Adekola v NHS England

When a primary care trust is dissolved and its performers lists are reorganised, the transition scheme must be construed to avoid a gap in lawful allocation. A practitioner on an old list is automatically included in the corresponding list of the relevant new trust. Transfer does not depend on notice, an invitation to choose a trust, an application, or a physical entry on the new list where the scheme identifies the trust by area. The practitioner is treated as included by operation of law. An inadequately reasoned tribunal decision may contain an error of law, but that error is immaterial where the tribunal reached the legally correct conclusion and the outcome is unaffected.

Dr Adekola had been included on the performers list of Cherwell Vale Primary Care Trust. On 1 October 2006, that trust was dissolved and its area divided between successor trusts under the Primary Care Trusts (Establishment and Dissolution) (England) Order 2006. Brackley fell within Northamptonshire.

After her removal from the Northamptonshire list, the First-tier Tribunal made a national disqualification order in 2012. On review in 2014 under the National Health Service (Performers Lists) Regulations 2004, it confirmed the order. The Upper Tribunal upheld that decision but held that the First-tier Tribunal’s reasoning on the transfer issue was inadequate, while treating the error as immaterial. The appeal concerned whether that error was material and whether Northamptonshire had jurisdiction.

1. Appeal dismissed. Lord Justice Longmore gave the judgment, and Sir Rupert Jackson agreed. The appeal concerned whether the 2014 First-tier Tribunal had erred in law as to the appellant’s inclusion on Northamptonshire’s performers list and, if so, whether the error was material.
2. The Primary Care Trusts (Establishment and Dissolution) (England) Order 2006 required a purposive construction that avoided any gap between performers lists when old trusts were dissolved. Article 8 automatically included a practitioner whose name was on an old list in the corresponding list of the relevant new trust. Transfer did not depend on prior notification, an invitation to choose a trust, or an application. The allocation machinery allowed practitioners to seek a different allocation where appropriate.
3. Article 2(2), read with Schedule 3, supplied the geographical allocation where no different arrangement applied. Cherwell Vale was divided between Oxfordshire and Northamptonshire, and Brackley was allocated to Northamptonshire. The appellant was therefore treated as included on the Northamptonshire list by operation of law. It was immaterial whether the physical list recorded her name. Otherwise practitioners could fall into a legal hiatus and practise unlawfully. Regulation 22 of the National Health Service (Performers Lists) Regulations 2004 reinforced that construction by prohibiting primary care services unless the practitioner’s name was included on a performers list.
4. The First-tier Tribunal’s reliance on Dr Hopton’s letter was inadequately reasoned and, to that extent, involved an error of law. The error was immaterial because the tribunal’s conclusion that the appellant was legally to be treated as included on Northamptonshire’s list was correct. It was unnecessary to consider the Upper Tribunal’s alternative reasons for treating any error as immaterial. The appeal was dismissed.

• Court of Appeal (Civil Division): The appeal was dismissed. The court held that the appellant was treated by operation of law as included on Northamptonshire’s performers list.
• Upper Tribunal: The 2014 First-tier Tribunal’s review decision was upheld. The Upper Tribunal found inadequate reasoning on the transfer issue but held that any error was immaterial.
• First-tier Tribunal: A national disqualification order was made in 2012 and confirmed on review in 2014 under the National Health Service (Performers Lists) Regulations 2004.