Unmasking contract dispute resolution: Ten tips for commissioners and providers to avoid conflict

NHS England and NHS Improvement share a set of helpful hints and practical guidance for dispute avoidance.

The interrelationships between providers and commissioners and the contracts binding them have tensions built in. Disputes are not rare – this document: Lessons learned from contract dispute resolution is a must read for all those involved in the negotiation and management of health and care contracts. The ten hints follow lessons learned from recent experience of contract dispute resolution across the country.

The dos and don’ts of contract dispute resolution – commissioners and providers take note

• Make sure that you are familiar with national business rules such as National Tariff, the NHS Standard Contract and CQUIN.
• If there is disagreement or doubt about how the national business rules are to be understood, seek advice: the national teams at NHSE and NHSI offer email helpdesk support (there is also a list of useful websites at the end of the document).
• Remember that a dispute is likely to be resolved on the basis of what your local contract actually says, specifically:

- ensure that your local contract covers all of the important matters you have agreed before you sign it:

- avoid “long-stopping” difficult issues to be resolved after contract signature;

- make sure that the wording you use to document important local agreements is clear; and

- if you agree something new and material after signing your contract, vary the contract immediately (following the process set out in General Condition 13), so that the new agreement is    included within it and its nature and status are clear.

• Your ability to exercise your rights under the contract may be jeopardised if you don’t follow contract processes properly in areas such as contesting payment, notifying and agreeing changes to services and notifying counting and coding changes.
• Disputes can often centre on whether a party can gain financial redress for a historic issue which has had a financial impact over months or even years.
• The contract rules on Managing Counting and Coding Changes (SC28) involve obligations to notify proposed changes and to neutralise their financial impact for specified period.
• Where a disagreement arises, a local audit of the provider’s practice can often be a useful tool in reaching a resolution. But difficulties often arise where audits are carried out without clear agreement on their purpose and scope and on how their findings are to be given effect.
• Disputes will be minimised if commissioners and providers take a reasonable approach to in-year financial reconciliation and contesting of payment and avoid “gaming”.
• If a serious disagreement starts to emerge locally, discuss it fully with the other party, before entering the formal dispute resolution process set out in GC14.
• An effective contractual relationship is not all about what’s in the contract and how it is enforced. But about shared goals and good relationships between commissioner and provider, faith and integrity on either side and a culture of reasonableness, transparency and trust underpinned by good communication.

Avoiding and minimising disputes is a key priority for commissioners procuring services and for providers delivering services. Adopting these “top ten helpful hints” is likely to ensure, as near as possible, a happy and enduring marriage.

Do get in touch with Rhian Vandrill if you require support or advice.