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NHS rent dispute procedure tainted by appearance of bias

DATE: 26 Mar 2009

 

Primary Health Properties plc & others v (1) The Secretary of State for Health & others; and (2) The National Health Service Litigation Authority Family Health Services Appeal Unit & Lincolnshire South West Trust NHS Teaching Primary Care Trust [2009] EWHC 519 (Admin)

 

McCombe J. held that the dispute resolution procedure adopted under the NHS (Personal Medical Services Agreements) Regulations 2004 for determining "current market rent" (under the National Health Services (General Medical Services - Premises Costs)(England) Directions 2004) as applied in respect of a Medical Centre in Hereward, Lincolnshire was tainted by the appearance of bias.

The claimants contended that the dispute resolution procedure failed to comply with Article 6 of the European Convention on Human Rights, because the determination of the rent was to be carried out by the National Health Service Litigation Authority Famly Health Services Appeal Unit ("the Appeal Unit") as the delegate of the Secretary of State for Health. The learned Judge rejected this aspect of the claim holding that Article 6 was not engaged.

The Claimants though successfully argued that the decision of the Appeal Unit to appoint the Chief Executive Office of the Valuation Office Agency ("CEO VOA") to advise it on the dispute was "tainted" with apparent bias, on domestic principles of English law, because of the prior involvement of the District Valuer in acting on behalf of the Primary Care Trust in the initial negotiations.

James Maurici appeared as junior counsel for the Claimants.