ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Cranston
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEVESON
LORD JUSTICE STANLEY BURNTON
| The Queen (on the application of (1) Dr Ikhlaq Hussain, (2) Dr Bindu Patel, (3) Dr Wernan Muller)
|- and -
|Secretary of State for the Health Department
(acting through the NHS Litigation Authority)
|- and -
|Warwickshire Primary Care Trust
||Interested Party/ Appellant
Philip Coppel QC and Saima Hanif (instructed by Bevan Brittan LLP) for
the Secretary of State
David Lock QC (instructed by Weightmans LLP) for Warwickshire PCT
Hearing date : 14 June 2011
Crown Copyright ©
Lord Justice Richards :
"28K General dental services contracts: introductory
(1) A Primary Care Trust or Local Health Board may enter into a contract under which primary dental services are provided in accordance with the following provisions of this Part.
(2) A contract under this section is called in this Act a 'general dental services contract'.
(3) Subject to any provision made by or under this Part, a general dental services contract may make such provision as may be agreed between the Primary Care Trust or Local Health Board and the contractor in relation to –
(a) the services to be provided under the contract (which may include services which are not primary dental services),
(b) remuneration, and
(c) any other matters."
Section 28M(1) provided that such a general dental services contract could be entered into with (a) a dental practitioner, (b) a dental corporation, or (c) two or more individuals practising in partnership where specified conditions were satisfied.
"Entitlement to a general dental services contract
3.(1) For the purposes of section 173(2) of the 2003 Act, the circumstances in which a Primary Care Trust must enter into a general dental services contract with a person who, on 31st March 2006, is providing services under section 35 of the 19787 Act are prescribed in articles 4 and 5.
(2) Nothing in this Order shall require a Primary Care Trust to enter into a general dental services contract with any person (whether as an individual or as a member of a partnership) on more than one occasion.
Individual dental practitioner
4.(1) Subject to paragraph (2) and (3), a Primary Care Trust must, if a person so wishes, enter into a general dental services contract with him as an individual dental practitioner if –
(a) on 31st March 2006 or, if earlier, on the date on which the contract is to be signed, he is included in the dental list of that Primary Care Trust;
(b) on the date on which the contract is to be signed, he is practising as an individual dental practitioner and –
(i) no other dental practitioner, or
(ii) no other person providing services under section 35 arrangements,
practises in partnership with him ….
5.(1) Subject to paragraph (2), a Primary Care Trust must, if a person so wishes, enter into a general dental services contract with him as one of two or more individuals practising in partnership if –
(a) on 31st March 2006 or, if earlier, on the date on which the contract is to be signed, he is included in the dental list of that Primary Care Trust and is practising;
(b) on 31st March 2006 or, if earlier, on the date on which the contract is to be signed, he is in partnership with one or more persons who are –
(i) included in the dental list of the Primary Care Trust, or
(ii) providing general dental services under section 35 arrangements (and are not dental practitioners); and
(c) he wishes to enter into a contract as an individual practising in partnership with the persons referred to in paragraph (b) … ."
"2.4 The Transitional Order gives legal rights to the dentists in para 2.1 [including dentists working under s.35 of the 1977 Act], but the legal rights, unless otherwise stated in the Order, are in force only at the point of transition. Therefore, in order to be protected by the conditions of the Order a dentist or PDS contractor providing services under the GDS or a PDS pilot scheme must sign a new contract no later than 31 March 2006.
2.5 After 31 March 2006, unless he/she is protected by special provisions, the dentist or contractor will lose all his/her transitional rights. Of course, the loss of that legal protection does not prevent the PCT and contractor agreeing a new contract but the obligation on the PCT to offer a contract has gone.
2.6 Unlike nGMS there is no default contract, so a dentist who does not sign a new contract does not move to a 'default' contract but loses the right to provide NHS dental services. For practical purposes a GDS contract or PDS agreement should be in place by at least the end of February 2006 to ensure the necessary payment information is in place so the NHS Business Services Authority (BSA) can make the first monthly payments in May 2006."
"However, the Appeal Unit also notes the provisions of Article 3(2) of the TPO which states 'Nothing in this Order shall require a PCT to enter into a GDS Contract with any person (whether as an individual or as a member of the partnership) on more than one occasion'. The Appeal Unit notes … that 'a large number of individual contracts are being signed'. No evidence has been put forward as to whether individual contracts in respect of these applicant dentists have been signed. If they have, then whether a contract is awarded to those individuals practising in partnership, is at the PCT's discretion."
The adjudicator's determinations
"The crux of the contractor's claim appears to be that the activity carried out by Dr C and Dr M during the baseline period should have been included in his individual contract values. I understand that the PCT has entered into individual contracts with Dr C and Dr M respectively for the activity that they undertook as employees of the contractor during the baseline period."
"The contractor was not entitled to a GDS contract by virtue of Article 4 of the Transitional Provisions Order. The PCT had discretion to enter in to the GDS contract with the contractor. The contract is therefore based on a Negotiated Annual Contract Value (NACV) as set out at paragraph 3 of the General Dental Services Statement of Financial Entitlements."
The judgment of Cranston J
"In my view the adjudicator was wrong in this part of his decisions. The background to the Transitional Order, as the Department of Health Factsheet 8 explains, was to confer on existing section 35 dentists protected rights. A PCT was obliged to enter into a GDS contract with such dentists. It was under a mandatory duty to enter with section 35 dentists either an individual contract under article 4 of the Order or a partnership contract under article 5. The rights of section 35 dentists were thus protected. The claimants asserted that they were in partnership. The PCT refused to accept that they were. Whether or not they were in partnership the crucial fact is that the PCT entered individual contracts with them. Those contracts could only have been entered pursuant to article 4. There is no legal basis in the Transitional Order for the PCT to enter a 'discretionary' contract in these circumstances."
"The adjudicator's award must be set aside for error of law. These claimants were entitled to, and were given, individual contracts under article 4 of the Transitional Order. However, the legislative regime does not empower the PCT to pay them under their contracts for dental services work being performed by other dentists pursuant to those dentists' separate individual contracts with the PCT. However, where work was undertaken in the baseline period by employee or assistant dentists who did not enter a separate individual contract with the PCT, that is potentially includable with the contract value of the contracting dentist …."
After receiving submissions, the judge decided to remit the matter to the NHSLA for reconsideration.
Whether the claimants had an entitlement to individual contracts under the TPO
The issues relating to costs
Lord Justice Leveson :
Lord Justice Stanley Burnton :