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PDS agreements: termination provisions - Crouch v South Birmingham PCT
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Last modified date:16 December 2008
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Gateway reference:9586, 11081
16 December 2008: Court of Appeal judgement
The Department of Health's appeal against the Order made by Collins J. in the Administrative Court on 26 February 2008 was heard in the Court of Appeal on 27 November 2008 by the Master of the Rolls, Lord Justice Dyson and Lord Justice Jackson. The Court heard submissions from the Secretary of State, the BDA and Mr Crouch. In the Judgement handed down 10 December 2008, the Court of Appeal upheld the Order made by Collins J. The Department has carefully considered the Judgement and this advice is intended to ensure that PCTs are aware of the effect of the Judgement. PDS agreement termination clauses now need to accord with the Judgement, that precludes termination on grounds other than those for which express provision is made in the NHS (Personal Dental Services Agreement) Regulations 2005 ("the PDS Regulations"). The judgement has no affect on GDS contracts.
The relevant provisions under which a PCT may serve written notice of termination of a PDS agreement under Part 9 of the PDS Regulations, which accord with the judgement, are to be found in Schedule 3 specifically paragraphs 68, 69, 70, 71, 72 and 75(following dispute resolution).
Any additional termination provisions included in a PDS agreement related to termination on notice (paragraph 67) do not have effect and should be revoked.
Note: Standard clauses for a PDS agreement that meet these termination requirements can be found on the DH website at
5 March 2008: Note on the judgement of Mr Justice Collins
The Crouch judicial review proceedings were heard on 25/26 February 2008 in the Administrative Court at the Royal Courts of Justice by Collins J.
Mr Crouch challenged the legality of a clause in his PDS agreement allowing the PCT to terminate the agreement at any time. This clause was inserted in the agreement pursuant to paragraph 67 of Schedule 3 to the National Health Service (Personal Dental Service Agreements) Regulations 2005 (“PDS Regulations”).
A PCT is required under the PDS Regulations to include a clause that has the same effect as paragraph 67 of Schedule 3 to the Regulations. This paragraph provides -
"67(1) The Relevant Body may terminate the agreement by serving notice in writing on the contractor at any time.
(2) where notice is served pursuant to sub-paragraph (1), the agreement shall terminate on the date provided for in the agreement.”
The purpose of this paragraph is to allow PCTs to terminate PDS agreements provided notice is given in writing, following the notice period contained in the agreement. Contractors have a similar right to terminate the agreement without cause in the PDS regulations, and in the PDS agreements.
The Court has re-interpreted paragraph 67 of Schedule 3 to the PDS regulations, the paragraph underpinning the challenged termination clause, as being merely a procedural provision relating to termination of agreements. What the court has said is that the way in which paragraph 67 is drafted means that it can only be interpreted to have procedural effect. The effect of the judgement is that the current provision cannot be interpreted as a termination without cause provision, nor can this provision be relied upon to underpin a termination without cause clause in a PDS agreement while this judgement stands.
The Department has yet to consider the formal judgement in this case which we expect to be handed down in early March. The Department will take a view on how best to deal with this judgement and at that stage further information regarding the Department's views will be available.
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Contact:Chris Audrey, Head of Primary Dental Services
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Address:Dental & Eye Care Services
Directorate of Commissioning & System Management
New King's Beam House
20 Upper Ground
London SE1 9BW
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Phone:020 7633 4149
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Fax:020 7633 7665
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Email:
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