NHS Resolution Has the Power to Award Interest
In a recent case, the Court of Appeal has confirmed that primary care providers can claim interest on sums awarded through NHS Resolution.
Background - SSP Health Ltd v NHS England
SSP Health Ltd (SSP) was a primary care provider which had taken on multiple GP practices and health centres under APMS contracts. The contracts were NHS contracts (ie not contracts at law). SSP claimed that NHS England had failed to make payments amounting to £587,808, owing over a period of more than four years. The dispute was referred to NHS Resolution.
The Adjudicator acting under NHS Resolution found that NHS England owed SSP £587,808 under the APMS contracts, but did not award SSP interest.
SSP issued Judicial Review proceedings seeking to challenge the Adjudicator’s decision not to award interest. One of the grounds raised was that the Adjudicator had failed to recognise that they had the power to award interest.
The Court at first instance held that the Adjudicator had recognised that they had the power to award interest but had declined to do so in the circumstances. SSP appealed this decision to the Court of Appeal.
The Court of Appeal Decision
The Court of Appeal confirmed that the Adjudicator had power to award interest pursuant to its general powers conferred under the National Health Service Act 2006. It was held that the Adjudicator had incorrectly acted on the basis that they had no power to award interest.
The Court of Appeal held that the dispute should be remitted to the Adjudicator to decide whether interest should be awarded.
What Does This Mean for Primary Care Providers?
This case clarifies the position that adjudicators acting under NHS Resolution to resolve disputes under NHS contracts do have the power to award interest where it is appropriate to do so. This is important for primary care providers seeking adequate compensation in relation to underpayments. In this case, interest of almost £150k was claimed.
When submitting a referral to NHS Resolution, primary care providers should ensure that they include a properly pleaded claim for interest to maximise their chances of an interest award.