NHSPS service charges test case judgment – What does it mean for GP practices?
The long running saga of the 5 NHSPS ‘test cases’ regarding service charges has reached a conclusion. The case has been much hyped by all parties, to the extent that it was named as one of the ‘top 20 litigation cases of 2022’ by one excited journalist. Many practices in NHSPS buildings have been waiting for the outcome of the case, in the hope that it would lead to a resolution of their problems with disputed service charges. In the event, the case has proved less useful than many had hoped. The judge has made clear that he does not consider it to be a test case, and that each dispute will turn on its own facts. In essence, the judge concluded that a tenancy is a contract, and that each practice is therefore bound by the particular agreed or implied terms of their occupation. What is perhaps most surprising, is that this outcome should come as a surprise to anyone.
This rather complicated litigation started when the BMA sought to bring an action on behalf of 5 practices who were tenants in various NHSPS properties, asking the Court to confirm that certain standard policies operated by NHSPS to calculate service charges had not been incorporated into the terms of the tenancies. The court refused to make a declaration to this effect, but NHSPS admitted that they could not simply change the terms of a tenancy to include the policies and a ‘victory’ of sorts was declared. This was however short-lived as NHSPS took the opportunity to countersue the 5 practices for arrears of service charges. It is this counterclaim which has now been determined. NHSPS was seeking over £1m in overdue service charges from the 5 ‘test case’ practices and claims that it is, in total, owed over £175m by its GP tenants. It is clear that very significant sums are at stake.
The facts of each of the 5 tenancies are subtly different, which was undoubtedly why they were chosen for the BMA as a ‘test case’. The main thing they have in common is a general lack of documentation and rigour around any of the normal legal processes. As a result the judge had to untangle a complex web of poorly documented issues relating to each building, including: What demise does the practice actually occupy now and in the past? Which partners have been/are tenants and are therefore liable? What are the terms of occupation? What services have been, and should have been, provided by NHSPS? To what extent did payments made represent an ‘all-inclusive rent’? Were service charges capped or in some other way limited by agreement, including by historic agreement with a PCT? Are any of the claims time-barred?
Probably the most important message from the judgement is that as an ordinary landlord, NHSPS has the right to recover a reasonable service charge for the services which it delivers. None of the practices were able to successfully argue that they should be receiving discounted or free services from their landlord, or that their rent was somehow ‘all-inclusive’. That is not to say that other practices cannot succeed with such an argument, but it would require solid evidence that such an agreement existed rather than simply relying on an absence of evidence. In the words of the judgment: “the law, where appropriate, has to step in and fill the gaps in a way which is sensible and reasonable. The law will imply, from what was agreed and all the surrounding circumstances, the terms the parties are to be taken to have intended to apply”.
The judgment did not determine how much of the £1m claimed from the 5 ‘test cases’ was actually recoverable, but it did set out the parameters by which the amount payable should be calculated. It is thus clear that the 5 practices have a significant service charge liability to NHSPS. However the judge went out of his way to make clear this cannot be seen as a precedent for other practices:
“There has been some reference to these five actions as test cases for other disputes over service charges which may arise between the Defendant and other GP practices. While I express the hope that this judgment will assist the Defendant and other GP practices in resolving disputes over services charges without the need for expensive litigation, I would be wary of classifying these five actions as test cases. As this lengthy judgment demonstrates, and as I have already said in this judgment, the resolution of a service charge dispute in any particular case essentially depends upon the evidence and arguments in that case. This is one of the principal reasons why, for reasons which I have endeavoured to explain in making my decision on whether the Charging Policy Declarations should be made, I do not think that it is sensible for any GP practice to adopt what I would describe as a policy of non-engagement; by which I mean refusing to pay service charges pending explanation of the position by the Defendant. As I have said, it seems to me that a more constructive approach would be for GP practices to take their own advice on the position, and to put their particular case to the Defendant on what is and is not recoverable by way of service charges.”
What, therefore, should practices facing NHSPS service charge disputes do now?
1) Don’t ignore the problem as it is very unlikely to just ‘go away’. Having now proven that there is no blanket ‘NHS exemption’ to paying service charges, it would be surprising if NHSPS simply wrote off the £175m it believes it is owed.
2) You should be paying a reasonable amount for the services that you receive from NHSPS, unless you can clearly demonstrate an agreement to pay less. You should accrue accordingly and pay non disputed charges.
3) If you do not agree with a service charge demand, you should challenge it in writing and explain why you believe it is incorrect. For example, why should you pay for a gardener when there is no garden, for a window cleaner who never turns up, or ‘above the going rate’ for a plumber?
4) Gather as much documentation as you can and store it safely. Since any documentation gaps can be filled by the courts, you want to have as much evidence to hand as possible.
5) Make sure your Partnership Deed is clear about what happens when partners join and leave. Your liabilities to the landlord do not automatically cease when retiring from the partnership unless the lease is assigned (which is difficult if the tenancy is undocumented), so retirees will want indemnities from the continuing partners. Likewise incoming partners will want certainty that they will not be liable for charges relating to the period before they joined, and that a suitable retention is in place for disputed charges.
6) Engage with NHSPS to get your situation ‘regularised’. For most practices this will mean that it makes sense to get a lease agreed, but this should be done in tandem with sorting out disputed historic service charges. It is in everyone’s interest to avoid further expensive litigation, so there will be deals to be done.
7) Most importantly, seek specialist advice. When it comes to buildings, no two buildings and (thus no two leases) are the same. If you start negotiating without proper legal advice, you risk giving away important legal rights without securing anything in return. The most likely outcome for all practices now is a negotiated settlement with NHSPS, but this will be very difficult unless you understand the strength of your negotiating position. With so much money at stake, skimping on advice is likely to prove a false economy.
At DR Solicitors we have very deep experience and success acting for GP tenants who are in dispute with their NHSPS landlord. We understand the issues, and the areas where negotiation is likely to prove most fruitful. Our new partnership deed also addresses these NHSPS issues. Please contact Daphne Robertson or Sue Carter on 01483 511555 for a free initial conversation about your NHSPS surgery issues.
News
Data Protection Officers – what’s the risk?
Every GP Practice in England and Wales should have a designated Data Protection Officer (‘DPO’) who is key to the practice being able to comply with its UK General Data Protection Regulation 2016 (‘GDPR’) duties. Unfortunately, there is a lack of understanding about the importance of the DPO role, resulting in partners and separately, the DPO, taking on potentially significant regulatory and financial liability. In many practices, the DPO is seen as a secondary function that a partner, practice manager, or relatively junior member of staff can undertake in addition to their normal duties. In this blog, our data and information security solicitor, David Sinclair, identifies some of the key risks and some steps you can take to avoid them.
The role of the DPO
A DPO has significant, statutory data protection responsibilities that require them to possess requisite professional qualities and other abilities (not defined in the legislation), together with an ‘expert knowledge of data protection law and practices’. Given the complexity and ever-changing nature of UK data protection law, this is a significant burden to impose on any professional – even one with considerable information governance experience.
Partner liability
Unless otherwise expressly set out in the partnership agreement, partners are jointly and severally liable for GDPR compliance, including for formally appointing and adequately supporting a competent DPO, and for filing the DPO appointment with the ICO.
Partners bear the full statutory responsibility of ensuring that the DPO (whether a staff member or third party) has the experience, skills and knowledge to fulfil their DPO duties, as well as the required ongoing training, support and resources to enable them to carry out their role.
DPO liability
A DPO carries significant liability if a GDPR breach is attributed in whole or in part to a failure on their part to properly undertake their DPO duties. This is the case even when it can be shown that they perhaps did not have the necessary experience for the role and/or were not provided with adequate training to understand the GDPR’s requirements (many of which are poorly defined and open to interpretation), unless the DPO can demonstrate that they raised these issues with the practice at the earliest opportunity.
A common misconception among DPOs is that they have immunity from prosecution, dismissal, or other disciplinary action by virtue of their status as a DPO. This is not the case.
Article 38 of the GDPR provides DPOs with limited protection from dismissal or other penalty relating purely to the performance of their DPO tasks. In addition, DPOs cannot be personally liable for the partnership’s non-compliance with the GDPR, which remains with the partners.
Data protection law does not, however, protect DPOs who fail to undertake their statutory role or who do so negligently, eg by them failing to advise the partners, or them giving inaccurate advice, particularly where this is due to the DPO’s lack of competence and they failed to raise that with the practice.
Further, the GDPR does not prevent partners disciplining DPO employees (up to and including dismissal) under the terms of their employment contract, or from partners seeking to recover damages (in breach of contract and/or negligence) from external DPOs, whose failure to undertake their role results in a breach of data protection law.
Conclusion
So how can you minimise your liabilities?
Partners should undertake due diligence on a DPO’s competence and suitability to undertake their role. The practice must also provide the DPO with the resources and support they need to carry out their duties. We strongly advise partners to review their DPO appointment on a regular basis.
Existing DPOs and those considering taking on the role should give thought to whether they have the required training, experience, skills and knowledge to undertake the role. Particular consideration should be given to whether they can advise the practice competently and confidently on complex GDPR issues. Individuals who have doubts about their competence in this area should raise this with a partner as a priority.
For more information about GDPR, the role of the DPO or on information governance issues generally, please contact David Sinclair on 01483 511555 or by email to d.sinclair@drsolicitors.com.
News
Podcast: Nils Christiansen on the minefield of PCN incorporation
With workload becoming ever more complex and demand continuing to grow for general practice services, many PCNs are looking at incorporation as a solution to running a safe and sustainable structure going forwards. Produced by Ockham Healthcare, Nils Christiansen presents a short podcast offering practical advice on safeguarding and streamlining the PCN as a business entity.
News
GP Partnerships: So who do you think you are? Are you a self-employed Partner or are you an Employee?
Most GP practices continue to be organised as partnerships: an ‘independent contractor’ status which has outlived innumerable changes in the NHS. The ‘golden hello’ new to partnership scheme has attracted over 1,300 applicants over the last year, demonstrating that there are still plenty of people who aspire to becoming a partner in a GP practice. However, in an effort to keep up with the fast changing environment and to appeal to a broader range of partner candidates, many GP partnerships are looking at ways of flexing the traditional partner role, to the benefit of all concerned.
In this blog, we look at the 3 main types of partner we regularly encounter in GP practices.
1. Equity Partner (self-employed)
This is the most traditional partner model. Equity Partners are self-employed and have full and equal rights to decision making and are part of a collective management team which is jointly responsible for all aspects of running the practice. Profits and losses are shared equally, although sometimes there is a ‘path to parity’ over a period of a few years. With the rise of part-time working, a common variant is to share the profits and losses on the basis of planned sessions. Equity Partners are expected to contribute capital to the business (as a minimum working capital, but sometimes also property or other capital) which is usually called ‘buying in’. An Equity Partner is jointly and severally responsible for any losses and liabilities that arise in the partnership. This means that creditors can choose to pursue one or all of the partners for the full amount of the partnership debts.
2. Fixed Share Partner (self-employed)
Fixed Share Partners are also self-employed. A Fixed Share Partner typically receives a fixed, guaranteed income for a defined period of time (sometimes during a mutual assessment period) and there should also be an element of variable income based on the profits or losses of the practice. The ‘golden hello’ scheme does not apply to Fixed Share Partners where the fixed share period extends beyond the expiry of any mutual assessment period. Fixed Share Partners still share full liability alongside the Equity Partners so they ought to be suitably indemnified by the Equity Partners in the partnership deed. Fixed Share Partnership arrangements need to be carefully documented to avoid HMRC viewing the tax status of the person as an employee.
3. Salaried Partner (employed)
Salaried Partner and Fixed Share Partner are often (incorrectly) used interchangeably. The key to this person’s status is in the word ‘salary’. Whereas partners take drawings on account of their profit share, Salaried Partners are employees who receive a salary. Salaried Partners should have an employment contract, they benefit from the protection of all relevant employment legislation and they receive a salary with tax and NI deducted at source under PAYE. Salaried Partners may have an element of ‘bonus’ depending on the profitability of the practice and this will be documented in their employment contract. Salaried Partners will not be a party to the partnership deed and they should have no share in the partnership profits and no voting rights. For a Salaried Partner, the word ‘partner’ is just a title and nothing more so they need to be suitably indemnified by the Equity Partners in their employment contract.
A word of warning…
Third parties can bring a claim against anyone who calls themselves a partner, be they an Equity, Fixed Share or Salaried Partner. So behind the scenes, Fixed Share and Salaried Partners are usually protected by way of an indemnity from the Equity Partners. An indemnity is a promise from the Equity Partners to financially compensate the Fixed Share or Salaried Partner in the event of a loss or liability arising. However, the indemnity will not be worth the paper it is written on unless the Equity Partners are good for the money.
Conclusion
If you are a GP practice or a partner or you are thinking about partnership and you want clarification on this blog or any other matter relating to primary care, then it’s time to contact us. Please call us on 01483 511555 or send an email to info@drsolicitors.com
News
Protecting yourself & your business: getting ready for VCOD2
At the time of writing this article, the Government looks poised to delay the controversial new legislation known as ‘vaccination as a condition of deployment’ (or ‘VCOD2’) which will make Covid vaccines mandatory for NHS workers in England. The debates for and against the new laws continue to be heard, but even if the mandate is delayed, it will mean those working in the NHS will be facing the same dilemma this summer as they would otherwise face now: comply with the mandate or face dismissal.
As things currently stand, in order for a person to have received two doses of the Covid vaccine by the 31 March 2022, they will have to have had their first dose by 3 February. This is likely to account for the large number of enquiries we have seen pouring in from GP practices, seeking advice on their position.
In this article, we look at what the new law means for Practices and their employees.
What if an employee refuses to be vaccinated?
If VCOD2 goes ahead as planned, then an employee refusing to be vaccinated could face dismissal under the definition of ‘Some Other Substantial Reason’ or ‘SOSR’. An employer intending to rely on SOSR to dismiss an employee is advised to follow a fair procedure, which may include discussing the employee’s concerns about vaccination with them, and taking steps to find alternative work for an affected employee.
Some employers will argue that the obligation to follow a fair procedure is not necessary, because in all likelihood, in light of the mandate and the limited opportunities for re-deployment within GP Practices, doing so is unlikely to make a difference to the outcome. If this argument were to be successful, it could lead to any award for unfair dismissal being substantially reduced.
Redeployment
Many Practices will struggle to find space in their current premises to ensure separation of an affected employee. Potential for redeployment and in particular, selection for alternative work is an aspect of the dismissal process where disputes are likely to arise. If you are an employer dismissing several unvaccinated staff but have identified just one alternative position, you may need to take advice on how you choose which employee to save from dismissal and redeploy.
New policies, pre-employment checks and contracts
If vaccination status is to be a permanent pre-condition to NHS employment, all employers will need to develop policies to reflect the new law. Safe systems to ensure validity of proving vaccination status will need to be put in place and pre-employment checks and checks on locums and contractors will also be essential.
Redundancy
NHS England has made clear that employers must not treat VCOD2 dismissals as redundancies; the consequence being that dismissed staff will not be eligible for any redundancy pay.
Legal claims
The controversy and perceived unfairness by many of VCOD2 dismissals, suggests that dismissed staff are unlikely to go quietly. Class actions may even follow. Although compensation for unfairness will be limited (if awarded at all), we predict claims will be issued and employers will face the unwanted repercussions of this, in terms of time and money spent and reputational impact.
Keeping pace with change
Unlike other preconditions to employment, what constitutes “fully vaccinated” is a moving target. It is unclear how the Government intends to deal with this, save for the fact that Ministers have recently said that the booster is being considered as an additional precondition. How will employers deal with the state of flux in their contractual documentations and policies?
Impact on staffing and recruitment
VCOD2 dismissals will leave significant gaps in staffing across an already stretched NHS. Any dismissals will have a knock-on effect on the remaining workforce with employees being forced to take on additional responsibilities and work longer hours. Further pressure on NHS staff will be seen by most as unreasonably burdensome and the impact on staff retention and recruitment could be dramatic.
Morale and support
How can employers and employees keep buoyant and continue to feel supported at this time? For many, VCOD2 could see long serving members of staff leave NHS service in a matter of weeks, whilst those that remain must continue to provide high levels of care in what is the most demanding and uncertain of environments.
Conclusion
Whilst many questions remain unanswered, our view is that whether the VCOD2 comes into force in two months or later this year, the time for employers to develop workforce strategies to cope with the change and to inform and consult with affected staff is now.
We can advise GP Practices and PCNs on how to engage with staff, the potential redeployment of staff, as well as advising on staff handbooks and Partnership Deeds. Please contact Daphne Robertson for a free initial consultation: d.robertson@drsolicitors.com or telephone 01483 511555.
News
Fixing the Fixed-Term Employment Contract
Use of fixed term contracts in primary care can be beneficial to both the employee and the employer, but should be used with caution. Read on to learn about some of the key risks and how to avoid falling foul of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (the “Regulations”).
If you are an employee, a fixed-term employment contract offers some benefits, such as a degree of flexibility and the ability to test out working in a new specialism or location.
As an employer, a fixed-term is the ideal solution if a role is established to carry out a temporary or time limited project; where a role requires specialist high-level skills to achieve a certain objective; where there is limited funding available or to cover for sick leave or secondment.
The Regulations are in place to protect an employee’s rights but are frequently overlooked in the busy world of primary care. Some of the issues are explored below.
Less favourable treatment
An employee on a fixed term contract has the same general employment rights as a permanent employee, such as protection against discrimination. In addition, the Regulations protect fixed-term employees from being treated less favourably than permanent staff working for the same employer, unless there is objective justification for the treatment. Employees on fixed-term contracts have a right under the Regulations not to be treated less favourably than comparable permanent employees in relation to:
- terms and conditions of employment
- training, promotions or transfers
- permanent positions within the organisation (employees on fixed-term contracts must be informed of any permanent vacancies that arise)
If an employee believes that they have been treated less favourably than a permanent employee, they can request a written statement from the employer to explain the reasons for the less favourable treatment. The employer must respond to the request within 21 days.
Ending the contract before or after the term
There is no legal requirement to include a notice clause in a fixed-term contract, but it is usually advisable to have one as it allows each party the chance to end the relationship before the expiry date should it be necessary to do so.
If there is no notice period in the contract and one party wishes to end the contract early, the other party may be able to claim damages to cover any losses for the balance of the contract period.
If a fixed term contract is left to run over, then each party will be required to give notice in order to end the employment. The contract will no longer end on the expiry of the fixed term because that moment has passed. Often, the need to serve notice was not envisaged when the contract was entered into, so the question of how long the notice period should be can become the subject of dispute.
Repeated renewals and conversion to permanent employment
You should be aware of the four year rule. A fixed term employee will be considered a permanent employee if they have completed 4 years’ continuous service under one or more fixed term contracts, unless the employer can justify the continued fixed-term status, which is not easy to establish.
If an employee believes that they have become a permanent employee on this four-year basis, they are entitled to ask the employer to confirm in writing that their contract is permanent and no longer fixed-term. The employer must respond within 21 days of such request or, if it does not agree, then it must justify and give reasons as to why it believes that the employment is still for a fixed-term.
Fairness of ending a fixed-term contract
In law, the expiry of a fixed term contract without its renewal is regarded as a dismissal. If an employee has two years continuous service, they will be entitled to claim unfair dismissal if their contract is not renewed. The employer will need to demonstrate that there is a genuinely fair reason for the non-renewal (and there may be redundancy rights to consider) and that a fair process was been followed. It is important that the employer consults with the employee in good time before the expiry of the contract, so the likely impact of the non-renewal of the contract can be properly explored and other potential job opportunities considered.
Need advice?
At DR Solicitors, we specialise in all aspects of primary care, including employment advice and dispute resolution. Please contact us for an initial free consultation by calling 01483 511555 or email info@drsolicitors.com
News
What makes a surgery lease different from an ordinary commercial lease
In this short v-Blog Daphne Robertson of DR Solicitors and Paula Mace of Aitchison Raffety surveyors share their expertise in primary care estates, and discuss why a GP surgery lease is very different to any other commercial lease. Produced specifically for GP practices, they identify the key considerations you need to be aware of when negotiating your surgery lease.
Watch this vBlog to understand how they are different.
News
GP Federations and PCNs: Can they co-exist?
Some GP Federations and PCNs are working well together, some are in conflict, and others have nothing to do with each other. Why are there such marked differences around the country?
PCNs and GP Federations were both established as ways for Primary Care to work at scale. GP Federations were often ‘encouraged’ to form by dangling the carrot of CCG wide contracts – usually APMS contracts for extended access. The payment for delivering those contracts flows directly to the GP Federation, which has its own management structure and P&L. This has encouraged some practices to see Federations as arms-length service providers that have little or no relevance to the day to day running of their practice, regardless of how well or poorly the Federation delivers its service contracts.
PCNs, by contrast, do not generally have service contracts of their own and are normally much smaller than a CCG. They derive their funding from the PCN DES which is simply an extension of the GMS/PMS/APMS contracts of each of the core member practices – albeit held in a shared bank account. As a result, surpluses and deficits in the PCN translate directly into profits and losses in member practices, and a poorly run PCN would have a direct financial and regulatory impact on its members.
Whilst they have the same underlying member practices, most GP federations are also much larger than PCNs. PCNs comprise member practices with total list sizes of about 50,000, whilst the average GP Federation comprises members with total list sizes in excess of 200,000.
Prime contractor vs sub-contractor
Because Federations had their own service contracts from the outset, they needed to be independent companies. These companies were set up with their own management which was responsible for deciding how to deliver the contracted services. Whilst many Federations decide to deliver their contracts in collaboration with their member practices, it is clear that the practices are sub-contractors providing staff and resources to the Federation.
By contrast, because PCNs receive their funding directly from NHS England, if they choose to work with a Federation it is the Federation which becomes the sub-contractor providing staff and services to the PCN. The difference is crucial because the prime contractor always chooses the sub-contractor and ‘sets the rules’, not vice versa.
Culture
As control of contracts moves from federations to PCNs, the role of culture becomes important. A prime contractor’s job is to ‘manage’ the sub-contractor as the prime contractor is ultimately responsible for delivery. As a result, Federations often needed to create a culture of ‘managing’ member practices. For PCN DES delivery it is the practices themselves who are the prime contractors, so they need to manage the sub-contractor GP Federation and not vice versa. This can get even more complicated when the Federation continues to have its own contracts which it subcontracts to GP practices, as the management and control then needs to go both ways. In our experience this role reversal can create a major cultural challenge as the practices and the Federation get used to their new roles and responsibilities.
A Shared Service Centre Mindset
At root, the PCN DES encourages member practices to share resources. This is not uncommon in business and is often called a ‘shared service centre’. Member practices obviously share ARRS resources, but there is no particular reason why they should not share other functions as well. This is where a Federation can really add value to PCNs. Shared service centres benefit from scale economies, so they often work better if they are larger – which Federations are. Federations can therefore develop to offer a menu of services to PCNs, and can perhaps provide these services more cost effectively than PCNs themselves because of the scale economies. This does however require that the Federation mindset changes from one of controlling work allocation to being a provider of high quality, well managed services to PCN member practices. This change in mindset will often also require a change in the governance model and the ownership model of the Federation to more closely align it to the PCNs it serves.
Conclusion
With CCGs disappearing into ICSs and extended access funding moving to PCNs, the original purpose of Federations is fast disappearing. Some Federations have other contracts providing them with an income, but these may also be under threat as ICSs consider commissioning at an even greater scale than CCGs. This leaves many Federations with a choice of either ‘scaling up’ to ICS size and remaining as a prime contractor, or ‘scaling down’ and becoming a sub-contractor to PCNs. It may be possible for a Federation to do both, but it should then recognise that there is a fundamental difference between these two roles which may be difficult to manage.
Many Federations are recognizing that this is a strategic decision they are going to have to make very soon. It is perfectly possible for PCNs and Federations to happily co-exist, but to do so many Federations are finding that they have to change their operating model.
We have worked with many PCNs and Federations to improve their joint working arrangements, and have deep experience of what works, and what does not. For more information please contact Nils Christiansen on 01483 511555 or email n.christiansen@drsolicitors.com
News
Weaponising Data Subject Access Requests
If you find yourself in dispute with a partner or employee, then you may well find yourself in receipt of a Data Subject Access Request (DSAR). This is an increasingly common occurrence in civil and employment litigation and requires careful handling. In our experience many primary care practices do not have effective systems in place to deal with DSARs, which can then result in significant reputational damage and financial cost.
In this blog, we look at how and why DSARs are being used as a legal tactic in disputes, and how your Practice can minimise the risk of a claim arising out of one.
What is a DSAR?
The UK General Data Protection Regulation 2016 (‘GDPR’) provides data subjects with a right to access their personal data. Many practices do not realise that a DSAR can be made in any format, including orally, and can be made to anyone in the organisation.
The GDPR also provides data subjects with a statutory right to claim compensation from a provider where they have suffered material (eg medical bills, loss of wages) or non-material (eg distress, anxiety) damage. It has been established that non-material damage can include a data subject’s ‘loss of control over their personal data’.
Article 15 of the GDPR gives a data subject a further right to sue a data controller if they fail or partially fail to respond to a DSAR. ‘Fail’ includes responding late and/or not providing the mandatory information. Recent damages paid range from £750 for the ‘frustration’ felt by a data subject whose personal data had not been erased, to £18,000 awarded for distress following the inclusion of inaccurate personal data in a report.
Why are DSARs important?
DSARs, other than those held to be manifestly unreasonable or excessive, are a fundamental legal and human right that the Courts have held to be ‘purpose blind’. This has led to DSARs being used as a weapon by individual claimants and their solicitors to short-circuit the normal legal disclosure process. The hope is to pressurise a data controller into early and higher settlements by highlighting a breach and/or threatening civil action for compensation.
If poorly managed, DSARs can also result in claimants being given information to which they are not entitled, such as other people’s personal data, which would itself constitute a data breach. This then enables the claimant to increase the size of their own claim, and opens the possibility of further claims from new claimants. Unfortunately, the size of the likely awards means that some solicitors are prepared to act on DSARS and data breach claims on a no win/no fee basis, which simply encourages even more claimants to come forward. In this way a DSAR received on a small dispute can quickly snowball into multiple large claims against a practice.
Managing DSARs
Good DSARs management starts with processes and staff training. Since DSARs can be made to anyone in the practice, all staff must understand what to do if they receive one. This minimises the risk of a DSAR being overlooked. Practices should then have a single point of contact responsible for responding to DSARs, who is trained in the regulations and who has appropriate access to the relevant systems. They should also understand and manage the timelines for responding, and report directly to a responsible partner to enable quick decision-making. It would also be a good idea to know who you will approach in the event you need expert legal help.
Conclusion
The use of DSARs as a litigation weapon is increasing, as are the number and size of claims against data controllers. It is important that primary care practices have robust, formal procedures in place to ensure that:
- all staff can recognise a DSAR;
- all data search, collation, redaction and removal processes are GDPR compliant
- DPA exemptions are correctly applied;
- all non-disclosable information is withheld;
- any consents to disclosure are valid; and
- timeframes are strictly adhered to
Primary care providers who are uncertain about dealing with a DSAR should seek legal advice as soon as possible, particularly if there is a link to a known or potential litigation matter. If you would like more information about this or any other matter, please contact Nils Christiansen or David Sinclair on 01483 511555, email n.christiansen@drsolicitors.com
News
ARRS Chaos – How to avoid some of the ARRS employment traps
One of the underlying issues with ARRS resources is the challenge in deploying staff across multiple member practices. This sharing of resources cuts across the usual employment relationship where an employee works for a single employer, and across most employment laws and regulations which have a single employer arrangement in mind.
Because a PCN is a contractual construct (as opposed to a legal entity), it cannot employ staff in its own name. PCNs are therefore forced to come up with structuring and contractual workarounds to achieve the desired result.
These workarounds include:
- appointing a ‘lead practice’ to act as the employer;
- entering into a ‘joint employer’ arrangement;
- sub-contracting with a GP Federation or third party;
- incorporating the PCN.
The desired outcome is the same, namely a PCN resource who works across all the member practices, and where all the practices have the same or similar rights and obligations towards that member of staff.
Where to start? Identify the key responsibilities
The easiest way to achieve the desired outcome is to break down the various responsibilities associated with engaging staff, and agree which entity will perform it and how. Key responsibilities include:
- Recruitment responsibility
- Day to day management, eg scheduling & work allocation
- HR management, eg disciplinary and grievance procedures, annual review, agreeing pay and pay rises.
- Organising cover in the event of absence and deciding who will pay for it (ARRS does not currently reimburse this cost).
- Planning and paying for dismissal or redundancy
- Managing plans to restructure the PCN and deciding what should happen to the ARRS staff members
In a traditional employer/employee scenario, all of these responsibilities would sit with a single employer. By contrast, in a PCN the responsibilities can be shared amongst core network practices, or transferred, in whole or in part, to another organisation entirely. The answer will depend upon your structuring choices and could be any one of (1) to (4) above, but what is clear is that not all of the responsibilities need to reside in one place, indeed there may be differing optimal solutions for each different resource.
Case Studies
In our previous blog we gave some examples of resourcing problems that PCNs are encountering, and will now explore those further:
Q Who will cover my Clinical Pharmacist when they are on short term leave?
A Firstly, consider whether cover will be required for the duration of the staff member’s absence. This needs to be agreed between the practices, but full cover is more likely in the case of a clinical resource than a non-clinical one.
If cover is required, then who will provide and pay for the cover is a contractual question. Broadly, unless you’ve agreed amongst yourselves or with your supplier (in the event you’ve sub-contracted) that there will be cover, then the default position is there will be no cover.
If the employer is a lead practice, the answer should lie in your PCN Agreement or more likely, a Workforce Sharing Agreement.
If the employer is a GP Federation, Trust or similar, the answer should lie in the PCN sub-contract with that party.
Q My Occupational Therapist is under-performing and I want to move to an alternative provider – can I do so?
A This scenario clearly assumes that a third party is providing the occupational therapist. Subject to any termination provisions in the contract, you would normally be free to move to another supplier of services. However, if the occupational therapist is working exclusively for your PCN, then the switch may be a service provision change to which the TUPE Regulations will apply. The effect of this is that even if you were to move to another supplier, the under-performing occupational therapist is likely to automatically transfer to the new supplier and you could therefore still have the same person turning up for work.
In reality, this is likely to be resolved by discussion with the supplier and you will have to go through the contract management processes with that supplier. This will only be possible if you have a well drafted contract setting out the expected service levels and you are able to explain in what ways those service levels are not being met.
Q Who picks up liability in a redundancy situation?
A The answer to this is always the employer in the first instance. The employer may be able to recover the costs from the member practices but only if there is an agreement in place stipulating that they can do so. This would either be the PCN Agreement, a Workforce Sharing Agreement or a sub-contract depending on the structure.
Inevitably, this is something which is likely to be hotly contested so it is important that these documents are well drafted so that all parties are confident that they rely on them. Also bear in mind that any contractual promise is only as good as the party who has given it, so you will want to make sure you understand the financial standing of your contracting parties.
Conclusion
In summary, the use of ARRS resources is inherently complicated and goes against the normal way of employing staff. Our recommendation is that you analyse the key responsibilities and figure out which legal entity is going to be responsible for each of those and then critically, make sure that this is written into the relevant agreements. Those agreements could be a PCN Agreement, a Workforce Sharing Agreement or a sub-contract. The key is that these documents are well drafted and properly negotiated. Remember that these are all legally binding documents and are the only mechanism to achieve any of the above outcomes.
Once you’ve determined this, then the relevant employer must ensure that each contract of employment with a PCN resource reflects the unique arrangements have been made. It is unlikely that a standard ‘off the shelf’ employment contract will do this, so this will usually need some careful drafting.
As can be seen, working with an ARRS resources can be complicated and unfortunately, problems are likely to emerge. As always, the risks can be minimised by taking appropriate advice in advance.
If you would like to speak to an expert solicitor who can help you with your PCN Agreement, Workforce Sharing Agreement, employment contracts or third party sub-contracts, then please call Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com