The Primary Ophthalmic Services Amendment, Transitional and Consequential Provisions Regulations 2008

Appeals to the Secretary of State against determinations of PCTs (regulations 9, 10 and 11)

15.—(1) Where—

(a) an ophthalmic practitioner has appealed against a determination of a PCT in accordance with regulation 9 before the relevant date, but that appeal has not been finally determined before that date; or

(b) in respect of a determination made by a PCT in accordance with regulation 8 before the relevant date, the time limit specified in regulation 9(2) for appealing that determination has not expired before the relevant date and the ophthalmic practitioner serves a notice of appeal on or after the relevant date, but within the time limit specified in regulation 9(2),

that appeal shall be determined pursuant to regulations 9, 10 and 11, as if any amendments in these Regulations to those regulations had not taken effect.

(2) Where an appropriate PCT has made a determination in respect of an ophthalmic practitioner on or after the relevant date pursuant to this Part—

(a) the ophthalmic practitioner shall be entitled to appeal against that determination in accordance with regulation 9; and

(b) that appeal shall be determined pursuant to regulations 9, 10 and 11,

as if any amendments in these Regulations to those regulations had not taken effect.

(3) Where, on or after the relevant date, the Secretary of State is determining pursuant to regulation 9, 10 or 11 what (if any) action to take in respect of an ophthalmic practitioner, the Secretary of State shall make a determination pursuant to those regulations as if the amendments to those regulations had not taken effect and that determination shall have effect in accordance with this regulation.

(4) If, in accordance with paragraph (3), the Secretary of State determines pursuant to—

(a) regulation 9(3)(d), that there has been an overpayment and, if so, what amount;

(b) regulation 8(5)(a) and 9(3) or 11, that an amount shall be recovered from the ophthalmic practitioner; or

(c) regulation 8(5)(c) and 9(3), that the Secretary of State would have warned the ophthalmic practitioner to comply more closely with its terms of service in future, if those terms of service were still applicable;

the Secretary of State shall, in addition to the persons specified in regulation 10(14), notify the PCT specified in paragraph (5).

(5) The PCT specified is the contracting PCT and the Performers List PCT (if any) if those PCTs are different to the PCT specified in regulation 10(14).

(6) Where, pursuant to regulation 8(5)(a), 9(3) or 11, the Secretary of State has determined that an amount shall be recovered from an ophthalmic practitioner, the Secretary of State shall direct the appropriate PCT, to recover that amount from the ophthalmic practitioner and that amount shall be a debt owed to that appropriate PCT.

(7) Where, pursuant to paragraph (5), the Secretary of State has notified the contracting PCT that the Secretary of State has taken any of the decisions specified in paragraph (4)(a) to (4)(c), whether or not the contracting PCT is also the appropriate PCT, paragraph (8) shall apply without prejudice to any other right the contracting PCT may have to take action against the relevant contractor pursuant to any term of the general ophthalmic services contract.

(8) Where this paragraph applies, the contracting PCT may, in relation to a relevant contractor, take into account the determination of the Secretary of State if it is considering, pursuant to a term of the general ophthalmic services contract that gives effect to paragraph 46(7) of Schedule 1 to the Contracts Regulations whether the cumulative effect of breaches under that contract is such that to allow the contract to continue would be prejudicial to the efficiency of the services provided under that contract.

(9) The contracting PCT shall not, pursuant to paragraph (8), take into account any notification received that relates to a determination that was made by the Secretary of State more than 6 years before the date upon which the contracting PCT is considering the matter pursuant to paragraph (8).

(10) Where a Performers List PCT has received notification from the Secretary of State pursuant to paragraph (4) or (5), whether or not the Performers List PCT is also the appropriate PCT, it shall consider what (if any) action it should take in respect of that ophthalmic practitioner pursuant to its powers under the Performers Lists Regulations.