The National Health Service (General Dental Services Contracts) Regulations 2005

PART 9 E+W VARIATION AND TERMINATION OF CONTRACTS

Variation of a contract: general E+W

60.—(1) Subject to paragraph 31(3), no amendment or variation shall have effect unless it is in writing and signed by or on behalf of [F1 NHS England] and the contractor.

(2) In addition to the specific provision made in paragraphs [F2 61A,] 62(6), 63(6) and 75, [F1 NHS England] may vary the contract without the contractor's consent where it—

(a) is reasonably satisfied that it is necessary to vary the contract so as to comply with the Act, any regulations made pursuant to the Act, or any direction given by the Secretary of State pursuant to the Act; and

(b) notifies the contractor in writing of the wording of the proposed variation and the date upon which that variation is to take effect,

and, where it is reasonably practicable to do so, the date that the proposed variation is to take effect shall be not less than 14 days after the date on which the notice under paragraph (b) is served on the contractor.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

F2 Word in Sch. 3 para. 60(2) inserted (12.6.2023) by The National Health Service (Primary Dental Services) (Amendment) Regulations 2023 (S.I. 2023/554), regs. 1(1), 2(2)(a)

Variation of a contract: activity under the contract E+W

61.—(1) Where the contractor or [F1 NHS England] is of the opinion that there needs to be a variation to the number of—

(a) units of dental activity; or

(b) units of orthodontic activity,

to be provided under the contract, sub-paragraphs (2) and (3) shall apply.

(2) The contractor or [F1 NHS England] (as the case may be) shall notify the other party to the contract in writing of its opinion of the need for a variation, specifying in that notice the variation that it considers necessary, together with its reasons.

(3) Following service of the notice referred to in sub-paragraph (2), both parties shall use their best endeavours to communicate and co-operate with each other with a view to determining what (if any) variation should be made to the number of—

(a) units of dental activity; or

(b) units of orthodontic activity,

and any related variations to the contract, including to the monies to be paid to the contractor under the contract, and shall where appropriate effect the variation in accordance with paragraph 60.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

[F3 Variation of a contract: rebasing for persistent under performance E+W

61A.— (1) In this paragraph—

“contracted activity” means the number of units of dental activity or units of orthodontic activity the contractor is required to provide under the contract,

“Covid years” means the financial years ending on 31st March 2021 and 31st March 2022,

“rebasing” means a permanent variation of the contract pursuant to sub-paragraph (2) and “rebase” is to be read accordingly,

“rebasing date” means the date, notified by NHS England under a rebasing notice, from which the rebasing takes effect,

“rebasing notice” means a notice in writing sent by NHS England to the contractor, notifying the contractor of the wording of a proposed rebasing and the rebasing date,

“relevant financial years” means any three consecutive financial years, save for the Covid years, which—

(a)

are not before the financial year ending on 31st March 2020, and

(b)

immediately precede the financial year in which the rebasing notice is served on the contractor.

(2) If all the conditions in sub-paragraph (3) are met, NHS England may rebase the contract to—

(a) reduce the contracted activity, and

(b) carry out any related variations of the contract, including in relation to the monies to be paid to the contractor under the contract,

but the rebasing must not result in the contracted activity being reduced to less than the highest number of units of dental or orthodontic activity provided by the contractor in any one of the relevant financial years.

(3) The conditions referred to in sub-paragraph (2) are—

(a) in respect of each relevant financial year—

(i) NHS England invited the contractor to participate in a mid-year review of its performance under the contract, pursuant to paragraph 58(5)(b), whether the contractor has engaged with this procedure or not,

(ii) the contractor provided less than 96% of contracted activity,

(iii) there have not been force majeure circumstances under the contract, which have caused the under delivery pursuant to sub-paragraph (ii),

(iv) NHS England issued a breach notice to the contractor by reason of under delivery pursuant to sub-paragraph (ii), which has not been set aside, and no formal dispute is pending in respect of the circumstances that have given rise to the breach notice, and

(b) NHS England has not been able to agree with the contractor a permanent variation of the contract under paragraph 61(3).

(4) If NHS England decides to rebase a contract—

(a) it must serve a rebasing notice on the contractor and allow a minimum of 28 days, starting with the day the rebasing notice is served on the contractor, before taking any action pursuant to that notice, and

(b) it must specify in the rebasing notice a rebasing date it considers appropriate, which may be any date from 1st April in the financial year in which the rebasing notice is served on the contractor.]

Textual Amendments

F3 Sch. 3 para. 61A inserted (12.6.2023) by The National Health Service (Primary Dental Services) (Amendment) Regulations 2023 (S.I. 2023/554), regs. 1(1), 2(2)(b)

Variation provisions specific to a contract with an individual dental practitioner E+W

62.—(1) If a contractor which is an individual dental practitioner proposes to practise in partnership with one or more persons during the existence of the contract, the contractor shall notify [F1 NHS England] in writing of—

(a) the name of the person or persons with whom it proposes to practise in partnership; and

(b) the date on which the contractor wishes to change its status as a contractor from that of an individual dental practitioner to that of a partnership, which shall be not less than 28 days after the date upon which it has served the notice on [F1 NHS England] pursuant to this sub-paragraph.

(2) A notice under sub-paragraph (1) shall in respect of the person or each of the persons with whom the contractor is proposing to practise in partnership, and also in respect of itself as regards the matters specified in sub-paragraph (c)—

(a) confirm that he is either—

(i) a dental practitioner; or

(ii) a person who satisfies the conditions specified in section 28M(2)(b) of the Act M1 ;

(b) confirm that he is a person who satisfies the conditions imposed by regulation 4; and

(c) state whether or not it is to be a limited partnership, and if so, who is to be a limited and who is to be a general partner,

and the notice shall be signed by the individual dental practitioner and by the person, or each of the persons (as the case may be), with whom he is proposing to practise in partnership.

(3) The contractor shall ensure that any person who will practise in partnership with it is bound by the contract, whether by virtue of a partnership deed or otherwise.

(4) If [F1 NHS England] is satisfied as to the accuracy of the matters specified in sub-paragraph (2) that are included in the notice, [F1 NHS England] shall give notice in writing to the contractor confirming that the contract shall continue with the partnership entered into by the contractor and its partners, from a date that [F1 NHS England] specifies in that notice.

(5) Where it is reasonably practicable, the date specified by [F1 NHS England] pursuant to sub-paragraph (4) shall be the date requested in the notice served by the contractor pursuant to sub-paragraph (1), or, where that date is not reasonably practicable, the date specified shall be a date after the requested date that is as close to the requested date as is reasonably practicable.

(6) Where a contractor has given notice to [F1 NHS England] pursuant to sub-paragraph (1), [F1 NHS England]—

(a) may vary the contract but only to the extent that it is satisfied is necessary to reflect the change in status of the contractor from an individual dental practitioner to a partnership; and

(b) if it does propose to so vary the contract, it shall include in the notice served on the contractor pursuant to sub-paragraph (4) the wording of the proposed variation and the date upon which that variation is to take effect.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

Marginal Citations

M1 Section 28M was inserted into the Act by section 175(1) of the 2003 Act.

Variation provisions specific to a contract with two or more individuals practising in partnership E+W

63.—(1) Subject to sub-paragraph (4), where a contractor consists of two or more individuals practising in partnership in the event that the partnership is terminated or dissolved, the contract shall only continue with one of the former partners if that partner is—

(a) nominated in accordance with sub-paragraph (3); and

(b) a dental practitioner,

and provided that the requirements in sub-paragraphs (2) and (3) are met.

(2) A contractor shall notify [F1 NHS England] in writing at least 28 days in advance of the date on which the contractor proposes to change its status from that of a partnership to that of an individual dental practitioner pursuant to sub-paragraph (1).

(3) A notice under sub-paragraph (2) shall—

(a) specify the date on which the contractor proposes to change its status from that of a partnership to that of an individual dental practitioner;

(b) specify the name of the dental practitioner with whom the contract will continue, which must be one of the partners; and

(c) be signed by all of the persons who are practising in partnership.

(4) If a partnership is terminated or dissolved because, in a partnership consisting of two individuals practising in partnership, one of the partners has died, sub-paragraphs (1) to (3) shall not apply and—

(a) the contract shall continue with the individual who has not died only if that individual is a dental practitioner; and

(b) that individual shall in any event notify [F1 NHS England] in writing as soon as is reasonably practicable of the death of his partner.

(5) When [F1 NHS England] receives a notice pursuant to sub-paragraph (2) or (4)(b), it shall acknowledge in writing receipt of the notice, and in relation to a notice served pursuant to sub-paragraph (2), [F1 NHS England] shall do so before the date specified pursuant to sub-paragraph (3)(a).

(6) Where a contractor gives notice to [F1 NHS England] pursuant to sub-paragraph (2) or (4)(b), [F1 NHS England] may vary the contract but only to the extent that it is satisfied is necessary to reflect the change in status of the contractor from a partnership to an individual dental practitioner.

(7) If [F1 NHS England] varies the contract pursuant to sub-paragraph (6), it shall notify the contractor in writing of the wording of the proposed variation and the date upon which that variation is to take effect.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

Termination by agreement E+W

64.   [F1 NHS England] and the contractor may agree in writing to terminate the contract, and if the parties so agree, they shall agree the date upon which that termination should take effect and any further terms upon which the contract should be terminated.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

Termination on the death of an individual dental practitioner E+W

65.—(1) Where the contract is with an individual dental practitioner and that practitioner dies, the contract shall terminate at the end of the period of [F4 28 days] after the date of his death unless, before the end of that period—

(a) subject to sub-paragraph (2), [F1 NHS England] has agreed in writing with the contractor's personal representatives that the contract should continue for a further period, [F5 not exceeding 6 months] after the end of the period of [F4 28 days]; and

(b) the contractor's personal representatives have confirmed in writing to [F1 NHS England] that they are employing or engaging one or more dental practitioners to assist in the provision of dental services under the contract throughout the period for which it continues.

(2) Where [F1 NHS England] is of the opinion that another contractor may wish to enter into a contract in respect of the mandatory services which were provided by the deceased dental practitioner, the [F6 6 month period] referred to in sub-paragraph (1)(a) may be extended by a period not exceeding six months as may be agreed.

(3) Sub-paragraph (1) does not affect any other rights to terminate the agreement which [F1 NHS England] may have under paragraphs 69 to 74.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

F4 Words in Sch. 3 para. 65(1) substituted (1.6.2011) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/1182), regs. 1, 8(3)(a)

F5 Words in Sch. 3 para. 65(1)(a) substituted (1.6.2011) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/1182), regs. 1, 8(3)(b)

F6 Words in Sch. 3 para. 65(2) substituted (1.4.2012) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments) Regulations 2012 (S.I. 2012/502), regs. 1, 2(4)

Termination by the contractor E+W

66.—(1) A contractor may terminate the contract by serving notice in writing on [F1 NHS England] at any time.

(2) Where a contractor serves notice pursuant to sub-paragraph (1), the contract shall terminate on a date three months after the date on which the notice is served (“the termination date”), save that if the termination date is not the last calendar day of a month, the contract shall instead terminate on the last calendar day of the month in which the termination date falls.

(3) This paragraph and paragraph 67 are without prejudice to any other rights to terminate the contract that the contractor may have.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

Late payment notices E+W

67.—(1) The contractor may give notice in writing (a “late payment notice”) to [F1 NHS England] if [F1 NHS England] has failed to make any payments due to the contractor in accordance with a term of the contract that has the effect specified in regulation 21 (finance), and the contractor shall specify in the late payment notice the payments that [F1 NHS England] has failed to make in accordance with that regulation.

(2) Subject to sub-paragraph (3), the contractor may, at least 28 days after having served a late payment notice, terminate the contract by a further written notice if [F1 NHS England] has still failed to make the payments that were due to the contractor and that were specified in the late payment notice served on [F1 NHS England] pursuant to sub-paragraph (1).

(3) If, following receipt of a late payment notice, [F1 NHS England] refers the matter to the NHS dispute resolution procedure within 28 days of the date upon which it is served with the late payment notice, and it notifies the contractor in writing that it has done so within that period of time, the contractor may not terminate the contract pursuant to sub-paragraph (2) until—

(a) there has been a determination of the dispute pursuant to paragraph 56 and that determination permits the contractor to terminate the contract; or

(b) [F1 NHS England] ceases to pursue the NHS dispute resolution procedure,

whichever is the sooner.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

Termination by [F1 NHS England]: general E+W

68.   [F1 NHS England] may only terminate the contract in accordance with the provisions in this Part.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

Termination by [F1 NHS England]: no longer eligible to enter into and breach of conditions of the contract E+W

69.—(1) Subject to sub-paragraph (2), [F1 NHS England] shall serve notice in writing on the contractor terminating the contract forthwith if—

(a) the contract was entered into pursuant to section 28M(1)(a) of the Act (persons eligible to enter into GDS contracts); and

(b) the contractor is no longer a dental practitioner.

(2) Where a contractor ceases to be a dental practitioner by virtue of a suspension specified in sub-paragraph (6), sub-paragraph (1) shall not apply unless—

(a) the contractor is unable to satisfy [F1 NHS England] that it has in place adequate arrangements for the provision of dental services under the contract for so long as the suspension continues; or

(b) [F1 NHS England] is satisfied that the circumstances of the suspension are such that if the contract is not terminated forthwith—

(i) the safety of the contractor's patients is at serious risk; or

(ii) [F1 NHS England] is at risk of material financial loss.

(3) Except in a case to which paragraph 63(4) applies, where the contractor is two or more persons practising in partnership and the condition prescribed in section 28M(2)(a) of the Act is no longer satisfied, [F1 NHS England] shall—

(a) serve notice in writing on the contractor terminating the contract forthwith; or

(b) serve notice in writing on the contractor confirming that [F1 NHS England] will allow the contract to continue for a period specified by [F1 NHS England] in accordance with sub-paragraph (4) (the “interim period”) if [F1 NHS England] is satisfied that the contractor has in place adequate arrangements for the provision of dental services for the interim period.

(4) The period specified by [F1 NHS England] under sub-paragraph (3)(b) shall not exceed—

(a) six months; or

(b) in a case where the failure of the contractor to continue to satisfy the condition in section 28M(2)(a) of the Act is the result of a suspension referred to in sub-paragraph (6), the period for which that suspension continues.

(5) Where the contract was entered into pursuant to section 28M(1)(b) of the Act, but the contractor ceases to be a dental corporation, [F1 NHS England] shall serve notice in writing on the contractor terminating the contract forthwith.

[F7 (5A) Where the contract was entered into pursuant to section 102(1)(d) of the 2006 Act, and the contractor ceases to—

(a) be a limited liability partnership; or

(b) satisfy the conditions in section 102(2A) of that Act;

[F1 NHS England] shall serve notice in writing on the contractor terminating the contract forthwith.]

(6) The suspensions referred to in sub-paragraphs (2) and (4)(b) are—

(a) until the coming into force of article 18 of the Dentists Act Order (substitution of sections 27 and 28)—

(i) suspension by the Health Committee under section 28 of the Dentists Act (powers of the Health Committee);

(ii) suspension by the Professional Conduct Committee or the Health Committee under section 30(3) of that Act (orders for immediate suspension); or

(iii) suspension by the Preliminary Proceedings Committee under section 32 of that Act (orders for interim suspension); or

(b) from the coming into force of article 18 of the Dentists Act Order for all purposes—

(i) suspension by the Health Committee, the Professional Performance Committee or the Professional Conduct Committee under section 27B or 27C of the Dentists Act, except under section 27C(1)(d) (indefinite suspension), following a relevant determination;

(ii) suspension by the Health Committee, the Professional Performance Committee or the Professional Conduct Committee under section 30(1) of that Act (orders for immediate suspension); or

(iii) suspension by the Health Committee, the Professional Performance Committee, the Professional Conduct Committee or the Interim Orders Committee under section 32 of that Act (interim orders).

(7) For the purposes of sub-paragraph (6)(b)(i), a “relevant determination” is a determination that a person's fitness to practise is impaired based solely on the ground mentioned in—

(a) section 27(2)(b) of the Dentists Act (deficient professional performance); or

(b) section 27(2)(c) of that Act (adverse physical or mental health).

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

F7 Sch. 3 para. 69(5A) inserted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(42)(b) (with Sch. 1)

Termination by [F1 NHS England] for the provision of untrue etc. information E+W

70.   [F1 NHS England] may serve notice in writing on the contractor terminating the contract forthwith, or from such date as may be specified in the notice if, after the contract has been entered into, it comes to the attention of [F1 NHS England] that written information provided to [F1 NHS England] by the contractor—

(a) before the contract was entered into; or

(b) pursuant to paragraph 42(2),

in relation to the conditions set out in regulation 4 or 5 (and compliance with those conditions) was, when given, untrue or inaccurate in a material respect.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

Termination by [F1 NHS England] on grounds of suitability etc. E+W

71.—(1)  [F1 NHS England] may serve notice in writing on the contractor terminating the contract forthwith, or from such date as may be specified in the notice if—

(a) in the case of a contract with a dental practitioner, that dental practitioner;

(b) in the case of a contract with two or more individuals practising in partnership, any individual or the partnership; F8 ...

(c) in the case of a contract with a dental corporation—

(i) the corporation; or

(ii) any director, chief executive or [F9 the secretary of the corporation; and]

[F10 (d) in the case of a contract with a limited liability partnership—

(i) the limited liability partnership; or

(ii) any member of the limited liability partnership,]

falls within sub-paragraph (2) during the existence of the contract or, if later, on or after the date on which a notice in respect of his compliance with the conditions in regulation 4 or 5 was given under paragraph 42(2).

(2) A person falls within this sub-paragraph if—

(a) he or it is the subject of a national disqualification;

(b) subject to sub-paragraph (3), he or it is disqualified or suspended (other than by an interim suspension order or direction pending an investigation or a suspension on the grounds of ill-health) from practising by any licensing body anywhere in the world;

(c) subject to sub-paragraph (4), he has been dismissed (otherwise than by reason of redundancy) from any employment by a health service body unless before [F1 NHS England] has served a notice terminating the contract pursuant to this paragraph, he is employed by the health service body that dismissed him or by another health service body;

(d) he or it is removed from, or refused admission to, a primary care list by reason of inefficiency, fraud or unsuitability (within the meaning of section 49F(2), (3) and (4) of the Act M2 respectively) unless his name has subsequently been included in such a list;

(e) he has been convicted in the United Kingdom of—

(i) murder; or

(ii) a criminal offence other than murder, committed on or after 14th December 2001, and has been sentenced to a term of imprisonment of over six months;

(f) subject to sub-paragraph (5), he has been convicted outside the United Kingdom of an offence—

(i) which would, if committed in England and Wales, constitute murder; or

(ii) committed on or after 14th December 2001, which would if committed in England and Wales, constitute a criminal offence other than murder, and been sentenced to a term of imprisonment of over six months;

(g) he has been convicted of an offence referred to in Schedule 1 to the Children and Young Persons Act 1933 M3 (offences against children and young persons with respect to which special provisions apply) or Schedule 1 to the Criminal Procedure (Scotland) Act 1995 M4 (offences against children under the age of 17 years to which special provisions apply);

(h) he or it has—

(i) been [F11 made] bankrupt or had sequestration of his estate awarded [F12 or is a person in relation to whom a moratorium period under a debt relief order (under Part 7A of the Insolvency Act 1986) applies] unless F13 ... he has been discharged [F14 from the bankruptcy or the sequestration] or the bankruptcy order has been annulled;

(ii) been made the subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order under Schedule 4A[F15 , or a debt relief restrictions order or interim debt relief restrictions order under Schedule 4ZB,] to the Insolvency Act 1986 M5 , unless that order has ceased to have effect or has been annulled;

(iii) made a composition or arrangement with, or granted a trust deed for, his or its creditors unless he or it has been discharged in respect of it; or

(iv) been wound up under Part IV of the Insolvency Act 1986;

(i) there is—

(i) an administrator, administrative receiver or receiver appointed in respect of it; or

(ii) an administration order made in respect of it under Schedule B1 to the Insolvency Act 1986 M6 ;

(j) that person is a partnership and—

(i) a dissolution of the partnership is ordered by any competent court, tribunal or arbitrator; or

(ii) an event happens that makes it unlawful for the business of the partnership to continue, or for members of the partnership to carry on in partnership;

(k) he has been—

(i) removed from the office of charity trustee or trustee for a charity by an order made by the Charity Commissioners or the High Court on the grounds of any misconduct or mismanagement in the administration of the charity for which he was responsible or to which he was privy, or which he by his conduct contributed to or facilitated; or

(ii) removed under section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 M7 (powers of the Court of Session to deal with management of charities) [F16 or under section 34 of the Charities and Trustee Investment (Scotland) Act 2005 (powers of Court of Session)], from being concerned in the management or control of any body;

(l) he is subject to a disqualification order under the Company Directors Disqualification Act 1986 M8 , the Companies (Northern Ireland) Order 1986 M9 or to an order made under section 429(2)(b) of the Insolvency Act 1986 (failure to pay under county court administration order); or

(m) he has refused to comply with a request by [F1 NHS England] for him to be medically examined on the grounds that it is concerned that he is incapable of adequately providing services under the contract and, in a case where the contract is with two or more individuals practising in partnership[F17 , with a dental corporation or a limited liability partnership] [F1 NHS England] is not satisfied that the contractor is taking adequate steps to deal with the matter.

(3) [F1 NHS England] shall not terminate the contract pursuant to sub-paragraph (2)(b) where [F1 NHS England] is satisfied that the disqualification or suspension imposed by a licensing body outside the United Kingdom does not make the person unsuitable to be—

(a) a contractor;

(b) a partner, in the case of a contract with two or more individuals practising in partnership; F18 ...

(c) in the case of a contract with a dental corporation, a director, chief executive or secretary of the corporation [F19 ; or]

[F20 (d) in the case of a contract with a limited liability partnership, a member of that limited liability partnership.]

(4) [F1 NHS England] shall not terminate the contract pursuant to sub-paragraph (2)—

(a) until a period of at least three months has elapsed since the date of the dismissal of the person concerned; or

(b) if, during the period of time specified in paragraph (a), the person concerned brings proceedings in any competent tribunal or court in respect of his dismissal, until proceedings before that tribunal or court are concluded,

and [F1 NHS England] may only terminate the contract at the end of the period specified in paragraph (b) if there is no finding of unfair dismissal at the end of those proceedings.

(5) [F1 NHS England] shall not terminate the contract pursuant to sub-paragraph (2)(f) where [F1 NHS England] is satisfied that the conviction does not make the person unsuitable to be—

(a) a contractor;

(b) a partner, in the case of a contract with two or more individuals practising in partnership; F21 ...

(c) in the case of a contract with a dental corporation, a director, chief executive or secretary of the corporation [F22 ; or]

[F23 (d) in the case of a contract with a limited liability partnership, a member of that limited liability partnership.]

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

F8 Word in Sch. 3 para. 71(1)(b) omitted (1.4.2013) by virtue of The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(44)(c) (with Sch. 1)

F9 Words in Sch. 3 para. 71(1)(c)(ii) substituted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(44)(d) (with Sch. 1)

F10 Sch. 3 para. 71(1)(d) inserted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(44)(e) (with Sch. 1)

F11 Word in Sch. 3 para. 71(2)(h)(i) substituted (6.4.2016) by The Enterprise and Regulatory Reform Act 2013 (Consequential Amendments) (Bankruptcy) and the Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) Regulations 2016 (S.I. 2016/481), reg. 1, Sch. 2 para. 13

F12 Words in Sch. 3 para. 71(2)(h)(i) inserted (1.10.2012) by The Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012 (S.I. 2012/2404), art. 1, Sch. 3 para. 47(3)(a)(i) (with art. 7)

F13 Words in Sch. 3 para. 71(2)(h)(i) omitted (1.10.2012) by virtue of The Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012 (S.I. 2012/2404), art. 1, Sch. 3 para. 47(3)(a)(ii) (with art. 7)

F14 Words in Sch. 3 para. 71(2)(h)(i) inserted (1.10.2012) by The Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012 (S.I. 2012/2404), art. 1, Sch. 3 para. 47(3)(a)(iii) (with art. 7)

F15 Words in Sch. 3 para. 71(2)(h)(ii) inserted (1.10.2012) by The Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012 (S.I. 2012/2404), art. 1, Sch. 3 para. 47(3)(b) (with arts. 7, 8)

F16 Words in Sch. 3 para. 71(2)(k)(ii) inserted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(44)(f) (with Sch. 1)

F17 Words in Sch. 3 para. 71(2)(m) substituted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(44)(g) (with Sch. 1)

F18 Word in Sch. 3 para. 71(3)(b) omitted (1.4.2013) by virtue of The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(44)(h)(i) (with Sch. 1)

F19 Word in Sch. 3 para. 71(3)(c) inserted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(44)(h)(ii) (with Sch. 1)

F20 Sch. 3 para. 71(3)(d) inserted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(44)(h)(iii) (with Sch. 1)

F21 Word in Sch. 3 para. 71(5)(b) omitted (1.4.2013) by virtue of The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(44)(i)(i) (with Sch. 1)

F22 Word in Sch. 3 para. 71(5)(c) inserted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(44)(i)(ii) (with Sch. 1)

F23 Sch. 3 para. 71(5)(d) inserted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(44)(i)(iii) (with Sch. 1)

Marginal Citations

M2 Section 49F was inserted into the Act by section 25 of the 2001 Act and amended by the 2002 Act, Schedule 3, paragraph 21 and the 2003 Act, Schedule 14, Part 2.

M3 1933 c. 12 as amended by the Domestic Violence, Crime and Victims Act 2004 (c. 28), section 58(1), Schedule 10, paragraph 2, the Sexual Offences Act 2003 (c. 42) section 139 and Schedule 6, paragraph 7, the Criminal Justice Act 1988 (c. 33), section 170 and Schedule 15, paragraph 8 and Schedule 16, paragraph 16 and the Sexual Offences Act 1956 (c. 69), sections 48 and 51 and Schedules 3 and 4; and as modified by the Criminal Justice Act 1988, section 170(1), Schedule 15, paragraph 9.

M4 1995 c. 46.

M5 1986 c. 45. Schedule 4A was inserted by section 257 of, and Schedule 3 to, the Enterprise Act 2002 (c. 40).

M6 Schedule B1 was inserted by section 248 of and Schedule 16 to the Enterprise Act 2002.

M7 1990 c. 40.

M8 1986 c. 46 as amended by the Insolvency Act 2000 (c. 39).

M9 S.I. 1986/1032 (N.I.6).

Termination by [F1 NHS England]: patient safety and material financial loss E+W

72.   [F1 NHS England] may serve notice in writing on the contractor terminating the contract forthwith or with effect from such date as may be specified in the notice if—

(a) the contractor has breached the contract and as a result of that breach, the safety of the contractor's patients is at serious risk if the contract is not terminated; or

(b) the contractor's financial situation is such that [F1 NHS England] considers that [F1 NHS England] is at risk of material financial loss.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

Termination by [F1 NHS England]: remedial notices and breach notices E+W

73.—(1) Where a contractor has breached the contract other than as specified in paragraphs 70 to 72 and the breach is capable of remedy, [F1 NHS England] shall, before taking any action it is otherwise entitled to take by virtue of the contract, serve a notice on the contractor requiring it to remedy the breach (“remedial notice”).

(2) A remedial notice shall specify—

(a) details of the breach;

(b) the steps the contractor must take to the satisfaction of [F1 NHS England] in order to remedy the breach; and

(c) the period during which the steps must be taken (“the notice period”).

(3) The notice period shall, unless [F1 NHS England] is satisfied that a shorter period is necessary to—

(a) protect the safety of the contractor's patients; or

(b) protect itself from material financial loss,

be no less than 28 days from the date that notice is given.

(4) Where [F1 NHS England] is satisfied that the contractor has not taken the required steps to remedy the breach by the end of the notice period, [F1 NHS England] may terminate the contract with effect from such date as [F1 NHS England] may specify in a further notice to the contractor.

(5) Where a contractor has breached the contract other than as specified in paragraphs 70 to 72 and the breach is not capable of remedy, [F1 NHS England] may serve notice on the contractor requiring the contractor not to repeat the breach (“breach notice”).

(6) If, following a breach notice or a remedial notice, the contractor—

(a) repeats the breach that was the subject of the breach notice or the remedial notice; or

(b) otherwise breaches the contract resulting in either a remedial notice or a breach notice,

[F1 NHS England] may serve notice on the contractor terminating the contract with effect from such date as may be specified in that notice.

(7) [F1 NHS England] shall not exercise its right to terminate the contract under sub-paragraph (6) unless it is satisfied that the cumulative effect of the breaches is such that [F1 NHS England] considers that to allow the contract to continue would be prejudicial to the efficiency of the services to be provided under the contract.

(8) If the contractor is in breach of any obligation and a breach notice or a remedial notice in respect of that breach has been given to the contractor, [F1 NHS England] may withhold or deduct monies which would otherwise be payable under the contract in respect of that obligation which is the subject of the breach.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

[F24 Termination by [F1 NHS England]: additional provisions specific to contracts with two or more individuals practising in partnership, dental corporations, or limited liability partnerships.] E+W

74.—(1) Where the contractor is a dental corporation, if [F1 NHS England] becomes aware that the contractor is carrying on any business which [F1 NHS England] considers to be detrimental to the contractor's performance of its obligations under the contract—

(a) [F1 NHS England] shall be entitled to give notice to the contractor requiring that it ceases carrying on that business before the end of a period of not less than 28 days beginning on the day on which the notice is given (“the notice period”); and

(b) if the contractor has not satisfied [F1 NHS England] that it has ceased carrying on that business by the end of the notice period, [F1 NHS England] may, by a further written notice, terminate the contract forthwith or from such date as may be specified in the notice.

(2) Where the contractor is a dental corporation and on or after the coming into force for all purposes of article 39 of the Dentists Act Order during the existence of the contract—

(a) the majority of the directors of the dental corporation cease to be either dental practitioners or dental care professionals;

(b) the dental corporation has been convicted of an offence under section 43(1) of the Dentists Act M10 (directors of bodies corporate); or

(c) the dental corporation, or a director or former director of that corporation, has had a financial penalty imposed on it or him by the General Dental Council pursuant to section 43B (financial penalties in relation to bodies corporate) or 44 (further financial penalties on bodies corporate) of the Dentists Act M11 ,

[F1 NHS England] may, by written notice, terminate the contract if it considers that as a consequence the dental corporation is no longer suitable to be a contractor.

(3) Where the contractor is two or more persons practising in partnership, [F1 NHS England] shall be entitled to terminate the contract by notice in writing on such date as may be specified in that notice where one or more partners have left the practice during the existence of the contract if, in its reasonable opinion, [F1 NHS England] considers that the change in membership of the partnership is likely to have a serious adverse impact on the ability of the contractor or [F1 NHS England] to perform its obligations under the contract.

(4) A notice given to the contractor pursuant to sub-paragraph (3) shall specify—

(a) the date upon which the contract is to be terminated; and

(b) [F1 NHS England’s] reasons for considering that the change in the membership of the partnership is likely to have a serious adverse impact on the ability of the contractor or the Primary Care Trust to perform its obligations under the contract.

[F25 (5) Where the contractor is a limited liability partnership, [F1 NHS England] shall be entitled to terminate the contract by notice in writing on such date as may be specified in that notice where one or more members have left the practice during the existence of the contract if, in its reasonable opinion, [F1 NHS England] considers that the change in membership of the limited liability partnership is likely to have a serious adverse impact on the ability of the contractor or [F1 NHS England] to perform its obligations under the contract.

(6) A notice given to the contractor pursuant to sub-paragraph (5) shall specify—

(a) the date upon which the contract is to be terminated; and

(b) [F1 NHS England’s] reasons for considering that the change in the membership of the limited liability partnership is likely to have a serious adverse impact on the ability of the contractor or [F1 NHS England] to perform its obligations under the contract.]

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

F24 Sch. 3 para. 74 heading substituted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(47)(c) (with Sch. 1)

F25 Sch. 3 para. 74(5)(6) added (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 19(47)(b)(ii) (with Sch. 1)

Marginal Citations

M10 Section 43 of the Dentists Act is substituted by the Dentists Act Amendment Order 2005, article 39.

M11 Section 43B was inserted into, and section 44 is substituted by, the Dentists Act Amendment Order, article 39.

Contract sanctions E+W

75.—(1) In this paragraph and paragraph 76, “ contract sanction” means—

(a) termination of specified reciprocal obligations under the contract;

(b) suspension of specified reciprocal obligations under the contract for a period of up to six months; or

(c) withholding or deducting monies otherwise payable under the contract.

(2) Where [F1 NHS England] is entitled to terminate the contract pursuant to paragraph 70, 71, 72, 73(4), 73(6) or 74, it may instead impose any of the contract sanctions if [F1 NHS England] is reasonably satisfied that the contract sanction to be imposed is appropriate and proportionate to the circumstances giving rise to [F1 NHS England’s] entitlement to terminate the contract.

(3) [F1 NHS England] shall not, under sub-paragraph (2), be entitled to impose any contract sanction that has the effect of terminating or suspending any obligation to provide, or any obligation that relates to, mandatory services.

(4) If [F1 NHS England] decides to impose a contract sanction, it must notify the contractor of the contract sanction that it proposes to impose, the date upon which that sanction will be imposed and provide in that notice an explanation of the effect of the imposition of that sanction.

(5) Subject to paragraph 76, [F1 NHS England] shall not impose the contract sanction until at least 28 days after it has served notice on the contractor pursuant to sub-paragraph (4) unless [F1 NHS England] is satisfied that it is necessary to do so in order to—

(a) protect the safety of the contractor's patients; or

(b) protect itself from material financial loss.

(6) Where [F1 NHS England] imposes a contract sanction, [F1 NHS England] shall be entitled to charge the contractor the reasonable costs of additional administration that [F1 NHS England] has incurred in order to impose, or as a result of imposing, the contract sanction.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

Contract sanctions and the NHS dispute resolution procedure E+W

76.—(1) If there is a dispute between [F1 NHS England] and the contractor in relation to a contract sanction that [F1 NHS England] is proposing to impose, [F1 NHS England] shall not, subject to sub-paragraph (4), impose the proposed contract sanction except in the circumstances specified in sub-paragraph (2)(a).

(2) If the contractor refers the dispute relating to the contract sanction to the NHS dispute resolution procedure within 28 days beginning on the date on which [F1 NHS England] served notice on the contractor in accordance with paragraph 75(4) (or such longer period as may be agreed in writing with [F1 NHS England]), and notifies [F1 NHS England] in writing that it has done so, [F1 NHS England] shall not impose the contract sanction unless—

(a) there has been a determination of the dispute pursuant to paragraph 56 and that determination permits [F1 NHS England] to impose the contract sanction; or

(b) the contractor ceases to pursue the NHS dispute resolution procedure,

whichever is the sooner.

(3) If the contractor does not invoke the NHS dispute resolution procedure within the time specified in sub-paragraph (2), [F1 NHS England] shall be entitled to impose the contract sanction forthwith.

(4) If [F1 NHS England] is satisfied that it is necessary to impose the contract sanction before the NHS dispute resolution procedure is concluded in order to—

(a) protect the safety of the contractor's patients; or

(b) protect itself from material financial loss,

[F1 NHS England] shall be entitled to impose the contract sanction forthwith, pending the outcome of that procedure.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

Termination and the NHS dispute resolution procedure E+W

77.—(1) Where [F1 NHS England] is entitled to serve written notice on the contractor terminating the contract pursuant to paragraph 70, 71, 72, 73(4), 73(6) or 74, [F1 NHS England] shall, in the notice served on the contractor pursuant to those provisions, specify a date on which the contract terminates that is not less than 28 days after the date on which [F1 NHS England] has served that notice on the contractor unless sub-paragraph (2) applies.

(2) This sub-paragraph applies if [F1 NHS England] is satisfied that a period less than 28 days is necessary in order to—

(a) protect the safety of the contractor's patients; or

(b) protect itself from material financial loss.

(3) In a case falling with sub-paragraph (1), where the exceptions in sub-paragraph (2) do not apply, where the contractor invokes the NHS dispute resolution procedure before the end of the period of notice referred to in sub-paragraph (1), and it notifies [F1 NHS England] in writing that it has done so, the contract shall not terminate at the end of the notice period but instead shall only terminate in the circumstances specified in sub-paragraph (4).

(4) The contract shall only terminate if and when—

(a) there has been a determination of the dispute pursuant to paragraph 56 and that determination permits [F1 NHS England] to terminate the contract; or

(b) the contractor ceases to pursue the NHS dispute resolution procedure,

whichever is the sooner.

(5) If [F1 NHS England] is satisfied that it is necessary to terminate the contract before the NHS dispute resolution procedure is concluded in order to—

(a) protect the safety of the contractor's patients; or

(b) protect itself from material financial loss,

sub-paragraphs (3) and (4) shall not apply and [F1 NHS England] shall be entitled to confirm, by written notice to be served on the contractor, that the contract will nevertheless terminate at the end of the period of the notice it served pursuant to paragraph 70, 71, 72, 73(4), 73(6) or 74.

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1