A recent NHS Resolution determination includes helpful confirmation that, if NHS England is satisfied that a partnership which holds a GDS contract has changed composition, it must issue a contract variation to reflect the change. 

Factual Background

The key facts of this case were as follows:

  • The GDS contract was held by partnership of 3 dentists.
  • One partner was expelled from the partnership, pursuant to the terms of a partnership agreement.
  • The two remaining partners wrote to NHS England, requesting that it issue a contract variation to document the new partnership composition (i.e. remove the expelled partner's name).
  • NHS England refused to issue a contract variation on the basis of its concerns about the contractor’s underperformance of UDA. NHS England stated that it did not believe that the GDS contract should be 'transferred' to the remaining partners in the absence of a proper plan, demonstrating how adequate contract performance would be delivered in future.

NHS Resolution's Decision

NHS Resolution agreed with the GDS contractor's arguments as follows:

  • NHS England's concerns about underperformance have no bearing on its decision as to whether it should update the contract.
  • The contract holder is the partnership "as it is constituted from time to time, rather than the individual partners of that partnership." It concluded the following:
    • "The identity of the members of the partnership of the Contractor from time to time is a matter of fact and the update to the GDS Contract requested by the Contractor is to reflect any change to the constitution of the partnership of the Contractor. It does not relate to or impact the parties to the GDS Contract or the performance of the Contractor under the GDS Contract."
    • "The Contractor is a partnership constituting two or more partners practising in partnership. In accordance with paragraph 6.6 of the Policy Book for Primary Dental Services, if NHSE is satisfied that the composition of the partnership has changed by a partner leaving (but without the partnership terminating), the contract will need to be amended to recognise the new partnership composition."

What to Take Away?

Do consider challenging NHS England when you think its decision making is flawed. Despite clear wording in the GDS contract itself and NHS England's own policy book, NHS England considered the wrong grounds when responding to this contractor's request. The only relevant consideration for NHS England when responding to such a request is as follows: has the composition of the partnership changed?

While this case involved a referral to NHS Resolution, such a step is not always necessary. Challenges to NHS England's decision making can often be resolved via dialogue and negotiation.