Relief, vindication and survival.
These three words are perhaps the best summation of the recent outcome of a lengthy and complex legal challenge involving five GP practices backed by the BMA, and NHSPS (NHS Property Services) – the body responsible for managing and maintaining NHS properties in England.
The case, which concerned a long-running dispute on the basis upon which NHSPS was levying charges for services to the practices as well as the amounts it was demanding, had been hanging over the practices for the last few years.
Coinciding with the enormous stress and challenges of the pandemic, the legal challenge saw NHSPS bring a counterclaim against the five practices in which they demanded payment of historical service charge claims amounting to hundreds of thousands of pounds and threatening the very existence of some of the practices.
Ultimately, however, NHSPS was unable to provide sufficient evidence to verify all of the charges it was seeking to recover, with the result that it drastically revised the sums being claimed, with one practice seeing more than 80 per cent, over £400,000, reduced of the total amount NHSPS was claiming.
While the judge presiding in the case has emphasised the outcome does not form a legal precedent, the enormity of the final settlement cannot be understated for the practices involved.
‘It’s been such a relief to know years of stress and frustration are now finally over,’ remarks one practice member who wishes to remain anonymous.
‘If we had paid what we were being asked to by NHSPS, then our practice would not have survived, which would have impacted thousands of patients. We couldn’t have done this without the BMA’s support and the lawyers who assisted us on their behalf.’
Set up in 2011 under the provisions of the impending 2012 Health and Social Care Act, NHSPS is a limited company wholly owned by the Department of Health and Social Care, with Secretary of State for health as its sole shareholder.
Its purpose was to take on the ownership and maintenance of almost 4,000 NHS properties, including GP practices, following the abolition of primary care trusts , the bodies previously responsible for this role.
After NHSPS published its consolidated charging policy in 2016, many GP practices found themselves facing steeply inflated bills for rent and other services, despite the fact they possessed existing contractual terms pre-dating the charging policy and or NHSPS.
Indeed, the soaring cost of NHSPS's charges onwards has been challenging, and we are hearing of practices facing serious financial burdens, and even having to consider whether they will be forced to hand back their general medical services contract and shut their doors to patients.
Criticism of the remit and function of NHSPS and how it levied charges for rent and services were apparent even before the BMA’s legal challenge, with a 2019 report of the Parliamentary Public Accounts Committee describing NHSPS as an organisation ‘created with a muddled objective’ and one that was ultimately ‘set up to fail’.
The same report noted around half of the debt owed to NHSPS, which in March 2019 stood at £576m, was under review, with tenants having challenged bills on the grounds they were ‘based on inaccurate information or inappropriate apportionment of costs’.
While the settlement between NHSPS and the practices represented by the BMA has resulted in varying reductions in the cost of claims, three of the five have each seen reductions of more than 50 per cent of the original sums being sought, with one practice seeing a reduction of more than 80%.
BMA GPs committee premises lead Gaurav Gupta has been involved in the case and the fate of the five practices at the heart of it, from the very beginning.
Speaking of his enormous relief at the outcome, Dr Gupta says it remains vital other GP practices concerned they may have been inaccurately charged in their rental and service bills, raise the matter with NHSPS in the first instance, and consult the BMA if they feel they require further guidance or support.
He says: ‘I am delighted that, with support from the BMA, these five practices have been able to achieve long-awaited reductions to their NHSPS service charge claims.
‘This is a ground-breaking lawsuit, and these settlements vindicate the practices' assertion that, for years, NHSPS has been claiming unduly high levels of service charges without sufficient reason or justification.
‘This outcome should give hope of a fair resolution to the other NHSPS tenants struggling with rising service charges and resulting disputes.’