Appeals against overpayment decisions
Published on: 8th August 2018 | Updated on: 30th March 2022
Community pharmacy contractors may appeal against an NHS England decision to recover overpayments to their businesses as part of the pharmacy provider assurance programme.
On 1st August 2018, Directions came into force giving contractors a process through which to appeal within 30 days of being notified of an overpayment decision by NHS England. The appeal must be made to an officer or employee of the NHS Litigation Service or a committee established in accordance with the Directions (in practice this means the Primary Care Appeals Service (previously the FHSAU) of NHS Resolution).
The National Health Service Litigation Authority (Pharmaceutical Remuneration – Overpayments) (England) Directions 2018 are introduced to plug a gap in the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 which refer to an appeal option for contractors but provide no mechanism for the appeal. This was noticed as part the development of the NHS pharmacy provider assurance programme and, at Community Pharmacy England’s request, NHS England agreed not to seek to recover overpayments until an appeal mechanism had been made available to contractors.
The appeals process
The Primary Care Appeals Service may determine the appeal in a manner it sees fit. An oral hearing will be arranged at the contractor’s request, but only if this is considered necessary. The appeal will be dismissed if it is not brought within the appeal period, or if it contains no valid grounds (e.g. it amounts to a challenge to the legality or reasonableness of the Directions, the Regulations or Drug Tariff). If an oral hearing is arranged, the Primary Care Appeals Service must give no less than 14 days’ notice to NHS England and the contractor of the time and place of the oral hearing.
In deciding the case, the Primary Care Appeals Service may dismiss it, substitute its decision for any decision NHS England could have taken (i.e. decide there has been no overpayment) or quash the decision (it may pass the matter back to NHS England with any directions it considers appropriate). The Primary Care Appeals Service must notify the contractor and NHS England of its decision, which must include a statement of the reasons for its decision and its findings of fact. The decision may be overturned by a court (in effect by judicial review).