NHS England has published its new “Mid-year and year-end reconciliation and financial recovery policy”.
My thanks to Alexander Hall from Meade King LLP for sharing this.
At paragraph 28 under the sub-heading “Transitional arrangements 2013/14 only” it has confirmed:
“As this is the first year of the policy it has been agreed that there will be transitional arrangements in place for 2013/14 only. This will allow contractors to become familiar with the new arrangements and ensure that no one is disadvantaged or businesses destabilised.”
The policy goes on to confirm at paragraph 29 that in 2013/14 “No breach notices will be issued for under-delivery”, though it does confirm that despite that, it will “financially recover all monies to 100% where a contractor has delivered less than 96% of the contractual UDAs”.
This is an enlightened approach and a national published formal stance that should be kept in mind.
It is clear already that not all Area Teams are enforcing the new policies consistently or at all in some cases, so it would not be unexpected for some to receive a breach notice in breach of the policy. For those who do, there is a good argument that the notice should be withdrawn.
Paragraph 30 onwards discusses the policy from 2014/15 and speaks of “re-basing” or contract reduction. The fact that it is not mentioned in the transitional year paragraph suggests implicitly that re-basing will not be considered this year either (or it could certainly be argued that way).
It is also of note that NHS England seems to recognise that the service of breach notices can disadvantage or destabilise businesses. Certainly it can introduce uncertainty and cause certain specific problems for those who are trying to sell their practices. If destabilisation is a risk, perhaps this may be used in the future to convince NHS England not to serve a notice (carefully avoiding the suggestion that the practice may fall into financial danger entitling NHS England to consider termination so as to protect its financial interests).
The policy can be found at the NHS England website.
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