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

Entitlement to an individual general dental services contract under the General Dental Services and Personal Dental Services Transitional Provisions Order 2005 depends on objectively established compliance with the statutory conditions when the contract is signed. A dentist practising in partnership cannot satisfy the condition requiring practice as an individual, even if the parties misunderstood the facts at the time. The Order governs the circumstances in which a Primary Care Trust is under a duty to contract. It does not remove the separate discretionary power under section 28K of the National Health Service Act 1977. Entering an individual contract may also engage the rule preventing a person from obtaining more than one transitional contract. An agreement made while disputing entitlement remains legally effective according to its proper statutory basis.

The claimants, dentists providing NHS services, challenged NHS Litigation Authority determinations concerning the valuation of their general dental services contracts. The adjudicator had concluded that the claimants were not entitled to individual contracts under article 4 of the General Dental Services and Personal Dental Services Transitional Provisions Order 2005, and that their payments were therefore subject to negotiated rather than calculated contract values.

Cranston J allowed the judicial review, held that the individual contracts had been entered under article 4, and remitted the matters for reconsideration: [2010] EWHC 3351 (Admin). The PCT appealed. The central issue was whether the claimants’ entitlement had to be determined by the objectively established facts, rather than by the parties’ perceptions when the contracts were signed.

Disposition. Lord Justice Richards allowed the PCT’s appeal. Lord Justice Leveson and Lord Justice Stanley Burnton agreed. The High Court’s order was set aside and the adjudicator’s determinations were reinstated.

1. Article 4 required compliance with its statutory conditions, including that the dentist was practising as an individual and that no other relevant practitioner practised in partnership with him. Those conditions had to be assessed by reference to the facts objectively established. The claimants were practising in partnership and therefore were not entitled to individual contracts under article 4.
2. The same facts meant that the claimants satisfied the conditions for partnership contracts under article 5. They could have declined the individual contracts and pursued their entitlement to partnership contracts through the available appeal mechanism. By entering the individual contracts, even while disputing the position, they triggered article 3(2), which removed any later duty on the PCT to enter partnership contracts with them.
3. The Transitional Provisions Order dealt exhaustively with the circumstances in which the PCT was under a mandatory duty to contract. It did not exhaust the PCT’s contractual powers. Section 28K of the National Health Service Act 1977 supplied a separate discretionary power to enter into individual contracts without a transitional duty. The contracts could therefore be treated as having been entered under that power, although the PCT had initially believed that it was acting under article 4.
4. There was no basis for applying estoppel to confer a statutory entitlement which the Order did not provide. The adjudicator was correct to reject article 4 entitlement, and his subsequent analysis on the negotiated annual contract value proceeded on the correct legal basis.

The NHSLA’s separate permission application concerning costs fell away. The court expressed provisional views that the claimants should pay 75 per cent of the PCT’s costs and 50 per cent of the NHSLA’s costs below, the PCT’s costs of the appeal, and no costs to the NHSLA for the appeal or its permission application, subject to further written submissions before a final costs order.

1. Court of Appeal (Civil Division) allowed the PCT’s appeal, set aside the High Court order and reinstated the adjudicator’s determinations.
2. High Court of Justice, Administrative Court, per Cranston J, allowed the judicial review, held that the claimants had been entitled to individual contracts under article 4, and remitted the determinations for reconsideration: [2010] EWHC 3351 (Admin).