guidelines for the assessment of similar claims going forward (the Guidelines). The claims
constituting any single Cohort (anticipated to be in the order of 15 to 25) will enable the
Panel to develop Guidelines which can then be applied to as many similar claims within the
HSS (to those in the Cohort) as is possible.
POL will instruct HSF to work with the Panel to identify the issues for which the Panel
wishes to develop Guidelines. POL will list the issues raised by the Cohort which is
proposed to be put to the Panel. BEIS will have approval rights over the list of issues before
the Cohort is provided to the Panel. If the Panel requests further or alternative cases to be
included in the Cohort, these shall also be subject to approval rights for BEIS before they
are shared with the Panel.
Subject to the views of Panel, it is proposed that the Guidelines could cover issues such as
the Panel's fairness discretion and quantum ranges for differing types of claimed loss.
The purpose of the proposed Guidelines is to assist in ensuring a consistent approach is
taken from the outset for all like claims, to streamline the process of investigating claims
and to give POL and BEIS oversight on the approaches the Panel may take on these
matters, and their anticipated financial implications.
BEIS will not participate in Panel discussions to develop the Guidelines, though it will have
the right to review the issues to be considered and approve any subsequent Guidelines
derived by the Panel. Although it is recognised that the Guidelines are not inflexible and
all claims will need to be assessed on their own facts, POL retains final approval over all
offers made by POL to applicants, which right of approval extends to BEIS through this
Operations Agreement.
5.3 Determination of Precedent Setting Claims
Some applicants’ claims are likely to set a precedent for how similar applicants’ claims
should be treated by the Case Assessors and the Panel, and consequently will have
implications for the overall cost of the HSS. It is envisaged that all claims which are initially
put to the Panel for recommendation and assessment have the potential to set such
precedents.
POL will notify BEIS as soon as practicable of all claims within each new Cohort (including
by providing copies of the relevant application documents and case assessments) in
advance of their being put to Panel for assessment and recommendation until such time as
BEIS considers that a more targeted and streamlined approach is appropriate.
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Department for
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POL will provide updates to BEIS reporting on the recommendations made by the Panel
with respect to any precedent cases and the likely cost implications to the overall Scheme.
BEIS will have the right to approve any recommendation made by a Case Assessor to the
Panel that is considered to set a precedent, including in respect to each Head of Loss, part
quantified and unquantified claims. BEIS will retain the right to approve any offer made by
POL to an applicant following a recommendation by the Panel.
Since it is expected that a number of applicants’ claims may contribute to the setting of any
given precedent, BEIS’s approval rights will extend to all such applicants’ claims.
A precedent setting case is considered to be any claim where a recommendation made by
the Case Assessors or the Panel establishes a position regarding any given aspect of that
claim or a position regarding the size of any offer made to an applicant that could be
considered repercussive or determinative for one or some other applicants’ claims.
As all initial cases in each Cohort have the potential to be precedent-setting, POL will work
with BEIS to ensure that BEIS has visibility over all such cases and to provide BEIS with
sufficient information, including as to the cost implications to the overall scheme of the
precedent being set, with which to make an informed decision on the relevant cases or
principles.
Once a critical mass of claims has been determined, POL will work with BEIS to agree
which future claims should be treated as precedent setting (for example, a precedent
setting case may be one where the recommendation, by either the Case Assessor or the
Panel, is outside of a financial tolerance range to be agreed with BEIS). Subject to (1)
agreement between POL and BEIS about the financial tolerance range, and (2) HSF’s
agreement that it can reasonably identify offers which fall inside and outside of that range,
POL will procure HSF to identify any such case which falls outside of the financial tolerance
range to BEIS, and BEIS will have the right to approve any such precedent-setting offer
prior to it being made.
POL will work closely with BEIS during points 2.1 and 2.6 of the flow chart to consider and
review precedent setting cases, and this will include such meetings as are required.
5.4 Escalation and Mediation
Since applicants to the HSS are not compelled to accept offers made to them by POL, POL
has included a good faith meeting, an escalation meeting and a mediation stage into the
design of the Scheme which an applicant can elect to pursue. POL will not make any
increased offers to applicants at a good faith meeting, as the purpose of these meetings is
to allow POL to explain to applicants the basis on which an offer has been made to them.
BEIS does not have approval rights over these meetings. BEIS will however have the right
to approve the parameters determining POL’s negotiation position in relation to any
escalation meeting or mediation meeting.
Value for Money Analysis
6. POL will provide BEIS with a Value for Money (VfM) analysis, updated from time to time,
that demonstrates the merits of proceeding with the HSS instead of proceeding with any
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alternative options. Any anticipated increase in the expected overall cost of the HSS will
require HMG approval and an updated VfM analysis.
7. Itis understood that POL has provided BEIS with an initial estimate of! IRRELEVAN
settlement costs pursuant to the HSS. POL should provide BEIS as accurate a cost
estimate as possible, with updated information as the Scheme progresses, to enable
overall cost of the HSS to be monitored and assessed against that estimate regularly.
Updated cost estimates will provide a detailed analysis of movements in the cost estimate
to include changes in claim estimates, claims settlement experience, movements in claims
from unquantified or partially quantified to quantified etc.
Moi ing Arrangements
8. POL and BEIS have agreed to the following monitoring arrangements:
8.1 Monthly Monitoring Meeting
POL will meet with BEIS’s working level team monthly, or more frequently if required, to
discuss progress made during the operation of the HSS, including provision of updated
monitoring information to BEIS within an agreed reporting template. This will include but is
not limited to:
- Mlcovering all applications to the Scheme including a split by where they sit within the
various stages of the HSS;
- anup to date cashflow forecast;
- anup to date cost estimate for the HSS (including explanatory notes);
- any major changes to the risks / issues assessment reported at the quarterly Senior
Responsible Officer meeting; and
- Information to monitor POL and BEIS’s responsibilities under the Public Sector Equality
Duty (PSED).
POL and BEIS will agree an initial cost estimate and a template for monitoring movements
in the cost estimate prior to any settlement offers being made to claimants other than in
relation to de minimis claims. This will include target ranges for the number of applications
processed and together with the initial cost estimate will be used as a baseline for
monitoring going forward. This will be updated from time to time.
It is recognised that that monitoring information may change from time to time as the
Scheme develops and/or other priorities arise over the Scheme’s lifecycle.
8.2 Quarterly Senior Responsible Officer Meeting
POL will meet with BEIS’s senior HSS team on a quarterly basis, including the BEIS Senior
Responsible Officer, to provide an update on Scheme progress and outlook for expected
cashflows and costs. The information reported at this meeting will be the same as the
information provided at the most recent Monthly Monitoring Meeting but also include an
assessment of risks and issues affecting the Scheme. This meeting will be a stocktake for
BEIS and will provide the opportunity for BEIS to pause the HSS if VfM can no longer be
established or if there are serious operational issues with the HSS until such time that these
issues are resolved.
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Department for
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9. Should BEIS take the decision to pause the scheme as above, BEIS and POL will agree
an action plan to resolve the issues identified with the aim of restarting progress on the
scheme (or an alternative scheme to replace the Scheme to resolve legitimate claims
under the Scheme) as soon as BEIS and POL are confident that the issues have been
addressed. Issues should be escalated via the appropriate channels within BEIS and POL
when required
10. BEIS reserves the right to undertake an independent audit from time to time of settlement
offers made through the Scheme to ensure operating parameters are being adhered to.
Cost Sharing Arrangements
11. The cost sharing arrangements regarding the funding of the costs to deliver the HSS will
be set out in the relevant Funding Commitment Letter.
Review Points
12. The operation of the Key Decision Points and Monitoring Arrangements will be reviewed
before the end of March 2021, June 2021, September 2021 and December 2021 and
thereafter as required by POL or by BEIS.
13. Through these Review Points BEIS may request that the HSS be paused should material
risks / issues be identified and appropriate remedial action be taken in a similar manner
as noted in 8.2 and 9.
14. BEIS reserves the right, acting in good faith and with reasonable justification to withdraw
its support for the Scheme at any point. This includes, but is not limited to, if BEIS
considers the overall Scheme cost has or could unreasonably increase above the
estimated ranges (as updated from time to time), if VfM can no longer be established or if
there are serious operational issues with the HSS. Should this be the case, BEIS and POL
will work together in good faith and expeditiously to find alternative means to resolve
legitimate claims under the HSS. The right of BEIS to terminate the support for the Scheme
is without prejudice to the funding commitment of BEIS contained in the funding
commitment letter dated
Other
15. Itis recognised between BEIS and POL that the HSS Operations Agreement is considered
a ‘live’ document that will be updated from time to time as needed.
16. Any amendments must be approved by both POL and BEIS respectively.
Version 6.2 as at 25 February 2021
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Department for
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17. ANNEX A: Flowchart of HSS Process - Maintained in separate PDF — BEIS
Assessment v 1.0 19.02 (extracted below
BEIS Assessment VLO
19.02pdt
HSS - Pre Offer Preparation (UKGI/BHS)
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HSS - Pre Offer Preparation (UKGI/BHS)
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Department for
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2.1 Identify
Cohorts and List
of issues for Panel
Guidelines
2. Cohort Guidelines’
2.2 POLReviews
List of Issues for
Panel Guidelines
2.5 POL Approves:
Panel Guidelines
UKG/BEIS
2.3 UKG/BES
Reviews List of 2.6 UKGY/BEIS.
Issues for Panel ‘Approves Panel I op
Guidelines Guidelines
2.4Panel DevisesI_I
Panel Guidelines
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Department for
UK Government Business, Energy
Investments & Industrial Strategy
HSS - Pre Offer Preparation (UKGI/BEIS)
3. Finandal Impacts
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UKGI00049057
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aes dee
Department for
UK Government Business, Energy
Investments & Industrial Strategy
HSS - Pre Offer Preparation (UKGI/BEIS)
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