British Dental Association Update

Guest blog by Jonathan Jacobs – Prosperity Law LLP

After what can only be described as a calamitous period in dentistry, since the CDO’s letter of 25th March 2020, we now have the fifth update, published on 13th July 2020.

As a reminder, on 25th March, NHS England confirmed that they would continue to meet the GDS contract payments of 1/12 of the total contract value each month on the understanding that: –

• All staff (associates, locums, hygienists, therapists, nurses and receptionists) would receive payment at pre-Covid levels;
• That there would be an abatement to account for the decrease in lab expenses and overheads during lockdown;
• That any staff who wished to be redeployed were given the option to do so, if practicable;
• That the furlough option was offered where possible.

At that stage, there was no figure specified as to what the abatement level would be.  However, what was blatantly apparent at that time was the lack of any penalties or consequences should contract holders fail to pass on the monies that were being paid to them by NHS England, without any abatement or reductions to the dentists and staff who worked with them.

As a consequence, whilst many Principals were thankful for the measures put in place to alleviate the stresses that had been placed on NHS dentistry as a result of the economic uncertainty caused by the profession coming to a halt on 23rd March 2020 and abided by the stipulations that were being placed on them, we have seen many examples where this was not the case.

We have heard of associates being refused access to the surgeries where they worked; having their pay completely docked or significantly reduced without consultation; being given summary notice of termination and locum dentists being threatened with termination if they refused to take on an associate role with a two-year tie in.

The 5th letter in the series refers to the two relevant timelines, pre- reopening and post-reopening of dental service.

April 2020 – 7th June 2020

With regards to the period prior to 8th June 2020, a distinction has been made between non UDC practices and UDC practices, which seems reasonable.  The practices that did not become UDCs will have an abatement of 16.75% applied to the total contract value and this amount will be collected over the remainder of the current contract year (IE to 31st March 2021).  The UDC practices will  not suffer such a reduction.

However, the abatement does not translate to the levels of pay that the contract holders are to pay the dental and non-dental staff.  Abatement was already applied to dentist’s pay to cover lab expenses, the statutory levy and Superannuation and there should be no further deductions made to reflect the latest position.

8th June 2020 onwards

Going forward, the following will apply: –

• No abatement for all contracts;
• Non UDC practices will do their utmost to maintain NHS contract performance;
• There will be a minimum requirement of 20% performance of the contract;
• Any practice that seeks to boost private income to the detriment of NHS income will be deemed non-compliant. Assurance will be requested from contract holders on this issue and if not received, the contract will revert to pre-Covid operating procedures;
• Spot-checks will be undertaken where NHS England has concerns.

NHS England describes the above as a “temporary holding arrangement” and that they are working with the BDA to establish new procedures.   They also state that “through the temporary funding arrangements (they are expecting contract holders to confirm) that they have not gained any windfall profits arising from the continued NHS funding being made available to support staff and essential business overheads”

There are a number of obvious concerns with the revised arrangements: –

• Does “support staff and essential business” include Associates and Locums?
• What guarantee is there that the assurances that they are seeking from contract holders will be forthcoming? If they are not, how are they realistically going to police the situation?
• The temporary holding arrangements attempt to be retrospective but do not cover the obligation on Principals to reimburse their associates and locums for the period 23rd March 2020 -7th June 2020 and in some cases ongoing since that date.
• What will the spot-checks entail? How do NHS England propose to analyse the private income that is generated in the case of practices that have not followed the reccomerndations?
• Again, these are guidelines and there are no legal consequences for failure to abide by them.

NHS England is placing a degree of trust in the contract holders to follow these guidelines and whilst in the main, this should be the case, in view of the recent past and the conduct shown by some Principals, it remains a possibility that the number of dentists who are still not paid at proper levels will continue to rise.

We would be surprised if the revised position brings an end to the current situation facing associates and locums and that each dentist is reimbursed in full for the losses that they have sustained and going forward are paid at pre-Covid levels.

For further advice and assistance, please contact Jonathan Jacobs on [email protected] or 0161 667 3686.