OpenLegislation

Paragraph 101 NHS dispute resolution procedure

Changes not yet applied. Later legislation changes this provision in ways not yet written into the text below:

(1)

Subject to sub-paragraph (2), the procedure specified in the following sub-paragraphs and paragraph 102 applies in the case of any dispute arising out of or in connection with the contract which is referred to the Secretary of State—

(a)

in accordance with section 4(3) of the 1990 Act (where the contract is an NHS contract); or

(b)

in accordance with paragraph 100(1) (where the contract is not an NHS contract).

(2)

The procedure specified in this paragraph and paragraph 102 does not apply where a contractor refers a matter for determination in accordance with paragraph 36(1) of this Schedule, and in such a case the procedure specified in that paragraph shall apply instead.

(3)

Any party wishing to refer a dispute as mentioned in sub-paragraph (1) shall send to the Secretary of State a written request for dispute resolution which shall include or be accompanied by—

(a)

the names and addresses of the parties to the dispute;

(b)

a copy of the contract; and

(c)

a brief statement describing the nature and circumstances of the dispute.

(4)

Any party wishing to refer a dispute as mentioned in sub-paragraph (1) must send the request under sub-paragraph (3) within a period of three years beginning with the date on which the matter giving rise to the dispute happened or should reasonably have come to the attention of the party wishing to refer the dispute.

(5)

Where the dispute relates to a contract which is not an NHS contract, the Secretary of State may determine the matter himself or, if he considers it appropriate, appoint a person or persons to consider and determine itf1.

(6)

Before reaching a decision as to who should determine the dispute, either under sub-paragraph (5) or under section 4(5) of the 1990 Act, the Secretary of State shall, within the period of 7 days beginning with the date on which a matter was referred 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.

(7)

The Secretary of State shall give, with the notice given under sub-paragraph (6), to the party other than the one which referred the matter to dispute resolution a copy of any document by which the matter was referred to dispute resolution.

(8)

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.

(9)

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 sub-paragraph (6) or (8), the Secretary of State shall, if he decides to appoint a person or persons to hear the dispute—

(a)

inform the parties in writing of the name of the person or persons whom he has appointed; and

(b)

pass to the person or persons so appointed any documents received from the parties under or pursuant to paragraph (3), (6) or (8).

(10)

For the purpose of assisting him in his consideration of the matter, the adjudicator may—

(a)

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

(b)

consult other persons whose expertise he considers will assist him in his consideration of the matter.

(11)

Where the adjudicator consults another person under sub-paragraph (10)(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.

(12)

In considering the matter, the adjudicator shall consider—

(a)

any written representations made in response to a request under sub-paragraph (6), but only if they are made within the specified period;

(b)

any written observations made in response to a request under sub-paragraph (8), but only if they are made within the specified period;

(c)

any oral representations made in response to an invitation under sub-paragraph (10)(a);

(d)

the results of any consultation under sub-paragraph (10)(b); and

(e)

any observations made in accordance with an opportunity given under sub-paragraph (11).

(13)

In this paragraph, “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 paragraph to the specified period is to the period as so extended.

(14)

Subject to the other provisions of this paragraph and paragraph 102 and to any agreement by the parties, the adjudicator shall have wide discretion in determining the procedure of the dispute resolution to ensure the just, expeditious, economical and final determination of the dispute.

Annotations

Footnotes

f1

Where the dispute relates to a contract which is an NHS contract, section 4(5) of the 1990 Act applies.