Dr NATHAN SANDLES v NATIONAL HEALTH SERVICES LITIGATION AUTHORITY (PRIMARY CARE APPEALS)

The conditions for suspension payments must be read according to their ordinary meaning. The provision identifying the practitioner’s status and the provision specifying the earnings shortfall are cumulative conditions for entitlement in the relevant month. A practitioner who ceases to be a partnership partner during suspension therefore cannot claim partnership suspension payments for later months. Differences between partners, employees and locums are not inherently unfair where their ability to continue earning differs. Policy may assist statutory construction where wording is ambiguous, but cannot override clear language. The court may correct a misconstruction in the reasoning of the decision-maker where that error does not affect the legally correct outcome.

The claimant, a general practitioner, was suspended from practice and from the medical performers’ list following an interim order. He subsequently ceased to be a partner in the partnership. NHS England refused suspension payments for the period after his retirement, and NHS Resolution dismissed his appeal.

By judicial review, the claimant challenged the construction of paragraph 4(1)(b) of the Payments to Medical Practitioners Suspended from the Medical Performers List 2015. The central issues were whether that provision imposed a condition of monthly entitlement, whether its interaction with paragraphs 3 and 5 produced an absurd or unfair result, whether it conflicted with policy, and what was meant by the word “entitled”.

1. The claim failed. The decision that the claimant was not entitled to suspension payments after ceasing to be a partner was legally correct.
2. Paragraph 3 of the Payments to Medical Practitioners Suspended from the Medical Performers List 2015 identifies a class of practitioners who may be entitled to payments. Paragraph 4 then specifies the further conditions for entitlement in respect of a particular month or part-month. Paragraph 4(1)(b) therefore requires the practitioner both to be one of two or more individuals practising in a partnership and not to be entitled to at least 90% of normal drawings.
3. There was no inconsistency between paragraphs 3, 4 and 5. A practitioner may remain within the wider class in paragraph 3 after retirement, and paragraph 5 may determine the amount payable for an earlier month when the practitioner was a partner. That does not create entitlement for a later month in which the practitioner no longer satisfies paragraph 4(1)(b).
4. The different treatment of partners, employees and locums was neither absurd nor unfair. Employees and locums may be unable to work because of suspension, whereas a partner’s retirement involves an element of choice and control. The scheme is directed to compensating practitioners unable to earn because of suspension, rather than for an independent reason.
5. The policy background could not alter the result. Policy may assist construction where wording is ambiguous, as illustrated by AA (Nigeria v SSHD [2010] EWCA 773, but the relevant wording was clear. The decision-maker’s suggestion that “not entitled” meant not entitled as a result of suspension was a misconstruction, because those words required no addition. That error did not affect the outcome, which rested on the claimant no longer being a partner.