No breach notices for underperformance this year
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- Published: Wednesday, 31 July 2013 09:54
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| Solicitor Alex Hall has informed clients that NHS England has announced that ‘no breach notices will be issued for under-delivery’ in 2013/14 only. Although the new policy states that they will ‘financially recover all monies to 100% where a contractor has delivered less than 96% of the contractual UDAs’. The policy can be found at: http://www.england.nhs.uk/dental/ |
The text of Alex Hall’s email is reproduced here with permission:
NHS England has published its new “Mid-year and year-end reconciliation and financial recovery policy”. At paragraph 28 under the sub-heading “Transitional arrangements 2013/14 only” it has confirmed:
“As this is the first year of the policy it has been agreed that there will be transitional arrangements in place for 2013/14 only. This will allow contractors to become familiar with the new arrangements and ensure that no one is disadvantaged or businesses destabilised.”
The policy goes on to confirm at paragraph 29 that in 2013/14 “No breach notices will be issued for under-delivery”, though it does confirm that despite that, it will “financially recover all monies to 100% where a contractor has delivered less than 96% of the contractual UDAs”. This is an enlightened approach and a national published formal stance that should be kept in mind.
It is clear already that not all Area Teams are enforcing the new policies consistently or at all in some cases, so it would not be unexpected for some to receive a breach notice in breach of the policy. For those who do, there is a good argument that the notice should be withdrawn.
Paragraph 30 onwards discusses the policy from 2014/15 and speaks of “re-basing” or contract reduction. The fact that it is not mentioned in the transitional year paragraph suggests implicitly that re-basing will not be considered this year either (or it could certainly be argued that way).
It is also of note that NHS England seems to recognise that the service of breach notices can disadvantage or destabilise businesses. Certainly it can introduce uncertainty and cause certain specific problems for those who are trying to sell their practices. If destabilisation is a risk, perhaps this may be used in the future to convince NHS England not to serve a notice (carefully avoiding the suggestion that the practice may fall into financial danger entitling NHS England to consider termination so as to protect its financial interests).
Alexander J Hall is a partner in Meade King
As mentioned in the relevant forum thread, it seems that Area Teams have issued and are issuing breach notices contrary to the national policy for this year.
In one case, an Area Team has claimed that the policy relates to 2013/14 onwards and as the underperformanc e was in the contract year 2012/13 the previous PCT policy applies. The PCT policy was to issue breach notices where less than 96% was achieved.
This cannot be correct. Why not? A few initial thoughts:
The policy does not say that, and indeed the spirit of the policy (i.e. to ensure people get used to the new system of notices going forward next year) suggests otherwise too.
The policy says:
"The Process for 2013/14 will be:
• No breach notices will be issued for under delivery"
It does NOT say 'No breach notices will be issued next year for under delivery in the 2013/14 year'.
It really does not matter when any under delivery took place, whether last year or in any previous years. In relation to any under delivery, the policy states that in 2013/14 no breach notices will be issued for under delivery.
That is preceded by paragraph 28 which sets out that these are “Transitio nal arrangements”.
The transition is now, not next year.
Furthermore, not all PCTs had a uniform policy on this, and so it is ludicrous for the Area Team to suggest that NHS England is enforcing lots of different and contradictory former PCT policies this year just because they happened to be the former policies.
Also, in relation to paragraph 28 and that the “transitio nal arrangements in place for 2013/14 only” “will allow contractors to become familiar with the new arrangements”, how will they if the new arrangements are not to be enforced until this time next year?
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