Dr Manori Balachandra v NHS Commissioning Board

The claimant and the defendant seek a number of declarations. They arise out of a dispute about payment under a General Dental Services Contract (‘the GDS Contract’) between them.

The dispute concerns the financial years 2019-2020 and 2020-2021. The essence of the dispute is whether the claimant is entitled to be paid for dental services which she can establish her practice performed, in circumstances where she failed to comply with various formal requirements for notifying the defendant that the practice had done so.

The details of the dispute in each financial year are different. In 2019-2020, the GDS Contract operated in the usual way by requiring the claimant to perform a specified number of Units of Dental Activity (UDAs). In 2020-2021 the defendant offered modified performance requirements to dentists due to the Covid-19 pandemic.

The parties are not in full agreement as to which dental services were actually provided by the practice but I am only asked to resolve a part of that factual dispute.

The claimant is a registered dental practitioner. She runs the Manor Dental Surgery in Fareham in Hampshire. At the material times she employed a number of dental practitioners as well as performing dental services herself. At these times she saw both NHS and private patients. The claimant was removed from the ‘national performers list’ on 6^th June 2024. She therefore no longer performs NHS dental services. The claimant continues to see private patients.

The defendant is the commissioning body for primary dental services for NHS patients. It is an executive non-department public body of the Department of Health and Social Care. It is the statutory successor to Hampshire Primary Care Trust, with whom the claimant entered into the GDS Contract. The management of the defendant’s contracts is carried out by the NHS Business Services Authority (‘the BSA’). The BSA was responsible for both receiving the formal notifications from the claimant that she had carried out the relevant dental services and for payment under the GDS Contract. The BSA, however, does not have sight of all the specific contractual obligations under individual GDS Contracts. Performance of the contractual obligations is a matter for the defendant.

The issues are as follows:

Framework for 2019-2020

The claimant entered into the GDS Contract in February 2007. By clause 77 of the contract as modified in 2009, she is required to provide 20,937 UDAs in each financial year.

The UDA system works by dividing the range of dental treatments into three bands. It then attributes a fixed number of UDAs to the treatments in each band. Band 1 treatments are attributed 1 UDA; Band 2 is divided into sub-bands with treatments attributed between 3 and 7 UDAs; and Band 3 treatments are attributed 12 UDAs. There is a residual band for urgent treatments which are attributed 1.2 UDAs.

The amount paid to a practice for each UDA is determined each year by the Doctors and Dentists Review Board. In the financial year 2019-2020 the value of each UDA was £ 25.35, making the claimant’s contract value in that year £ 530,777.26. In the financial year 2020-2021 the value of each UDA was £ 26.61, making the contract value in that year £ 557,212.62.

A dentist that has a GDS Contract is referred to as a ‘provider’. If that dentist employs other dental practitioners, those practitioners are called ‘performers’.

The provider is paid one twelfth of their contract value each month, subject to a number of deductions, such as for pension contributions for performers. One such deduction is for patient charges. That is to say payments that certain patients are required to make directly to their dentist towards their NHS treatment. The BSA provides each provider with a monthly payment schedule.

Providers are required to submit an FP17 form to the BSA for each treatment. This is done using the BSA’s “Contract Management, Payments and Superannuation” (‘Compass’) system. All providers, performers and commissioning teams have access to Compass. The software used by dentists to submit forms is the Dental Practice Management System (‘DPMS’). In the claimant’s case this software is provided by Software of Excellence (‘SOE’). This interacts with the Compass system. FP17 forms may be submitted in bundles called ‘files’. The claimant’s evidence was that her team submits bundles at various times throughout the month and that a bundle may contain up to 1,000 forms.

Each FP17 form is required to contain certain information. This includes patient details, date of treatment, type of treatment and whether the patient is exempt from charges. The system then calculates the number of UDAs performed. If an FP17 form contains errors, the Compass system will reject it. It will transmit an error message through Compass. The BSA issues guidance to help dentists understand error messages and how to correct them.

I will deal with the 2 month requirement for submission of FP17 forms under the heading ‘contract’ below. At this stage I merely record that Mr Lee, who gave evidence for the BSA, said that if an FP17 is late it is still processed by the BSA. He gave two reasons for that: the need to record treatments that patients receive; and the need to make appropriate deductions to payments to providers, to take account of patient charges they have received. Mr Lee’s written evidence was, however, that UDAs from late forms will not be included in the total of UDAs for that or any year.

After the end of each financial year there is a reconciliation. If the provider has exceeded its required UDAs they will be entitled to additional payment. If the practice has not completed its required number of UDAs, there are procedures for recouping the resulting over-payment. If the practice has carried out between 96 and 100 % of their UDAs in a year, the contract provides that the uncompleted UDAs can be carried forward to the next financial year (see clauses 100.2 and 83 and 84).

The reconciliation is carried out by the BSA each July and it produces an annual reconciliation report, which is issued to the provider. This includes information about the UDAs performed and any claw-back of payment that is required. Mr Lee’s evidence was that the 2 month rule is set by the defendant and the Department of Health. He said that the process for the year-end reconciliation was as directed by the defendant (again, see under the heading ‘contract’ below).

In fact for the year 2019-2020 the normal position was that the year end reconciliation was calculated from March 2019 -February 2020 so that practices were not disadvantaged by the slump in activity in March 2020, due to Covid-19. There was some flexibility applied to these arrangements.

Framework for 2020-2021

Dental practices were closed for most face to face contact between 25^th March 2020 and 8^th June 2020 due to the Covid-19 pandemic. Some practices remained closed for a few more weeks, but all NHS dentists were required to re-open by 20^th July 2020.

The requirements on dentists as regards types and volumes of work in the financial year 2020-2021 were set out in a series of ‘preparedness letters’ issued by the Chief and deputy Chief Dental Officer throughout the year (although a sizable proportion of the information on these letters was concerned with other Covid-19 related matters). The first of these was issued on 6^th March 2020.

On 20^th March 2020, the Chief Dental Officer (‘CDO’) asked dental practices to do a number of things. These included “radically reduce the number of routine check-ups” and “agree local arrangements to consolidate, where necessary, the provision of any essential, routine NHS work that cannot be delayed and urgent dental problems”.

On 25^th March 2020, the defendant emailed its dentists attaching the third preparedness letter of the same date. The email said that (with a narrow exception) practices did not have to notify the defendant of force majeure events occurring in March 2020. It said that it hoped the methodology in the preparedness letter would be a fair process so that issues arising from Covid-19 would not impact on the year-end position. It asked that questions not be emailed at that time.

The letter required that all routine, non-urgent dental care be stopped and that all practices establish (either alone or in collaboration) a remote urgent care service, providing telephone triage for their patients with urgent needs (whenever possible treating with advice, analgesia and antimicrobial treatment). It said that there would be a local urgent dental care system for patients who could not be managed by these means.

As regards the contract position, the letter said:

“Cashflow

We will continue to make monthly payments in 2020-21 to all practices that are equal to 1/12th of their current annual contract value.

Contract value and reconciliation

We will progress our work with the BDA to finalise an approach to contract value and reconciliation in 2020-21 that takes account of the following principles:

• Contract delivery and year end payment for the period of the COVID-19 response should be assumed to have been maintained at a level that allows continued employment of staff (despite reduced actual activity);

• In return for this certainty, this will be conditional upon practices being required to offer all available staff capacity to other areas as outlined in section C, “Workforce” below;

• A requirement on practices to ensure that all staff including associates, non clinical and others continue to be paid at previous levels;

• An agreed and fair reduction for any variable costs associated with service delivery (e.g. in recognition of reduced consumable costs) will be applied to all contract values;

• These arrangements will operate over a fixed number of months with an agreed end date; and Practices benefiting from continued NHS funding will not be eligible to seek any wider government assistance to small businesses which could be duplicative. (this was clarified in the fourth letter as applying only to the NHS portion of an NHS/private practice)”

In the event the abatement which was applied to practices that did not provide urgent face to face care to take account of reduced costs, was 16.75 % from 1^st April 2020 to 7^th June 2020. This was to be applied through the reconciliation process at the financial year end.

The fourth preparedness letter was dated 15^th April 2020. It dealt with recording of the two types of treatments envisaged by the temporary arrangements. That part of the letter read:

“…telephone triage – there is no regulatory framework to claim for activity or apply patient charges for a patient contact/triage via telephone; providers undertaking telephone triage are advised to keep a manual record of patients triaged by telephone, with the view that this data collection will help support and inform development of contract management arrangements for 2020/21

• urgent treatments provided within UDC systems should adhere to the current regulatory framework for FP17 submission and applying patient charges.”

On 28^th May 2020 the CDO and the Director of Primary Care and System Transformation wrote a letter to all dental practices and regional dental commissioning leads. It was headed “Resumption of dental services in England”. It requested that all dental practices commence opening from Monday 8 June 2020 for all face to face care, where practices assess that they have the necessary infection prevention and control (IPC) and PPE requirements in place. It said that the progression to resumption of full dental care would be risk-managed by individual practices. As regards the contractual arrangements, it said:

“Initially we will maintain the current temporary contract arrangements to make monthly payments in 2020-21 to all practices that are equal to 1/12th of their current annual contract value, subject to abatement for lower costs. We continue to work with the BDA on the mechanisms for the full 2020-21 contract year with the intention of reintroducing a link to delivery of activity and outcomes.”

The fifth preparedness letter was dated 13^th July 2020. It envisaged that while practices would open for face to face treatment, remote triage would remain in place as a first stage of all dental care. It acknowledged that even at this stage, practices would not be able to complete their contractual UDAs. It said that the CDO was working with the British Dental Association (‘BDA’) and profession to establish appropriate interim mechanisms. It then set out arrangements which would apply in advance of this agreement. There were a number of aspects to these arrangements. The parts that are directly relevant to this case were as follows:

“• From 8 June we have moved to a 0% abatement for all contracts.

• …

• For non UDC practices this is conditional on specific assurance that individual practices are open for face-to-face interventions, are adhering to contractual hours with reasonable staffing levels for NHS services in place and are performing the highest possible levels of activity, with no undue priority being given to private activity over NHS activity.

• Accordingly, any practice not delivering the equivalent of at least 20% of usual volumes of patient care activity will be deemed to be non-compliant with the above criteria.

• In addition…

• Where this assurance is not received, we will revert to operating pre-existing contract arrangements from 20 July.”

As to record keeping, the fifth preparedness letter said (again so far as directly relevant to this case):

“We are working to rapidly complete work with the BDA and the profession to have established the new mechanism for the measurement of activity, patient outcomes and quality of care provision. Contractual requirements will be:

• maintenance of the eTriage system for recording of telephone/remote consultations

• FP17 data to be transmitted from all practices to evaluate treatment interventions at a practice level and patient outcomes.

• …

• …”

Ms Cross who gave evidence for the defendant said that the 20 % rate was calculated by reference to data in the 2019 financial year and that the BSA Information Sheet defined patient care as:

“All clinical contact that dentists or dental care professionals have with patients either face to face, by telephone or video consultation counted by the BSA via completed courses of treatment or via the Covid-19 triage portal”

The sixth preparedness letter dated 28^th August 2020 dealt primarily with safety issues. It repeated that “remote consultations remain a vital triage step”.

The seventh preparedness letter was dated 22^nd December 2020. It was headed “Contract arrangements from 1 January to 31 March 2021 (Q4)”. This was expressed to mark “…the next step in the restoration of dental services”.

The contractual arrangement for Q4 was that if providers delivered 45 % of their contracted UDAs for that period (that is to say 3/12ths of their contractual activity) they would be deemed to have completed 100%. There was some flexibility in that if providers delivered between 80 and 100 % of the 45 % then they could take advantage of the deeming arrangement, but their deemed UDAs would be reduced proportionately. For example, if 40.5 % of contracted activity was performed in Q4, the deemed activity would be 90 %. If less than 80 % of the 45 % was performed (i.e. less than 36 % of contracted activity) there would be no deeming and the number of UDAs for the quarter would be the actual UDAs performed. In addition, there was a 16.75 abatement applied to the deemed portion of the UDAs to take account of costs not incurred.

There was a discretion to be exercised in exceptional circumstances (by reference to guidance).

The seventh preparedness letter therefore summarised how the year end reconciliation would be carried out for the financial year 2020-2021. It said that for April to December 2020 the provider would be deemed to have delivered 100% of 9/12ths of annual contractual UDAs if the conditions in the preparatory letters had been met (with only activity actually performed being counted in months that those conditions were not met). It said that for January to March 2021 the reconciliation would be based on the deemed or actual UDAs as calculated by the above method. A number of declarations were required of providers. Contractual arrangements were to revert to normal in April 2021.

The BSA created a form for providers to record etriage activity. It also issued guidance on completing the form. The oral evidence was that this form was created in around July 2020 but that providers could also use forms created by their practice management provider as an alternative. As with the FP17 forms there were mandatory fields and a form would be rejected with an error code if the mandatory fields were not completed. Versions of the BSA’s written guidance are in the bundle. One page is dated 27^th November 2020 (which states that forms could be submitted directly from practice management systems from 1^st December 2020). The rest are dated 24^th March 2021. The guidance does not address the question as to whether there is a time period within which etriage forms must be submitted. However, the version in the bundle (as I say, dated 24^th March 2021) does say “only dates since 1^st March 2020” will be accepted.”

Ms Cross relies in her written evidence on a document entitled “NHSBSA Provider Assurance / NHSE-I COVID Provider Assurance Report (PAR) 20 Guidance” (which she says was available to providers from 27^th January 2021) as the basis for her assertion that the deadline for submitting etriage forms was 4^th January 2021. I do not think it is a proper basis for asserting the existence of such a deadline. Ms Cross’ evidence is that the document would only have been available to providers from 27^th January 2021. It cannot therefore reasonably be taken to be the source of a requirement on them to submit etriage forms by 4^th January 2021. However, in any event, the purpose of the document is set out in its first section, which reads so far as is relevant:

“NHSE-I have directed NHSBSA Provider Assurance Dental (PAD) to deliver an exploratory and fact-finding process, working with Commissioning teams and Providers to understand why contracts have not delivered the minimum of at least 20% of usual volumes of patient care activity, set out for patient outcomes in the Letter of Preparedness from July.”

It is for that purpose that the only data to be taken into account was that received by 4^th January 2021. The document states that there will be submissions legitimately received after that date.

The claimant’s recording of her UDAs in 2019-2020

In the financial year 2012 to 2013 the claimant’s practice carried out 99.31 % of its UDAs. This was within the 4 % tolerance so 143 UDAs were carried forward into the next financial year. In the year 2013 to 2014, the practice carried out 110.32 % of its UDAs. It received a payment for the additional UDAs performed. In the year 2014-2015, the practice carried out 95 % of its UDAs. This resulted in a clawback of £ 25, 147.13 for the failure to perform 1,047.8 UDAs. The claimant appealed. The clawback was upheld but the claimant was allowed to carry the 1,047.8 UDAs into the next financial year. In 2015 to 2016, the practice carried out 88.13 % of its UDAs. This resulted in a clawback of £ 60,444.59. The claimant again appealed but her appeal was rejected. In 2016 to 2017 the practice carried out 90.38 % of its UDAs. There was a clawback of £ 49,341.74.

In the financial year 2017 to 2018 it was originally recorded that the practice completed 44.59 % of its UDAs. The claimant appealed apparently on the basis that the work had been performed but the forms submitted late. As a result of the appeal, her UDA count was raised first to 71.51 %, then 99.53 %. The claimant was reminded, in the presence of her solicitor, that she was required to submit her forms within two months of the treatment. In 2018 to 2019 the number of performed UDAs was initially assessed at 7.44 %. She again appealed based on late submissions. She was again permitted to count late submissions and her total was calculated as 66.05 %, with a clawback of £ 179,047.45.

On 8^th November 2019 Jacqui Smith, the defendant’s contract support manager allocated to the claimant, emailed a mid-year review letter to the claimant. It said that the defendant had reviewed the FP17 forms that had been submitted up to September. It said that the practice had only performed 4,702.8 UDAs, 22.46 % of the annual number. The letter attached a self-assessment action plan template for return by 22^nd November 2019. It said that if there was a force majeure event, that should be reported and that if the claimant wished to discuss a variation she should not hesitate to contact the team.

The claimant submitted a word document on 20^th November 2019. This set out her action plan. It said that “to date” the practice had delivered 9,881 UDAs, being 47 % of the contracted number.

On 16^th December 2019, the claimant emailed Jacqui Smith. She said that she understood that there had been a national problem with claim submissions to the BSA for the last few days. She said that she was aware that as a result, claim bundles she had sent had not been transmitted and received by the BSA. She said that as a result “there will now be claims resent past the two month period…”. She identified the bundles as being numbers 5293 and 5299 to 5307. The email finished by saying “I have printed out these bundles of claims with data, before we resend them during the week if all is up and running at the BSA.”

Ms Smith forwarded this email to the BSA. On 17^th December 2019, the BSA confirmed to her that: “There have been problems over the last few days as Ms Balachandra as (sic) suggested.”

Jacqui Smith replied to the claimant on 6^th January 2020. She said that the defendant had been notified by the BSA that there was a problem “for a couple of days in mid-December” in relation to submitting claims. She provided a link to the BSA’s update. Ms Smith asked how many UDAs the problem related to and whether the claims had been resubmitted. She ended her email by saying:

“We would like to stress the point to you that, as of today, Compass is showing your achievement as 6,778.2 UDAs (year to date). This equates to 32.37 % which is extremely low, considering there are only now less than 3 months left in this financial year.

As we have previously advised you, unless it is outside of your control (i.e. a proven fault with the BSA), with effect from 01 April 2019, we will not allow any further late submitted claims/activity to be added to the contracted activity.”

(emphasis in the original email)

The claimant replied the next day to say that she would look into the exact numbers and write back with the performers that they related to.

On 4^th March 2020, the claimant emailed Ms Smith. Her email was headed “claims-BSA” and dealt with two topics. First, she said that she understood from her software provider that there “appears to be” a national issue regarding sending claims to the BSA and those claims being acknowledged by the BSA. She said that claim bundles 5356 to 5358 had been affected and as a result they may end up being acknowledged past the two month deadline. Second, Covid-19. The claimant said the practice was experiencing a large number of patient cancellations (over 63 % the day before), which was having a significant effect on their daily UDAs, which would in turn affect the end of year target.

On 4^th March 2020, Ms Smith asked the BSA to check whether the claim bundles referred to in the claimant’s two emails had been received and processed by the BSA. In relation to the bundles referred to in the claimant’s 4^th March 2020 email, the BSA confirmed that they had been received, dip-checked and processed as valid claims with UDAs allocated. As regards the bundles referred to in the claimant’s 16^th December 2019 email, the BSA said:

On 4^th June 2020, the claimant wrote to Ms Smith with the subject “Year End 19/20”. She referred to the Covid-19 adjustment which would count March 2019 rather than March 2020 figures. She said that as they were in dispute about the years 2017 to 2018 and 2018 to 2019, she would be grateful if the March 2017 figures could be used (which she attached). The claimant also attached her 16^th December 2019 email. She said:

“…As a result claims sent through to the BSA once the transmission service was up and running at the BSA (after the fault had been repaired by the BSA) have been rejected on the basis that they were sent too late. I understand all Area Teams have reverted any claims that were rejected and not paid owing to this. The number of UDAs that would have been usually accepted during December and sent within the two month period for myself = 2336.8 (plus UDAs for other performers on the contract that have been rejected on this basis still to be inserted).”

The claimant then calculated her year end position as 13,995.8 UDAs plus 2336.8 UDAs (which she called “December UDAs”) plus the March 2017 number of 4202.6 UDAs. She said that the number of UDAs completed for the financial year was therefore 20,510.2.

Ms Smith replied on 30^th June 2020 copying the claimant’s solicitor. She said that it was not permissible to use the March 2017 figure. She said the dispute about previous years had been closed for some time. She said:

“In relation to 2019-20 year end and your comment about activity (UDAs) not being included because of the BSA claiming issue in December 2019, this will be considered during the 2019-20 year end process”

Ms Smith followed this up on 1^st July 2020, when she again emailed the claimant and her solicitor explaining that she had received further advice. She said that the claimant would have to send her query along with supporting evidence to Nhsbsa.dentalcases@nhs.net. Ms Smith explained “They deal with requests for late submission and check the information before sending to us to consider.”.

The claimant’s evidence is that the claims in question were ultimately re-submitted between June and August 2020.

The defendant sent the claimant her year-end letter on 29^th July 2020. It said that the claimant had performed 13,830.8 UDAs, being 66.06 % of her contracted amount. The letter said that the amount to be recovered from the claimant was £ 184, 476.95, which would be done in 6 instalments. On 10^th August 2020, the claimant wrote to Ms Smith saying that she intended to appeal. The amount set out in this letter has in fact been recouped by the defendant.

On 1^st September 2020, the claimant emailed Ms Smith referring to her 16^th December 2019 and 4^th June 2020 correspondence. As regards the 4^th June 2020 letter, she said that the 13,995.80 figure was on Compass. She complained that the 2336.8 figure had not been acknowledged and was not on Compass. Ms Smith responded on 8^th September 2020 again copying the claimant’s solicitor, referring to her email of 1^st July 2020 “which explains the new process in which to raise any issues/concerns relating to 2019-20 year end”. The claimant’s evidence is that the figure of 2336.8 was wrong and the correct figure was that in her 15^th October 2020 correspondence (see below).

On 15^th September 2020, the claimant forwarded her 4^th June 2020 correspondence (which included the 16^th December 2019 email) to the email address Ms Smith had given her. On 7^th October 2020, the BSA responded. Its email included:

“…To enable us to put forward your request for consideration with your local area team, please can you kindly confirm the following.

•

Provider number

•

Correct pay statement number (s)

•

Patient (s) name and date of birth or claim reference number

•

Please supply a summary of the events that lead to the activity being considered outside of the ‘2 month rule’

•

Dates the activity relate to

•

Is there any evidence available to support your claim; for example a letter from your software company…”

It required a response by 14^th October 2020.

At 23:36 on 14^th October 2020, the claimant responded giving her provider number and attaching what she described as “the report of course of treatment numbers in respect to this matter”. This was a spreadsheet entitled “NHS Claimed Versus Paid”. It had three completed columns: a column giving Course of Treatment (‘COT’) numbers; a column giving the number of UDAs for each COT; and a column headed “Schedule Notes”. Most of the entries in the third column include the words “Late submitted claim Activity Units”.

At 10:38 on 15^th October 2020, the claimant emailed again attaching her 16^th December 2019, 4^th June 2020 and 15^th September 2020 correspondence. Her email included:

“…The BSA resumed their function in receiving claims from practices on 1^st January 2020.

As a result of ongoing claims transmission errors by the BSA during the month of December 2019, by the time claims were resent by the practice for all performers, they were rejected under the heading 'late submission'

I understand all NHS Area Teams nationally have paid for the claims that were rejected owing to the error of the BSA during the period and I would ask for the same.

Please find the Data (including as an attachment with COT numbers for each performer) for the claims not paid for the above reason.

Summary

Adrianna 813.2

Ali 313.8

MA 5487.6

Teodora 121.2

Hanna 3

Barinder 79.2

Maria 3

Total 6901 UDAs

As a result of this error the UDA achieved for the Year end 19/20 were greatly affected affecting monthly pay statements

Therefore to finalize Year End 2019/20

Number of UDAs 13995.8 agreed to date

December UDAs 6901UDAS

Total 20896 UDAs completed in Year End 19/20

This figure is of course are not inclusive of the losses of Uda’s owing to the pandemic lockdown in March 2020…”

(bold and underlining in the original)

The BSA responded on 16^th October 2020. It said that it could not progress the matter without all the requested information. It asked the claimant to add the patient (s) name and date of birth or claim reference number and the dates the activity related to.

On 19^th October 2020 the claimant replied. She said that column B was the COT and that “COT=Course of Treatment Number=Claim reference Number”. In relation to the dates the activity related to, she said ‘year end 2019/2020’. She said claims sent to the BSA from 1^st December 2019 to 2^nd January 2020 were rejected. She said this was a national issue and asked that her claims nevertheless be paid.

The BSA responded the next day to say that it still needed the specific treatment dates as well as the patient (s) name and date of birth. The claimant provided further information on 10^th November 2020. On 12^th November 2020, the BSA sent the claimant a blank spreadsheet with a column for each piece of information the BSA required. It required a response by 19^th December 2020. On the same day it emailed Jacqui Smith saying that it had created and sent the spreadsheet “hopefully we will be able to get the required information from them this time.”. Ms Smith replied to say that unless the information was supplied by Friday 20^th November they could not accept it “Ms Balachandra has been given countless opportunities to provide this information”.

On Monday 23^rd November 2020 at 05:10, the claimant replied attaching an updated spreadsheet. It was accepted by the defendant at the trial that this spreadsheet contained the information that the defendant required. In the column headed “please supply a summary of the events that lead to the activity being considered out of the “2 month rule”” the entry for every COT is “BSA unable to accept claims during December 2019”. The total number of UDAs claimed was 6,901. The BSA responded to the claimant on 25^th November 2020 saying:

“This has been received and we will reply in full as soon as possible.”

On 26^th November 2020 the BSA again emailed Ms Smith it said:

“The provider sent a new spreadsheet to us on Monday 23^rd November with just over 2,700 claims on, all with the date Dec 19. Some of these relate to 18/19, some are for early 2019 not December and some for accepted claims.

Please can you confirm that you are ok if we now reject this?”

On 2^nd December 2020, Ms Smith completed a “Dental Contract Management Group-request for consideration and recommendation” form for the claimant’s dispute. Under the heading for year end 2019/20, she said:

“

•

The contractor achieved 66.05 % at year end in 2019/20.

•

Contractor disputed year end figure – did not follow correct process for appeal.

•

Late submitted claims due to issues with BSA in December 2019.

•

Contractor given numerous chances to submit data, however, to date not provided it.”

On 3^rd December 2020, Ms Smith replied to the BSA’s email of 26^th November 2020. She said that a paper would be presented at a meeting the following week and asked the BSA to wait until the outcome of the meeting before responding. Ms Smith then asked a number of questions. One of them was “are you saying the dates of the claims (December 2019) received, do not correspond with completion dates of October 2019 onwards (as claimed by the contractor), so would not be relevant for the time period the contractor is stating the BSA had transmission issues with”. She said “I guess what I need is definitive details as to whether there is any evidence which shows that the contractor has a case in relation to her dispute”. She asked for a response by 8^th December 2020 so that it was in time for the meeting.

On 4^th December 2020 the defendant issued a breach notice to the claimant. The breach specified in the notice was:

“You have not delivered the amount of services specified in the Contract.”

It particularised this by saying that the claimant had only performed 13,830.80 UDAs or 66.06 % of the contract.

There was further correspondence between Ms Smith and the BSA between 8^th and 17^th December 2020. This set out some interrogation of the document that the claimant had submitted on 23^rd November 2020. The document was not, however, fully analysed at this time.

The Dental Contract Management Group report is dated 16^th December 2020. The DCMG recommendation was:

“The Group agreed that the contractor should not have the activity credited to her year end achievement, in relation to late claims, as she had been advised previously that NHSE/I would no longer allow this and she did not provide evidence to support her dispute.”

The claimant was notified of the outcome of her appeal on 23^rd December 2020. The reason given for rejecting the appeal was:

“…there was not sufficient evidence to show a fault with the NHS BSA, in relation to your late submitted claims. Therefore, the activity related to the late submitted claims will not be credited to your 2019/20 year end achievement.”

The defendant subsequently analysed the spreadsheet that the claimant provided on 23^rd November 2020. It compared the information on it to the BSA records of FP17 forms received from the claimant’s practice and processed. It was possible to conduct this exercise because of the CRN numbers that are common to both (the batch numbers are lost if a batch is rejected by Compass but the individual CRN numbers remain in any new submission). The analysis is recorded in three spreadsheets that Ms Cross gave evidence to explain.

At the start of the hearing, the parties agreed that I was not required to resolve any quantum issues. It was also the case that some of the detail of the analysis was not accepted by the claimant in evidence. However, it is clear from that analysis that the BSA records confirm that FP17 forms were submitted and processed for at least the overwhelming majority of the CRNs on the claimant’s 23^rd November 2020 spreadsheet. The defendant’s analysis divided the claims into seven categories by reference to the dates on which the evidence of Mr Lee states the BSA was having difficulties receiving FP17 forms: 13^th and 14^th December 2019. By far the largest category (with 5,475.8 out of the 6,901 claimed UDAs) were claims where the 2 months had passed before December 2019. Of these 5,475.8: 2.4 were from 2013; 23.4 were from 2016; 234.4 were from 2017; and 1, 864 were from 2018. There was a final category of 847 UDAs where the transmission issues fell within the two month period. The earliest date of the expiry of the two month period in this group was 22^nd December 2019. All of the submissions in this group were made between 13^th January 2020 and 18 August 2020 (that is to say between 3 days and over 6 months outside the 2 month period). According to the defendant’s analysis only 416.4 of the claimed UDAs were not marked as late and at least some of these had already been paid. 3 additional claims were in fact replacement claims.

The analysis shows that the claimant’s practice submitted claims on 3, 4, 5, 7, 10, 11, 12, 13, 17, 18 and 20^th December 2019 and again on 6, 7, 9, 10, 13, 16, 17, 18, 22, 23 and 24 January 2020.

The dispute for this financial year concerns whether the claimant provided the required 20 % of patient care to qualify for the modified scheme set out in the 5^th preparedness letter, for the period July 2020 to December 2020.

Ms Cross’ evidence is that the concept of UDAs was replaced for this period with a measure of ‘patient care volume’. The claimant’s practice was required to provide a patient care volume of 353.20. The defendant contends that the claimant’s practice only provided a patient care volume of 147. The claimant relies on just over 600 etriages which she says that she performed.

The BSA wrote to the claimant on 8^th February 2021 referring to the Covid PAR 20 process referred to above. The covering email said that following consideration of her FP17 and triage form data her contract had been selected as part of that process. It referred to an attached covering letter “explaining the Covid PAR 20 process” and pro-forma that the claimant was asked to complete. The covering letter described what was happening as an “exploratory and fact-finding process, working with your commissioning team”. It said “As the provider of the contract we would like to understand, from your perspective, the mitigation for the contract not delivering the equivalent of at least 20 % of usual volumes of patient care activity”.

The claimant was chased by the BSA on 15^th February 2021. On 20^th February 2021, she provided a completed pro-forma. This calculated 20 % of the contract activity as “883.2 FP17 forms” (a figure Ms Cross says that she does not recognise) and said that well over this number had been submitted. It said this was a mixture of “etriage remote forms and etriage face to face forms using our computer software”. This statement was inaccurate.

The claimant submitted 534 etriage forms on 21^st May 2021. This is confirmed by the BSA. However, they were rejected by the Compass system with the error code: “RESPONSE CODE @312 NO SIGNIFICANT TREATMENT ON AN EDI CLAIM”. A few of these forms are in the bundle. They give the patient’s name and have the box “Triage completed by a dental care professional” ticked. They give the primary triage call reason as being “pain”, but they do not provide any further details about the treatment. Ms Cross’ evidence is that although the forms were rejected, they were still allocated a CRN when initially uploaded. Ms Cross says that from the BSA data she can say that these forms must have been created in around March 2021.

On 31^st May 2021, the claimant emailed the BSA. She listed the claims that had been rejected (by reference to batches) and set out the response code. She said that the claims related to the period 1^st April to 31^st December 2020. Then:

The BSA responded on 31^st May 2021 with what appears to be in part a pro-forma email. It asked for the claimant’s date of birth, performer number and GDC number. There were also links to Compass video tutorials and an online knowledge database. The claimant provided the requested information on 11^th June 2021 and chased on 18^th June 2021 for a response. On 18^th June 2021 the BSA said it had responded on 11^th June 2021 and attached a guide as to how to process an etriage form. It said that if the claimant was unable to adjust the form and resubmit she should reply with two examples of the rejected form giving: patient’s full name; date of birth; treatment start and end date; claim reference number; contract number; and performer number.

The claimant emailed again on 29^th June 2021. She repeated what she had said in previous emails. She complained that the response of 18^th June 2021 was generic and said that she had not submitted the forms by Compass because she had been told she could use her SOE system. The reply the same day referred to the guide for Covid 19 reporting in Compass and said that if that process had been completed, the claimant should provide three examples of the errors showing: patient’s name; date of birth; date of triage; performer number; and GDC number. The claimant responded the next day repeating that she had been advised that it was fine to submit etriage forms using the computer software system and she did not need to send by Compass also. The reply on 30^th June 2021 appears also to be partly a pro-forma reply but it confirmed that forms could be transmitted directly from the practice management system. On 1^st July 2021, the claimant replied pointing out that she had submitted using SOE, that the forms had been rejected (giving the response) and said “please advise what I should do?”. The BSA response on 5^th July 2021 said that it would like to see some examples of when forms are rejected to see how it could help and asked for the same details as in previous emails. The email also said that “The deadline for providers and performers to confirm their NPE for the 2020/21 financial year has been extended until 11.59 pm on Sunday 18^th July 2021”.

On 8^th July 2021, the claimant provided what she said was the requested information with patient names redacted. She said please follow up if you require additional information on these patients. The attachment was a spreadsheet containing entries for ten patients. There were columns for each of: date of birth; treatment start and end date (in November and December 2020); claim number; reference number; contract number and performer number.

Given the reason the defendant gives in these proceedings for needing to interrogate the data, I note that the information that the BSA requested did not include the type of treatment administered.

On 29^th July 2021, the BSA wrote to providers, including the claimant. It referred to the year end 2020/2021. It said that because her delivery appeared to be below the threshold, NHSE/I was working with regional colleagues to give further consideration prior to her final position being confirmed. It said:

“Any mitigating reasons you may have already provided are being considered by your regional team and they may contact you for further information. Should this be the case we strongly encourage you to engage with them.”

On 30^th July 2021 and 2^nd August 2021, the claimant sent what appears to be the same email to a series of email addresses at the BSA and the defendant, including Jacqui Smith. It first says that she had performed 2755 UDAs and had therefore complied with the 45 % requirement for January to March 2021. As regards the 20 % issue, the email says that the 534 forms for triage assessments carried out on the telephone had been submitted but not registered by the BSA. It attached a document with 24 pages of entries showing submissions and rejections. It also attached a spreadsheet containing 603 rows. The email described the spreadsheet as:

“…a detailed report that shows every single patient detail of every single initial assessment telephone triage that was carried through and sent to the BSA as a FP17 claim [the claimant appears mistakenly to use FP17 also to refer to etriage forms] during April 2020 to December 2020-every claim in this report was rejected by the BSA with a response code…”

The spreadsheet has columns that have been filled out for: provider name; contract ID; performer ID; performer name; course of treatment number; patient name, date of birth and address; contract number; and practice name and address.

The email also acknowledged that the initial etriage claims were sent past the two month window but said that this was due to mitigating circumstances associated with Covid-19. The email attached a two page document giving details of those circumstances. They include the range of Covid-19 related isolation, family and other issues. The claimant gave evidence about the particular difficulties faced by dentists at this time not least associated with the high risk contact inherent in dentistry. She referred to the need for specialist PPE and the plethora of guidance. The attachment also referred to the increased patient volume due to the fact that patients had not been able to see a dentist during Covid-19.

Neither the claimant nor Ms Cross attaches a response to these emails. Instead, Ms Cross says that the information required by the BSA had not been provided and the etriage forms had not been re-submitted. She said that therefore the etriage forms could not be processed to ascertain whether these would count towards patient care activity. Ms Cross’ evidence was that it had therefore been decided that the claimant did not meet her 20 % threshold and her obligations from 1^st January 2021 to 31 March 2021 reverted to the normal contractual UDA target.

On 20^th January 2022 the defendant sent the claimant a letter entitled “Year-end reconciliation”. I will deal with it in more detail below. In summary: it referred to the exchange of emails in early 2021 under the PAR 20 process; said that the claimant had not demonstrated why she had the low levels of delivery; and said that as a result, with effect from 20^th July 2020 “as indicated within Dental Preparedness Letter 5” the claimant’s contract would revert back to normal contractual arrangements. The letter said that actual (adjusted) UDAs was 2, 755.2. It calculated the clawback as £ 315, 959.25.

On 24^th October 2025 the defendant obtained an order for specific disclosure. It required the disclosure of:

The witness statement in support explained the reason for the application as being to understand whether the activities relating to the etriage forms submitted would support the claimant’s claim and whether all dental services claimed had been provided. The claimant complied with the order on 20^th November 2025. The spreadsheet appears to have been created by adding columns to the document attached to the 30^th July 2021 and 2^nd August 2021 emails, including for date of treatment. Ms Cross said that she had not had time to consider the response in detail by the time of her witness statement of 15^th December 2025 but provided detailed comments on four patients to illustrate problems she identified. The claimant filed a witness statement responding to the issues raised about those four patients.

Unsatisfactorily, neither the defendant nor its solicitors had properly reviewed this material by the time of the trial. As a result, any parts of those records that might have been in dispute were not in the trial bundle.

The parties referred to a number of provisions in the contract. Those that are principally relevant to the issues I have to decide are the following.

“PART 1

DEFINITIONS AND INTERPRETATION

…

1…”unit of dental activity” means the unit of activity which in this Contract used to-

(a)

Express the amount of, and

(b)

Measure in accordance with clauses 79 to 82 the provision of,

Mandatory services and advanced mandatory services provided under this contract.”

[also by clause 1, advanced mandatory services are mandatory services which because of the high level of facilities, experience or expertise required, are provided as a referral service]

…

PART 2

RELATIONSHIP BETWEEN THE PARTIES

…

“10.

In complying with this Contract, and in exercising its rights under the Contract, the PCT must act reasonably and in good faith and as a responsible public body required to discharge its functions under the Act [defined as the National Health Service Act 1977]”

[It was common ground between the parties that the temporary arrangements set out in the preparedness letters did not constitute variations of the GDS Contracts (cf: clauses 287 and 288). It was agreed that they were put in place as part of the obligation to act reasonably in clause 10.]

…

PART 7

…

PROVISION OF SERVICES

…

“53.

The Contractor shall indicate on the form supplied to the PCT pursuant to clause 222 whether the course of treatment was completed, and if the course of treatment was not completed, provide the reason for the failure to complete the course of treatment.

…

PART 8

MANDATORY SERVICES

[Clauses 74 to 76 set out the mandatory dental services.]

“77.

The Contractor shall provide [20,937] units of dental activity during 2007/08 and in each financial year thereafter.”

…

PART 13

RECORDS, INFORMATION, NOTIFICATIONS AND RIGHTS OF ENTRY

…

221 The Contractor shall, within 2 months of the date upon which –

221.1

it completes a course of treatment in respect of mandatory or additional services;

…

Send to the PCT, on a form supplied by that PCT, the information specified in clause 222.

222.

The information referred to in clause 221 is-

222.1

details of the patient to whom it provides services;

222.2

details of the services provided (including any appliances provided) to that patient;

222.3

details of any NHS charge payable and paid by that patient; and

222.4

in the case of a patient exempt from NHS charges and where such information is not submitted electronically, the written declaration form and note of evidence in support of that declaration.”

[It was common ground that the relevant form was the FP17].

…

PART 14

PAYMENT UNDER THE CONTRACT

239.

The PCT shall make payments to the Contractor under the Contract promptly and in accordance with both the terms of the Contract (including, for the avoidance of doubt, any payment due pursuant to clause 240), and any other conditions relating to the payment contained in directions given by the Secretary of State under section 28N of the Act subject to any right the PCT may have to set off against any amount payable to the Contractor under the Contract any amount-

239.1

that is owed by the Contractor to the PCT under the Contract;

239.2

has been paid to the Contractor owing to an error in circumstances when it was not due; or

239.3

that the PCT may withhold from the Contractor in accordance with the terms of the Contract or any other applicable provisions contained in directions given by the Secretary of State under section 28N of the Act…

PART 22

VARIATION AND TERMINATION OF THE AGREEMENT

…

333 Where the Contractor has breached the Contract other than as specified in clauses 322 to 328 [which are not relevant to this case] and the breach is not capable of remedy, the PCT may serve notice on the Contractor requiring the Contractor not to repeat the breach (“breach notice”).”

…

336.

If the Contractor is in breach of any obligation and a breach notice or a remedial notice in respect of that default has been given to the Contractor, the PCT may withhold or deduct monies which would otherwise be payable under the Contract in respect of that obligation which is the subject of the default.”

…

341.

In clauses 342 to 348, “contract sanction” means –

341.1

termination of specified reciprocal obligations under the Contract;

…

341.3

withholding or deducting monies otherwise payable under the Contract.

…

344.

If the PCT decides to impose a contract sanction, it must notify the Contractor of the contract sanction that it proposes to impose, the date upon which that sanction will be imposed and provide in that notice an explanation of the effect of the imposition of that sanction.

345.

Subject to clauses 347 to 348, the PCT shall not impose the contract sanction until at least 28 days after it has served notice on the Contractor pursuant to clause 344 unless the PCT is satisfied that it is necessary to do so in order to-

345.1

protect the safety of the Contractor’s patients, or

345.2

protect itself from material financial loss.”

[Clauses 347 to 350 deal with the NHS dispute resolution procedure.]

The Law

Turning first to the principles of contractual interpretation. In Wood v. Capita Services Limited [2017] AC 1173, at paragraph 10, the Supreme Court said:

“The court’s task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context reaching its view as to that objective meaning…”

(see also Arnold v. Briton [2015] AC 1619 at paragraphs 14 to 22)

The parties agree that the test for whether the defendant has acted reasonably for the purposes of clause 10 of the contract, is that set out in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223. See Braganza v. BP Shipping Ltd [2015] 1 WLR 1661 and Rahman and Partners (a firm) v. North Central London Integrated Care Board [2025] EWHC 1541 (KB). That test is:

“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.”

(see Braganza at paragraphs 24 and 30)

Although Mr Butler said that he was firmly basing his case on the defendant’s contractual duty to act reasonably, I note that the parties also agreed that the defendant is subject to public law constraints when exercising its contractual powers: Jones v. NHS Commissioning Board [2017] EWHC 3457 (QB) and R (Haffiz) v. NHS Litigation Authority [2020] EWHC 3792 (Admin). There was a dispute as to the precise content of those public law constraints. It is unnecessary to resolve that dispute in order to determine the issues I have to decide.

A GDS Contract was considered by the Court of Appeal in Powys Teaching Local Health Board v. Dusza and Anor [2015] EWCA Civ 15. There were a number of issues in that case. The one that is relevant to the present dispute concerned clause 202 of the contract. That requires that a full, accurate and contemporaneous record is kept in respect of the care and treatment given to each patient. The specific issue was whether a dentist’s failure to comply with the obligation to record the fact that he or she has conducted a full mouth examination, entitled the Board to withhold payment. The appellant in that case accepted that if it was a reasonable inference from other records that the examination had been carried out, the respondent would have been entitled to payment. The Court of Appeal said this at paragraphs 41 and 42:

“41.

Largely for the reasons given by the judge in paragraphs 24 and 25 of the judgment, we consider it impossible to construe the relevant provisions of the GDS Contract, when read in the context of the entire contract and the 2006 Regulations, as imposing, as a precondition to payment in relation to UDAs in respect of a particular course of treatment, compliance with the dentist's undoubted obligation to keep accurate and complete records of that course of treatment, including a record of the examination carried out. There is nothing in the language used in the relevant provisions which could be said expressly to impose compliance with any such requirement as a precondition to payment; the obligation to record the fact of a full mouth examination cannot be said to be so vital to the course of treatment that a failure to record goes to the substance of the dentist's entitlement to be paid for the treatment which he has carried out; see per Lord Simon of Glaisdale in Schuler v Wickman Machine Tools [1974] AC 235 , at 264E-G.

42.

…. Records are at most evidence of work done; payment is made in respect of the work done, not for the keeping of records of work done. Part 14 sets out the conditions for payment under the contract; these are entirely separate from the provisions relating to record keeping contained in Part 13 . In addition to the dentist's obligation to keep records under clause 202, the dentist has extensive obligations to notify to the Board of relevant information in relation to courses of treatment under clauses 221 in 222 of Part 13 , and the Board has extensive rights to require information from the dentist under clauses 211 and 212 of Part 13 . There is no business reason why compliance with the recording obligation under clause 202 should be construed as a precondition to payment, any more than compliance with any of these extensive obligations on the part of the dentist to provide information.”

(underlining added)

I begin by identifying the basis on which the defendant relies to justify the claw-back in this financial year.

The defendant says that the claimant did not provide the contractual number of UDAs. That is the reason given for the claw-back in the 29^th July 2020 letter. It is the reason set out in the breach notice. The counter-claim seeks a declaration that the claimant breached clause 77 of the contract in this year by failing to provide 20, 937 UDAs. Ms Thelen confirmed that this was the basis for her case in a note on the contractual position that she filed in reply to the claimant’s skeleton argument.

The defendant accepts (subject to the precise quantum, which I am not asked to resolve) that the claimant’s practice in fact carried out at least substantially more UDAs in 2019 to 2020 than the number the defendant set out in the claw back letter and the breach notice. It accepts that FP17 forms were submitted for these UDAs and that the BSA has accepted and processed them. The BSA will have used the data in them for its own purposes. In addition, by the time of the breach notice, the BSA had had the FP17 forms for some time and the claimant had sent her spreadsheet on which the defendant’s subsequent analysis of her position was based. As a matter of fact, the only relevant failing was that the FP17 forms were submitted outside the two month period set out in clause 221 of the GDS Contract.

The defendant’s position is that for the purposes of assessing compliance with clause 77 of the contract, the contract entitles it only to count UDAs set out in FP17 forms received within the two months. The Defence puts it this way:

“24.1

The Claimant breached Clause 77 of the GDS Contract by not delivering the number of UDA specified in that clause based on FP17 data sent to the BSA by the Claimant, pursuant to clause 221 and 222 and calculated pursuant to Direction 32.3 (e) of the Statement of Dental Entitlement 2013. [32.3 (e) is a typographical error for 3.23 (e)]”

Ms Thelen’s argument went as follows. She said that clause 239.3 of the contract permitted the defendant to set-off from the payments it makes to the contractor, any amount that it may withhold “in accordance with the terms of the contract or any other applicable provisions contained in directions given by the Secretary of State…”. She identified the relevant directions as the General Dental Services Statement of Financial Entitlements 2013 (‘the SFE’) made under section 103 of the National Health Service Act 2006 (the successor to the provision set out in clause 239.3 -see clause 2.8 of the GDS Contract). Ms Thelen relied on paragraphs 3.11, 3.23 (e) and 11.7 of the SFE. They provide, so far as is relevant, that:

“3.11

Using the paragraph 38 returns which have been submitted by the contractor since the scheduling date in the previous month, the Board will make a determination of the amount to be deducted that month in respect of NHS charges…”

…

3.23

The Board must, by 30^th June in each financial year, send the contractor an Annual Reconciliation Report…which must include (but not be limited to), in respect of the previous financial year –

…

Ms Thelen identified the relevant Regulations as the National Health Service (General Dental Services Contracts) Regulations 2005 and the provisions set out in paragraph 38 and schedule 3 as clauses 221 to 222 of the GDS Contract.

Ms Thelen’s submission as to the effect of these parts of the SFE was that they incorporate clauses 221 and 222 of the contract into the annual reconciliation process, which, she said crystallises what is owed by a provider to the defendant as a result of any over-payment. Ms Thelen pointed to the fact that providers are in effect pre-paid based on estimates and relied on Ms Cross’ evidence as to the administration problems that would result if the two month rule were not to be enforced.

Ms Thelen said that her analysis demonstrates that there is an obligation to comply with clause 221 of the GDS Contract as, in effect, a “pre-condition to payment”. She sought to distinguish the decision of the Court of Appeal in Powys by saying that it was not directly concerned with claw-back mechanisms or over payment. She relied on paragraph 5 of the judgment in that case, which reads in part: “If a dentist fails to meet his UDA targets for the year, the Board can claw back monies that have been paid”. She also referred to chapter 9 of the Policy Book for Primary Dental Services.

The claimant’s argument is straightforward: she has done the work and therefore she is entitled to be paid. Mr Butler pointed out that the defendant has not served a breach notice in relation to any breach of clause 221 or followed any procedures relying on such a breach. He says that the decision of the Court of Appeal in Powys is authority for the proposition that compliance with clause 221 is not a pre-condition for payment under the contract.

I do not think that clause 77 of the contract can be interpreted in the way argued for by the defendant.

It must be interpreted in its contractual context. The GDS Contract is the mechanism by which the defendant complies with its duty to procure dental services for those entitled to receive them on the NHS (whether with or without payment). It does this by setting out mandatory services that a provider who enters into such a contract must provide to members of the public (see clauses 74 to 76). It measures the mandatory services that the provider must provide in UDAs (see clause 1). It sets out the annual quantity of UDAs that the defendant must provide in clause 77. Clause 77 is therefore the means by which the defendant complies with its duty to procure dental treatment for NHS patients. The subject matter of the obligation is the actual treatment of patients by the provider.

That this is the case is also supported by the evidence of Mr Lee. He said that all FP17 forms are processed, regardless of when they are submitted, at least in part so that the BSA can record the treatments patients have received.

Given that the subject matter of the obligation is the actual treatment of patients, the defendant’s case that the claimant has breached the obligation in clause 77 or has otherwise not completed the contractual number of UDAs must fail. As I have said, it is common ground between the parties that the treatments set out in the late submitted FP17 forms were performed.

Clause 239 is in a separate part of the contract. It is concerned with payment, not with counting UDAs for the purposes of clause 77.

Paragraph 3.23 (e) of the SFE cannot be interpreted as creating a condition of payment that the FP17 forms be submitted within two months. It creates the obligation to produce an annual reconciliation statement (which I accept as a matter of practice forms the basis for the defendant’s calculation of the year end positions) and says what such a statement must contain. It says that the annual reconciliation statement must use data from the FP17 forms that are submitted. However, paragraph 3.23 (e) does not take the next step of saying that if a form is submitted after the 2 month deadline, no payment will be made in relation to the services set out in that form. It must be remembered that forms are submitted throughout a financial year. There may therefore be many late forms that are received and processed by the BSA long in advance of the preparation of the annual reconciliation statement. Mr Lee’s evidence was that there was no additional cost to the BSA in adding late forms into the totals. If the SFE were to have the draconian effect argued for by the defendant, one would expect the defendant to be able to point to a clear statement that says that in terms . It did not do so.

Paragraph 11.7 of the SFE does not assist Ms Thelen’s argument either. It does not itself set out the bases for withholding or recovering monies. It deals with the question as to what happens when another provision does so.

As to paragraph 3.11 of the SFE, it is concerned with the deduction of amounts to take account of patient charges received by the provider. It seems to me that this undermines rather than assists the defendant’s argument. It shows that the defendant’s approach to late forms is inconsistent. If the defendant or the BSA need to rely on the data in a late form for their purposes, they do so. If the claimant wishes to rely on the data in a late form to prevent the claw-back of monies, the defendant says it is entitled not to do so.

In the end, however, Ms Thelen’s argument is essentially that compliance with the two month time period for the submission of forms is a pre-condition for payment. However, the defendant did not justify its decision to claw-back the relevant amounts on the straightforward basis that the work had been done but that it is nevertheless entitled not to pay for UDAs if FP17 forms are submitted late. Had the defendant done so, it would have faced the hurdle of the decision of the Court of Appeal in Powys at paragraph 42. It would also have faced the hurdle that if the contract or any provision that was incorporated into the contract wished to make compliance with the two month period a pre-condition for payment, one would expect there to be a clear statement saying that in terms. I was not taken to any such statement. In addition, of course, as the claimant says, the defendant has never issued a breach notice alleging a breach of clause 221. As I have said, the basis for the defendant’s position was that the relevant number of UDAs must be regarded as having not been done and that there has been a breach of clause 77 of the contract.

I do not express any views as to what remedies, if any, the defendant might have against a provider who submits forms after the two month period. My decision is confined to the basis on which the defendant approached the claimant’s 2019-2020 position, the breach set out in the breach notice and the Defence and Counterclaim, along with the specific arguments it advanced to support it.

issue 2 - reasonableness

This question would only have arisen if the defendant was correct as to its primary contractual position. It accepted that it had a discretion to count and pay for UDAs in late forms. It accepted that this discretion had to be exercised reasonably in the sense that I set out above.

Given my conclusion on the first issue, it is unnecessary for me to express any conclusion on this issue.

I accept Ms Thelen’s submission that the claimant has not established that the technical problems experienced by the BSA were the reason for her claims being submitted late. The evidence is that there were technical issues on only three days in December 2019. The analysis conducted by the BSA on the late forms demonstrates that the claimant’s practice was submitting forms on other dates throughout December. It also demonstrates by reference to the dates of the treatments on the submitted forms, that a considerable proportion of the forms were already late by December 2019.

I also accept Ms Thelen’s submission that the claimant’s attempt to explain the late forms by reference to delays in putting performers on the system should be rejected. That explanation was provided for the first time in a reply witness statement and then in her oral evidence. It is not mentioned in any contemporaneous correspondence, in the claimant’s pleadings or in her original witness statement. Her repeated reliance on this explanation in her oral evidence was unimpressive.

On the whole of the evidence, I conclude that the claimant has difficulties with complying with her administrative obligations towards the defendant. These difficulties appear to have been exacerbated during the Covid-19 pandemic. My assessment of the claimant is that she did not want to face up to these difficulties but sought to find excuses for them in order to avoid the claw-backs that the defendant sought. These excuses were, as I have said, not supported by the evidence.

However, given that I have found that as a matter of interpretation of the contract the defendant was not entitled to clawback these amounts on the basis it has sought to do, my conclusions on this aspect do not affect the outcome of this case.

The issue on this aspect of the case is whether the defendant has acted reasonably within the meaning of clause 10 of the contract. The test is the two limb test from Wednesbury that I set out above. My task is not to decide whether I would have come to a different decision to that taken by the defendant; it is to conduct a review of the defendant’s decision by reference to that test.

I have set out the temporary arrangements that were put in place in 2020 to 2021 to take account of the Covid-19 pandemic, above. In so far as they are relevant to this case, there were two periods: July 2020 to December 2020 and January 2021 to March 2021. Again, so far as is relevant to this case, in the first period providers were obliged to provide 20 % of dental activity, which could include telephone triage activity. If they did that, they were entitled to be paid their full contractual value for that period. In the second, if the provider performed at least 80 % of 45 % of their usual UDAs they would be deemed to have performed the rest (subject to a set deduction for reduced overheads).

Ms Thelen accepted in her closing submissions, that the claimant complied with the 45 % requirement for the second period. However, the defendant’s case is that the arrangements were “all or nothing”. If a provider failed to reach the 20 % in July 2020 to December 2020, they could not take advantage of the 45 % arrangements for January to March 2021. Their annual payment would be calculated simply on the number of UDAs they had completed in the financial year (with an adjustment for the actual lock-down earlier in 2020).

The dispute before me was whether the claimant had established that she had reached the 20 % threshold. I did not hear detailed argument on the terms of the temporary arrangements or whether they were themselves reasonable. Given that the issue before me was narrow, I say no more than it is not necessarily clear to me from reading the seventh preparedness letter that the arrangements were expressed clearly to operate in this “all or nothing way”. Whether they were envisaged at that time to operate in this way or not and whether the way they were applied generally was reasonable, are not issues that I have to decide.

Having said this, the defendant’s position in this respect is relevant to my decision. If the defendant’s position is correct, the consequences of not reaching the 20 % in July 2020 to December 2020 were financially very significant. This in a context of a dental practice with significant overheads. The effect of this on the claimant is set out in her witness statement. The defendant accepted in its submissions that the consequences of its decision include financial hardship to the claimant. I must therefore subject the defendant’s actions in 2020-2021 to appropriately close scrutiny before deciding that it acted reasonably.

I do not accept that there is sufficient evidence of a deadline of 4^th January 2021 for submitting etriage forms. As I say above, the document Ms Cross relied on for this deadline does not support it. In addition, the BSA was still updating its Compass guidance on etriage forms on 24^th March 2021 and all that that guidance says about dates is that only dates since 1^st March 2020 would be accepted.

The only contemporaneous evidence that the defendant has filed to explain its decision to enforce the GDS Contract to its full extent for the period 2020 to 2021 is its letter to the claimant dated 20th January 2022. The letter refers to the fact that the defendant had been conducting further checks and clarifications in respect of all contracts where there were concerns. It said that its calculation was based on “your submission of FP17/FP17(O) and etriage (including FD activity) in the Compass schedules from August to December 2020 (23^rd July to 16^th December 2020)…”. It then referred to the fact that the BSA had contacted the claimant “..to provide a response via a question pro-forma” (which I read as the one sent on 8^th February 2021). It then said:“Your response to NHS BSA has been considered locally by NHS England and NHS Improvement and it has been decided that you have not demonstrated any sufficient rationale that would explain or justify the low levels of delivery or why your circumstances were different to those experienced by all providers.” . Ms Cross’ oral evidence was that there were no other documents relating to the internal processes of dealing with the claimant’s etriage forms. Although she said “This letter was produced from all the data that has been sent through”. It is not clear whether Ms Cross was involved in this decision at the time, her evidence was that the issue was being considered by a national team. As I have said, she says in her witness statement that because the etriage forms had not been submitted with the necessary information they could not be processed “…to ascertain whether these would count towards patient care activity and that Dr Balachandra had delivered the relevant level of patient care to achieve the 20 % threshold.”. 

The defendant’s decision was therefore that the claimant had not done the relevant work and had failed to explain or justify that fact.

The starting point for considering that decision is that the 20 % scheme must have been directed to actual dental activity rather than simply record keeping. As the Court of Appeal in Powys said in the context of the issue that arose in that case “…payment is made in respect of work done, not for keeping of records of work done.”.

It seems to me that the defendant was required to approach its decision having regard to the following:

In addition, the defendant was required to consider the information that had in fact been provided by the claimant both to the BSA and her contract manager at the defendant: Ms Smith.

The most significant material that the defendant was required to consider was the claimant’s emails of 30^th July 2021 and 2^nd August 2021 (which appear to have followed the BSA’s email to her of 29^th July 2021 saying that her position was being considered). They attached detailed evidence that etriage forms had been submitted for named patients (there were 24 pages of lists of such forms). They attached an example of an actual form which had the box “Triage completed by a dental care professional” ticked and the reason given for the “Primary triage call reason” being “pain”. It is right to say that the dates on these pages do not appear to correspond to the relevant period (and the claimant could not explain what the dates signified in her evidence). However, the emails also attached the spreadsheet that had 603 rows which were said to be relevant dental activity. Each row identified the patient by name and date of birth and the dentist who had conducted that activity. The emails also attached a mitigation statement setting out the administrative and other issues caused by Covid-19. That statement set out facts which appear to be credible because they are effects of Covid-19 on businesses with which most people would be familiar. The face of the email pointed out that the claimant had complied with the 45 % requirement for January to March 2021, something that is accepted by the defendant.

In so far as the defendant wished to take into account the background to the submission of the material in this way, it seems to me that it would also have been required to take into account the correspondence between the claimant and the BSA from May 2021 (some of which was also attached to the July and August 2021 emails). That showed that the claimant did try and make enquiries about the problems with the etriage forms she was experiencing. It is to be remembered that this was a short lived bespoke system for that year. The claimant clearly could have done more to solve the problem and engage with the guidance she was being directed to, however there seems to me to be some justification for her frustration that she appeared to be being given pro-forma information and that she was being directed to guidance she was told was for the Compass system while she was pointing out that she was using her own software (as she was entitled to do). In any event, the claimant provided the information that the BSA asked her to provide in that correspondence. There is no correspondence in the bundles to evidence any continuing engagement by the BSA with the defendant once she had done so.

As Ms Thelen says, the claimant’s conduct in this period was not free of blame. Her initial response to the enquiry by the BSA was that she had submitted the requisite number of etriage forms when she had not done so. Her evidence before me was also inconsistent about the etriage forms she did submit in May 2021. On the first day of her evidence, the claimant said that the forms were created contemporaneously with the treatment. She said that Ms Cross’ evidence that the computer records showed that they were only created in March 2021 was incorrect. When she came to court to resume her evidence the following day, the claimant accepted that she created the forms in March 2021, although she said they were based on patient records taken contemporaneously. This seems to me to be more evidence of the claimant’s unwillingness to accept that there are shortcomings in her administrative arrangements and be willing to seek to give inaccurate explanations for those failings to try and avoid resulting clawbacks. In addition, as I have said, the claimant could have done more to attempt to solve her submission problems and to engage with the guidance she was being pointed to.

It does not appear from the face of the letter of 20^th January 2022 (I repeat, the only available contemporaneous document) that the defendant considered the 30^th July 2021 and 2^nd August 2021 emails or the correspondence between the claimant and the BSA, when making its decision. The only document that is expressly referred to in the letter is the claimant’s response to the pro-forma questionnaire. This despite the letter saying that three agencies had been involved in considering her position. There is no correspondence before me that shows further engagement by the defendant or the BSA with the claimant between August 2021 and January 2022, despite the email of 29^th July 2021 suggesting that that might occur. I repeat, Ms Smith did not give evidence. This lack of material showing that this documentation was considered means that there is also no evidence that it was considered having regard to the factors I list in paragraph 131 (at least (a) to (d)), above. Were all these matters to have been taken into account, it seems to me that the defendant would have had some difficulty in concluding, as it did, that the claimant had not done the relatively small number of additional patient contacts that she required for her 20 %, at least without further engagement with the claimant.

Were the matter to have finished there, I would agree with the claimant that the defendant had not acted reasonably in deciding to claw-back the large sum that it did, at least within the meaning of the first limb of the test in Wednesbury.

However, the matter does not stop there. The defendant has decided to investigate whether the claimant in fact carried out the dental activity she claims to have done. I do not need to address Mr Butler’s argument about the timing and manner in which that was done. As a general proposition, the defendant is entitled to investigate that matter and the court has now made an order for specific disclosure to enable it to do so.

I have considered whether I can do what was discussed at the beginning of the hearing and decide whether the claimant actual did the work she is claiming she did, but on the material that was filed before the specific disclosure application. I do not think that it would be appropriate for me to do so. The parties are in possession of evidence that is relevant to the determination of that question, which evidence I have not seen. It would not be appropriate for me to make a finding which may turn out to be inconsistent with that material.

As discussed at the hearing, if the parties wish me to resolve any factual issues arising from the material produced in response to the specific disclosure application, I will do so. Similarly, if, despite what I say above, there remains a dispute about the consequences for the claimant’s claim of a decision one way or the other on the issue as to whether the work was done, I will resolve that question also.

Turning to the declarations sought by the claimant.

I understand that the mid-year review declarations are no longer sought (it was conceded by Mr Butler that the 2019-2020 mid-year review was done and I don’t think that it could be said to have been unreasonable for the defendant not to conduct a mid-year review in 2020-2021, given the temporary Covid 19 arrangements).

As regards the financial year 2019-2020 I grant the claimant a declaration that the defendant was not entitled to withhold, set-off or recover monies where the UDAs were actually done by her practice in that financial year. I understand that the parties will agree how many UDAs that amounts to. Given my findings, the defendant is not entitled to the declaration it seeks in its counter-claim for this financial year, except in relation to any UDAs that were not actually performed. As I say, I am not required to resolve the question as to how many UDAs were not actually performed.

As regards the financial year 2020-2021, the orders to make in respect of this financial year must wait the outcome of the investigation as to whether at least the required quantity of clinical patient contacts to make up the 20 % were actually carried out by the claimant’s practice.