Practices operated by NHS Property Services have been given a boost after the organisation ‘conceded’ that its national charging policy – which attempted to apply uniform high service charges – was not contractual.
Updating GP members on the ongoing legal case against the NHS landlord, the BMA said it was now pushing ahead with applying to the High Court in order to stop the ‘dramatic increases’ in service charges.
The BMA first launched the legal case in January of this year, as a ‘test case’ on behalf of five GP practices who have received demands from NHSPS to pay ‘inflated’ service charges based on the its 2017/18 national charging policy.
NHSPS has implemented the charges retroactively, leading to huge bills for some practices.
It also said that the BMA has ‘misrepresented’ its position, a claim the BMA disputes.
Pulse has long documented disputes over premises service charges since reporting in 2016 that several practices saw their fees hiked by up to 400%, while more recently a practice had its service charge triple to over £100,000 in four years.
Pulse also revealed that a GP practice had been asked by NHSPS to pay half a million pounds in service charges for ‘non-existent’ services.
However, the latest update from the BMA revealed that NHSPS had conceded that its new charging policy does not affect their individual contracts with practices and therefore cannot be used in defence of cost hikes.
A spokesperson for the BMA explained that the ‘Consolidated Charging Policy 2017-18’ from NHSPS ‘is a national policy document that has been relied on by NHSPS to demand dramatic increases service charges from GP practices’.
The BMA has argued that NHSPS cannot increase service charges unless the increase is permitted under the agreed tenancy.
The spokesperson said: ‘The legal proceedings were launched to obtain declarations from the High Court that the consolidated charging policy did not change the terms of the tenancies of the five practices. In their defence to the claims NHSPS has now, finally, conceded that it does not.’
In an update to GPs, GPC England premises policy lead Dr Gaurav Gupta said NHSPS made the concession in evidence it has filed to the court in defence to the BMA’s legal claim in June this year.
He wrote that the evidence has seen NHSPS ‘belatedly conceding that the Charging Policy did not vary the existing leases and the service charges claimed were not due because of the Charging Policy, and stating that they do not dispute what the GPC and the BMA have said about the Charging Policy all along’.
As a result, the five practices in the test case are now being supported by the BMA in ‘applying to the High Court to ask that it upholds their claims against NHSPS and issues declarations that the Charging Policy does not form part of their tenancies’.
He added that while a judgment in favour of the practices would not automatically apply to other GP practices beyond the five, it would be ‘highly persuasive evidence that other GP practices in similar circumstances would be able to rely on to defend themselves against their landlord’.
Dr Gupta went on to remind GPs that BMA advice remains that practices should only make payments ‘if they agree with the legal basis on which NHSPS have claimed the charges are due and agree they are accurate’.
‘NHSPS has now agreed that the charging policy does not automatically form part of every tenancy and will not have any legal status without prior agreement by the GP practice in each case. If NHSPS relies on the Charging Policy as part of the tenancy agreement it must explain the basis for this, he added.
However, despite the admission, NHSPS has decided to counterclaim against the five practices to recover what it claims are outstanding services charges.
Dr Gupta told Pulse: ‘We look forward to the High Court making a ruling on this so that other practices in similar circumstances will be on stronger ground to dispute unreasonable demands from NHSPS.
‘However, we are appalled that NHSPS has decided to launch counterclaims against the five practices for outstanding charges – in the midst of a pandemic and when GPs and their teams are going above and beyond to ensure high quality of care to their local communities – and the BMA will continue to support them in disputing this highly unfair situation.’
An NHS Property Services spokesperson said: ‘NHS Property Services does not wish to comment in detail on ongoing legal proceedings, however it is important to note that our views and legal position are being misrepresented in the BMA’s recent update to members.
‘We do however welcome the change in stance from the BMA that it is now content to discuss claims outside of court through a suitable dispute resolution. This was a measure NHSPS offered in Summer 2019 and discussed with the BMA but which the BMA declined to pursue, choosing instead to support the claimants legal action against NHSPS.
‘Throughout this process we have proactively tried to engage with the BMA and we remain committed to working together constructively on this.’
A BMA spokesperson said: ‘The BMA stands by its recent update to members, and has always been committed to resolve this issue outside of court.’
Pulse understands that NHSPS does not dispute the particular point highlighted by the BMA but that this is just one aspect of the wider legal case.
At the end of last year, the Public Accounts Committee report found that NHSPS was ‘set up to fail’ due to a lack of powers and inherited long-standing issues.
