Home > Cases > R (Hussain & ors) v Secretary of State for the Health Department [2010] EWHC 3351 (Admin)

In early 2006, the claimants between them operated from two dental practices in Warwickshire. One was in Camphill and one was in Atherstone. As dentists providing National Health Care services, they all had protected rights under s 35 of the National Health Service Act 1977. At Camphill there were some nine dentists including the first and second claimants. At Atherstone there were some seven dentists including the first and third claimants. It was accepted that each were registered dentists.

In late 2005, the Dental Practice Board wrote to the claimants letters headed ‘For the purpose of moving to the planned new contracting arrangements in April 2006.’ In March 2006, the first claimant write to the Warwickshire Primary Care Trust (PCT) asking for partnership based contracts for Camphill and Atherstone. The PCT was not prepared to provide partnership contracts to the practices because it was not satisfied that they were bona fide as opposed to sham arrangements. However, it offered to provide individual contracts to dentists working at the practices.

The claimants signed their contracts ‘in dispute’. In March 2007, the claimants registered four disputes with the National Health Care Litigation Authority (the authority), all to the effect that the value of their individual contracts had been incorrectly calculated. The claim before the authority as adjudicator was whether the PCT had been entitled, in the determination of the contract values of the claimants’ General Dental Services (GDS) contracts, to omit the value of the activity carried out by the contractors’ employees or assistants during the base period. The adjudicator held that the PCT did not award the claimants GDS contracts, as individuals, under art 4 of the General Dental Services and Personal Dental Services Transitional Provisions Order, SI 2005/3435 (the Transitional Order), but rather awarded ‘discretionary’ contracts outside the scope of the Transitional Order. The claimants applied for judicial review.

The claimants contended that the adjudicator was wrong to rule that the PCT had not awarded them GDS contracts under art 4 of the Transitional Order. They further contended that in addition to receiving value for dental activity performed individually by them pursuant to their individual contracts, they also ought to receive value for work performed by their employees or assistants.

The application was part allowed.

The background of the Transitional Order was to confer on existing s 35 dentists protected rights. A PCT was obliged to enter into GDS contracts with such dentists. For some time, dentists in the United Kingdom had provided NHS dental services under s 35 of the National Health Service Act 1977. It was under a mandatory duty to enter with s 35 dentists either an individual contract under art 4 of the Transitional Order or a partnership contract under art 5. The rights of s 35 dentists were thus protected (see [55] of the judgment).

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 was that the PCT had entered into individual contracts with them. Those contracts could only have been entered into pursuant to art 4 of the Transitional Order. There was no legal basis in the Transitional Order for the PCT to enter into a ‘discretionary’ contract. However, the legislative regime did not empower the PCT to pay the claimants under their old contracts for dental services work being performed by other dentists pursuant to those dentists’ separate individual contracts with the PCT. Where work was undertaken in the baseline period by employee or assistant dentists who had not entered into separate individual contracts with the PCT, that could potentially be included within the contract value of the contracting dentist.

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