Article 4 Appeal against refusal of a contract under article 3
A person who has been notified by a Primary Care Trust under article 3(8) of its refusal to enter into a general medical services contract may appeal to the Secretary of State by giving notice in writing to the Secretary of State within a period of 28 days beginning on the day that the Primary Care Trust notified him of the refusal.
A notice of appeal under paragraph (1) shall include—
the names and addresses of the parties to the dispute;
a copy of the notification received from the Primary Care Trust under article 3(8); and
a brief statement of the grounds for appeal.
The Secretary of State may determine the appeal himself or, if he considers it appropriate, appoint a person or persons to consider and determine it.
Before reaching a decision as to who should determine the dispute, the Secretary of State shall, within the period of 7 days beginning with the date on which the notice of appeal was sent to him, send a written request to the parties to make in writing, within a specified period, any representations which they may wish to make about the matter.
The Secretary of State shall give, with the notice given under paragraph (4), to the Primary Care Trust which is a party to the appeal, a copy of the notice of appeal.
The Secretary of State shall give a copy of any representations received from a party to the other party and shall in each case request (in writing) a party to whom a copy of the representations is given to make within a specified period any written observations which it wishes to make on those representations.
Following receipt of any representations from the parties or, if earlier, at the end of the period for making such representations specified in the request sent under paragraph (4) or (6), the Secretary of State shall, if he decides to appoint a person or persons to consider and determine the dispute—
inform the parties in writing of the name of the person or persons whom he has appointed; and
pass to the person or persons so appointed any documents received from the parties under or pursuant to paragraph (2), (4) or (6).
For the purpose of assisting him in his consideration of the matter, the adjudicator may—
invite representatives of the parties to appear before him to make oral representations either together or, with the agreement of the parties, separately, and may in advance provide the parties with a list of matters or questions to which he wishes them to give special consideration; or
consult other persons whose expertise he considers will assist him in his consideration of the matter.
Where the adjudicator consults another person under paragraph (8)(b), he shall notify the parties accordingly in writing and, where he considers that the interests of any party might be substantially affected by the result of the consultation, he shall give to the parties such opportunity as he considers reasonable in the circumstances to make observations on those results.
In considering the matter, the adjudicator shall consider—
any written representations made in response to a request under paragraph (4), but only if they are made within the specified period;
any written observations made in response to a request under paragraph (6), but only if they are made within the specified period;
any oral representations made in response to an invitation under paragraph (8)(a);
the results of any consultation under paragraph (8)(b); and
any observations made in accordance with an opportunity given under paragraph (9).
In this article, “specified period” means such period as the Secretary of State shall specify in the request, being not less than 2, nor more than 4, weeks beginning with the date on which the notice referred to is given, but the Secretary of State may, if he considers that there is good reason for doing so, extend any such period (even after it has expired) and, where he does so, a reference in this article to the specified period is to the period as so extended.
The adjudicator may, when determining the appeal require the Primary Care Trust to enter into a general medical services contract with the prospective contractor on terms to be agreed between the parties or, where necessary, determined under the pre-contract dispute resolution procedure in section 4(4) of the 1990 Act (NHS contracts) or under regulation 9 of the 2004 Regulations (whichever is applicable) but may not require the prospective contractor to proceed with the contract.
The adjudicator shall record his determination in writing and shall give notice of the determination (including the record of the reasons) to the parties.
The determination of the adjudicator shall be binding upon the parties.
Subject to the other provisions of this article, the adjudicator shall have wide discretion in determining the procedure of the appeal to ensure the just, expeditious, economical and final determination of the dispute.
In this article, “adjudicator” means the Secretary of State or a person or persons appointed by him under this article or under paragraph 101(5) of Schedule 6 to the 2004 Regulations.