Dr Manori Balachandra v NHS Commissioning Board

Payment under a dental services contract is ordinarily for dental treatment actually provided, rather than for compliance with record-keeping or notification requirements. A contractual deadline for submitting treatment forms does not become a precondition to payment without clear language producing that result. Where a public body exercises contractual discretion, it must consider relevant matters and avoid conclusions that no reasonable authority could reach. The intensity of review depends on the consequences of the decision. In assessing eligibility for Covid-19 contractual arrangements, the decision-maker had to consider the actual clinical activity claimed, the low threshold, the financial consequences, and the evidence supplied, rather than treating defective records as proof that the work was not done.

The claimant, a dental practitioner operating under a General Dental Services Contract, sought declarations concerning payment and clawback for the financial years 2019–2020 and 2020–2021. For 2019–2020, the defendant treated UDAs supported by FP17 forms submitted outside the contractual two-month period as not performed. For 2020–2021, it refused to apply Covid-19 modified arrangements because it considered that the practice had not demonstrated the required 20% level of patient care activity.

The central questions were whether late submission prevented treatment from counting towards contractual performance and whether the defendant acted reasonably in refusing to apply the temporary Covid-19 scheme.

1. 2019–2020. The defendant was not entitled to treat UDAs as unperformed merely because the related FP17 forms were submitted outside the two-month period in clause 221. Clause 77 concerned the actual provision of dental treatment. Clause 239 concerned payment and did not determine whether UDAs had been performed.
2. The Powys Teaching Local Health Board v Dusza decision, [2015] EWCA Civ 15, supported the conclusion that records and notifications are evidence of work done, not necessarily conditions of payment. The relevant provisions of the General Dental Services Statement of Financial Entitlements 2013 did not clearly impose such a precondition. The defendant had also relied on the wrong contractual basis and had not alleged a breach of clause 221.
3. The alternative issue concerning the reasonableness of refusing to exercise a discretion to count late forms did not arise. The court nevertheless observed that the claimant had not established that the December 2019 technical problems explained all the late submissions.
4. 2020–2021. The defendant’s decision to apply the ordinary contractual arrangements rather than the Covid-19 scheme was reviewable under the two-limb Wednesbury test, as explained in Braganza v BP Shipping Ltd and Rahman and Partners (a firm) v North Central London Integrated Care Board. The defendant had to take account of the severe financial consequences, the low 20% threshold, the practice’s size, the Covid-19 disruption, and the claimant’s evidence of patient contacts. On the material then available, the decision would have failed the first limb of the test.
5. However, the defendant was entitled to investigate whether the claimed patient contacts had actually occurred. The court declined to determine that factual issue before reviewing material produced under a specific disclosure order. Orders concerning 2020–2021 were therefore deferred pending that investigation. The claimant received a declaration for 2019–2020 that the defendant could not withhold, set off or recover money for UDAs actually performed.

First-instance decision. The judgment does not state any prior appellate decision.