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NHS England wins legal case impacting new care model contracts

A judge has ruled against claims that NHS England’s plans to bring local health and social care services under one contract are ‘unlawful’.

The claims came from a campaign group, which brought a judicial review against NHS England’s plans to implement ‘accountable care organisations’ (ACO) to the High Court in Leeds last year.

The campaign group, 999 Call for the NHS, took issue with how the organisations would be paid through a ‘whole population annual payment’ (WPAP), which would see an ACO paid based on the number of patients in the area.

The judgement, handed down by the Hon Mr Justice Kerr, said: ‘The claimant seeks a declaration that the WPAP set out in the ACO contract would, if included in an NHS commissioning contract, be unlawful and that the legislation does not permit such a payment mechanism.’

It added that the campaign group ‘also seeks an order quashing the decision to publish the ACO contract’.

The judgement said the objections are ‘broadly on the ground that it abandons the concept of payment by results and reverts to the concept of a block contracting arrangement’.

However, the judge found the payment method to be in keeping with the Health and Social Care Act 2012.

He said: ‘Finally, the claimant complains that the WPAP imposes budgetary control at the expense of not being “demand led”: the ACO does not know how many hip replacements it will have to fund from its fixed budget.’

He added: ‘The WPAP can be judged in the political arena but this court does not find anything unlawful in its use as the law stands.’

This is the first of two judicial reviews into the controversial draft ACO contract, which is an updated ‘voluntary contract’ that could force GPs to give up their patients should they decide to leave.

The second, led by four senior health professionals, will be heard on next week at the Royal Courts of Justice in the Strand in London over two days.

Steven Carne, a spokesperson for the campaign team, said: ‘We are not satisfied with the Judge’s ruling, which we think is seriously flawed.’ 

‘We now have 21 days to prepare an appeal and will be working with our legal team to investigate this option.’

An NHS England spokesperson said: ‘This important ruling speaks for itself.’