Hussain & Ors, R (on the application of) v Secretary of State for the Health Department

A statutory adjudication procedure imposed on a public body remains subject to judicial review for error of law, notwithstanding contractual terms making the adjudicator’s determination binding. Dentists entitled to transitional individual general dental services contracts are entitled to calculated, rather than negotiated, annual contract values. In calculating those values, activity performed during the baseline period by dentists with separate contracts is excluded. Activity performed by employee or assistant dentists who had no separate contract may potentially be included. The calculation must follow the statutory transitional scheme and the Statement of Financial Entitlements, rather than a general assessment of reasonableness.

The claimants operated dental practices and challenged four NHS Litigation Authority adjudications concerning the value and units of dental activity in their individual general dental services contracts. They argued that the value of work performed by dentists whom they employed or engaged during the baseline period should be included.

The adjudicator had concluded that the claimants were not entitled to contracts under article 4 of the General Dental Services and Personal Dental Services Transitional Provisions Order 2005, and that their contracts were discretionary, negotiated-value contracts. The central issues were whether that classification was lawful and how the contract values were to be calculated.

1. Judicial review. The claimants could challenge the adjudicator’s decisions for error of law. The adjudication procedure under regulation 8 of the National Health Service (General Dental Services Contracts) Regulations 2005 was a public law process. A public body could not use a compulsory contractual term to exclude otherwise available public law remedies (paras [47]-[51]).
2. Nature of the contracts. The claimants were section 35 dentists with protected transitional rights. Although they asserted that they were in partnership, the PCT entered individual contracts with them. Those contracts could only have been entered under article 4 of the General Dental Services and Personal Dental Services Transitional Provisions Order 2005. The Transitional Order provided no legal basis for treating them as discretionary contracts (paras [52]-[56]).
3. Contract value. Because the contracts were entered under Part 2 of the Transitional Order, the claimants were entitled to calculated annual contract values under paragraphs 2.2 and 2.5 to 2.13 of the General Dental Services Statement of Financial Entitlements, not negotiated annual contract values. The adjudicator therefore erred by testing the PCT’s figures for reasonableness under a negotiated-value approach and failed to determine the claim under paragraph 2.5 (paras [56]-[60]).
4. Baseline activity. Article 10 required the PCT to analyse the baseline data and calculate the activity equivalent to the care and treatment provided by the person or persons with whom the contract was to be entered. Under the SFE, the value had to bear a direct relationship to the activity commissioned under the contractor’s contract. Work performed by a dentist with a separate PCT contract was not properly attributable to the contracting dentist’s value. Work performed by an employee or assistant without a separate PCT contract could potentially be included (paras [62]-[65]).
5. The four adjudicator’s awards were set aside for error of law. The court invited submissions on the appropriate final resolution in light of its conclusions (paras [66]-[69]).

First-instance judicial review. No prior appellate decision is stated in the judgment.