NHS Resolution is the operating name of NHS Litigation Authority – we were established in 1995 as a Special Health Authority and are a not-for-profit part of the NHS. Our purpose is to provide expertise to the NHS on resolving concerns fairly, share learning for improvement and preserve resources for patient care. To find out how we use personal information, please read our privacy statement at www.nhsla.com/Pages/How-we-use-your-information---FHSAU.aspx

25 September 2019 REF: SHA/22184 APPEAL AGAINST, NHS COMMISSIONING BOARD ("NHS ENGLAND") DECISION REGARDING A DECISION OVER QUALITY PAYMENTS JUNE 2018 GATEWAY CRITERIA AT SPIVACK CHEMIST (FWT75) 1 Outcome:

1.1 I, as an authorised officer of NHS Resolution, have dismissed the appeal and confirm the decision of NHS England. Regulation 94(1) of the Regulations therefore enables NHS England to recover the amount overpaid by deduction from other remuneration payable to the Appellant.

Arena Point Merrion Way

Leeds LS2 8PA

Tel: 0203 928 2000 Fax: 0207 821 0029 Email: appeals@resolution.nhs.uk

NHS Resolution is the operating name of NHS Litigation Authority – we were established in 1995 as a Special Health Authority and are a not-for-profit part of the NHS. Our purpose is to provide expertise to the NHS on resolving concerns fairly, share learning for improvement and preserve resources for patient care. To find out how we use personal information, please read our privacy statement at www.nhsla.com/Pages/How-we-use-your-information---FHSAU.aspx

REF: SHA/22184 APPEAL AGAINST, NHS COMMISSIONING BOARD ("NHS ENGLAND") DECISION REGARDING A DECISION OVER QUALITY PAYMENTS JUNE 2018 GATEWAY CRITERIA AT SPIVACK CHEMIST (FWT75)

1 NHS England’s Decision

A decision was sent to Mr K Malik on 20 June 2019 in respect of Spivack Chemist (FWT75). The decision stated:

1.1 NHSBSA Provider Assurance Team part of NHS Business Services Authority has undertaken a post payment verification exercise on behalf of NHS England for Quality Payments claimed in June 2018 and paid in August 2018.

1.2 To be eligible to claim payments under the Quality Payments Scheme (QPS) pharmacies must first have met four gateway criteria. This exercise sought to verify whether pharmacies met the requirements of the four gateway criteria outlined in Part VII of the June 2018 Drug Tariff on the day of the review 29 June 2018.

1.3 As part of the verification exercise your pharmacy has been contacted on a number of occasions by the Provider Assurance Team to request the submission of evidence to verify that your pharmacy met the four QPS Gateway Criteria for June 2018.

1.4 To date you have not provided the relevant evidence for the following Gateway Criteria.

1.4.1 pharmacy staff at the pharmacy must be able to send and receive NHSmail from their premises shared NHSmail account

1.5 Attached is a timeline of correspondence with your pharmacy and evidence provided to date which was passed to the NHS England local Pharmaceutical Services Regulatory Committee (PSRC) to consider whether further action was necessary.

1.6 The NHS England Pharmaceutical Services Regulatory Committee has now reviewed this evidence and noted that:

1.6.1 FWT75 – SPIVACK CHEMIST has claimed quality points on the basis of meeting all of the gateway criteria on the review date 29 June 2018.

1.6.2 The NHSBSA Provider Assurance Team has been unable to verify that FWT75 – SPIVACK CHEMIST has met the gateway requirements above.

Arena Point Merrion Way

Leeds LS2 8PA

Tel: 0203 928 2000 Fax: 0207 821 0029 Email: appeals@resolution.nhs.uk

3

1.7 In particular, FWT75 – SPIVACK CHEMIST:

1.7.1 Failed to provide evidence that premises shared NHS Mail account was active on the review date (29/06/18).

1.8 The pharmacy was contacted on 3 separate occasions by the BSA to try and obtain evidence from the pharmacy to demonstrate that the requirements for the un-validated gateway criteria above were met.

1.9 The BSA followed this up with an email and received a delivery receipt from the pharmacy email address on 08/03/19. These email addresses khuram@pyramidpharmacy.co.uk and spivack@pyramidpharmacy.co.uk were confirmed directly with the pharmacy.

1.10 SPIVACK CHEMIST did not provide any correspondence or information to the Provider Assurance Team to demonstrate meeting these gateway criteria.

1.11 Having reviewed the information provided by the BSA Provider Assurance Team the NHS England Pharmaceutical Services Regulatory Committee has decided that an overpayment in relation to your June QPS declaration has occurred and has instructed recovery of this overpayment to be progressed in accordance with Regulation 94 (1) of The National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013.

1.12 Table below shows your adjustment amount.

Pharmacy ODS code Adjustment

FWT75 £3,668.06

Action Required

1.13 Please respond to this correspondence to nhsbsa.pharmacysupport@nhs.net to confirm your agreement for the overpayment to be recovered pursuant to Regulation 94(1) (a) of The National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013. Please send this confirmation by 20th July 2019 to the BSA at nhsbsa.pharmacysupport@nhs.net.

1.14 Where you agree an overpayment has been made the amount over paid will be recovered by deduction from a future NHSBSA payment to you. Should you wish so the BSA can arrange for this payment to be collected in monthly instalments over a six month period.

1.15 Once the BSA has received confirmation to recover the overpayment it will notify you when this will take place.

1.16 A record of this process will be kept on your NHS England contractor file.

1.17 Please be aware that failing to contact us to agree that there has been an overpayment DOES NOT mean that the overpayment cannot be recovered. Instead, where you do not agree that an overpayment has been made you have a right of appeal to the Secretary of State against NHS England’s decision. Should you choose to appeal then send a concise and reasoned statement of the grounds for your appeal within 30 days of the date of this letter to appeals@resolution.nhs.uk or: NHS Resolution, 4th Floor, Arena Point, Merrion Way, Leeds, LS2 8PA

4

1.18 If there is no appeal within 30 days from the date of this letter, NHS England has requested that the NHSBSA Provider Assurance Team commence overpayment recoveries under Regulation 94(1) (b) of The National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013, on the basis that the final outcome of our investigation is that there has been an overpayment.

1.19 The BSA will notify you of when the overpayment recovery will take place.

1.20 A record of this process will be kept on your NHS England contractor file.

1.21 If you have any further questions about the details above please contact NHSBSA Provider Assurance team 0300 330 1295 or by email at nhsbsa.pharmacysupport@nhs.net

2 The Appeal

In an email dated 18 July 2019 and addressed to NHS Resolution, Mr Malik on behalf of Spivack Chemist (the “Appellant”) appealed against NHS England's decision. The grounds of appeal are:

2.1 The shared email was not set up due to issues with the pharmacy portal. The Appellant has attached emails from September 2017 documenting their contact with NHS IT helpdesk. The Appellant was unable to resolve the issues in time for the review point however they were still trying to set the mail box up; the Appellant’s understanding was that if the setting up was being pursued it could be stated that the branch in question did meet this gateway criteria.

2.2 [You] will be aware of problems at the time with the portal applications and the guidance that was issued with regard to claims of quality points. The Appellant would like to stress the importance of these payments in allowing Pyramid to offer a service to the public at a time of increased financial constriction.

2.3 The shared emails have been set up some time ago now when the Appellant managed to resolve system issues

3 Summary of Representations

This is a summary of representations received on the appeal.

3.1 NHS Business Services Authority (“NHS BSA”) on behalf of NHS England

Background

3.1.1 The terms of the Quality Payment Scheme for 2018 were outlined in the Drug Tariff. Previous editions of the Drug Tariff can be found at: https://www.nhsbsa.nhs.uk/pharmacies-gp-practices-and-appliance-contractors/drugtariff/back-copies-drug-tariff

3.1.2 The Tariff states that:

“To qualify for payments, pharmacy contractors will have to meet four gateway criteria on the day of the review:

the contractor must be offering at the pharmacy Medicine Use Review (MUR) or New Medicine Service (NMS); or must be registered for NHS Urgent Medicine Supply Advanced Service Pilot; and

the NHS Choices entry, including bank holiday opening hours, for the pharmacy must be up to date*; and

5

pharmacy staff at the pharmacy must be able to send and receive NHS mail from their shared premises NHSmail account; and;

the pharmacy contractor must be able to demonstrate ongoing utilisation of the Electronic Prescription Service at the pharmacy premises

*For the review point, contractors must edit and/or validate their NHS Choices entry between 00:00 on 9 April 2018 and 23:59 on 29 June 2018 and distance selling pharmacies must send an email to the NHS Choices service desk in the same time frame as per NHS England guidance document, Quality Payments Guidance for the June 2018 declaration.

Passing the gateway criteria will not, in and of itself, earn a quality payment for the pharmacy.”

3.1.3 The Tariff therefore makes it clear that a contractor cannot claim for a quality payment unless they have met each, and every, gateway criteria; on the day of the review.

3.1.4 NHS England provided clarification of how contractors should demonstrate meeting these gateway criteria in their June 2018 declaration guidance document, published in April 2018. This document has been provided to you separately in addition to this information.

3.1.5 This guidance document was available to contractors well ahead of the QPS declaration and was produced with the close co-operation of the pharmacy contractor’s representative body the PSNC. The PSNC had also, and continues to provide support to its contractors to ensure that QPS declarations are made accurately and can be evidenced.

3.1.6 This document highlights the need for contractors to be able to demonstrate how they met the QPS requirements on the review date when making their declaration:

“For a contractor to become eligible for the Quality Payments Scheme it must meet four gateway criteria”.

3.1.7 The contractor will need to be able to demonstrate with evidence, when they make their review date declaration, how they had met all the gateway requirements.

3.1.8 The guidance also detailed that claims would be validated and that contractors would be asked to provide evidence where validation could not be confirmed from national data sets:

“The validation checks have compared the information provided by contractors in their declarations against national data sets held by NHS England. Where NHS England has been unable to confirm that the contractor has met the gateway or quality criteria from these validation checks, contractors may be contacted by the NHSBSA and a request for further information made. Where a contractor is unable to provide appropriate evidence of meeting the Quality Payments Scheme requirements, they would not be eligible for a quality payment.”

3.1.9 In the verification exercise undertaken by the NHSBSA Spivack Chemist were asked on three occasions to provide the evidence for meeting the unverified gateway criteria and this they failed to do.

6

3.1.10 Where the NHSBSA had been unable to validate a pharmacy’s QPS declaration from the verification exercise, the details were past to the regional teams for their Pharmacy Services Regulation Committees to review the evidence and decide whether a contractor was able to demonstrate meeting the terms of the scheme; and if not whether an overpayment had been made and should then be recovered.

3.1.11 The PSRCs across the country were only asked to do this in a very small number of cases across the country. Over 10,600 contractors were validated for QPS payments using the evidence available from national data sets or in response to NHSBSA requests for supporting evidence.

The PSRC decision

3.1.12 The PSRC were asked to consider whether an overpayment had been made when the NHSBSA paid Spivack Chemist the quality payment claimed for in their June 2018 QPS declaration.

3.1.13 When reviewing the evidence provided, the PSRC concluded that the NHSBSA had been unable to find any evidence to demonstrate that the contractor met the gateway requirements for the following gateway criteria:

3.1.13.1 Pharmacy staff at the pharmacy must be able to send and receive NHS mail from their shared premises NHSmail account.

3.1.14 This was despite the repeated requests made by the NHSBSA to the contractor to provide such evidence.

3.1.15 In the absence of any evidence to demonstrate meeting these gateway requirements, the PSRC concluded that the contractor would then have claimed for the quality payment when it had not met the requirements of the scheme.

3.1.16 Following this conclusion, the PSRC therefore determined that the pharmacy was not entitled to the payment for which it had claimed.

3.1.17 Having made this decision the PSRC then directed that as the pharmacy was not entitled to the payment that the overpayment should be reclaimed pursuant to Regulation 94 (1) (a) of The National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013.

3.1.18 In making this decision the PSRC relied on the information that it had before it, following the extensive investigation undertaken by the NHSBSA and the repeated requests to the contractor for evidence of how it met all the Gateway requirements at the time of the declaration.

3.1.19 In response to the points made in the appeal:

Gateway Requirement:

Pharmacy staff at the pharmacy must be able to send and receive NHS mail from their shared premises NHSmail account.

3.1.20 The requirements for this gateway criterion have changed since the 2017 review points.

3.1.21 This change has been introduced to encourage use of the premises specific NHSmail accounts that have been set up for every English community pharmacy that has requested one as part of the drive by NHS England to

7

develop infrastructure to better integrate community pharmacy into the wider NHS.

3.1.22 Unless a contractor can send and receive email from their shared NHSmail account they will not meet the gateway. Sending and receiving email from a personal NHSmail account will not be considered as having met the gateway criterion.

3.1.23 The June 2018 guidance states “The simplest way for a contractor to ensure that they have a shared NHSmail account and to have the evidence to demonstrate this, is to send an email from the shared account to one of the linked personal accounts during the declaration window. This email should then be filed so that it is accessible to resend to the NHSBSA if required to demonstrate that the account meets the requirements of this criterion.”

3.1.24 In their appeal statement the appellant states that they were unable to get their shared mailbox set up due to issues with the pharmacy portal and includes emails which document contact with the “NHS IT helpdesk”.

3.1.25 The NHSBSA team contacted the pharmacy on no less than three occasions to request evidence to demonstrate that the NHS Mail criteria had been met. However the appellant did not respond to these requests and evidence has only been provided at the appeal stage.

3.1.26 The emails provided show communication between the pharmacy and pharmacyadmin@nhs.net dated from 26 September 2017. In these emails the contractor states that he is having issues registering his branches. The Pharmacy Admin Team replied to the contractor by email, providing a telephone number and an additional email address for the contractor if they wish to speak to someone regarding these issues. The Pharmacy Admin team also request further information so they are able to look in to the issue and advise on the next steps. The contractor then provides the Pharmacy Admin Team with a list of ODS codes and requests “I need the following pharmacies registered with my email address (khurammalik@nhs.net) to allow me to set up a generic email address”. Included in this list of ODS codes is account FWT75. However, no evidence has been supplied by the contractor in their appeal which demonstrates they made further attempts to register for an NHS mail account or that they had any further issues setting one up.

3.1.27 The evidence demonstrates that the pharmacy had made attempts to register for a NHSmail account back in September 2017. Data provided to the NHSBSA by NHS Digital shows that the pharmacy did get a premises specific NHS Mail account for FWT75 set up on 27 November 2018. Despite this being over a year since the contractor contacted the pharmacy admin team regarding registering his branches, no evidence has been provided to suggest that there were on-going issues in the lead up to the June 2018 review point.

3.1.28 The appellant also states in their appeal that “I was unable to resolve the issues in time for the review point however I was still trying to set the mail box up; my understanding was that if the setting up was being pursued it could be stated that the branch in question did meet this gateway criteria”.

3.1.29 This understanding is incorrect. Contractors who had applied for a shared NHSmail account before the April 2017 QPS declaration would have met this Gateway criterion, as this provision was in place to manage the volume of applications for NHSmail accounts at that time. By the November 2017 declaration the criterion had required contractors to have an operational NHS mail account and for staff to be able to send and receive NHSmail.

8

3.1.30 The appellant did not make a declaration at the November 2017 review point and so did not receive a quality payment.

3.1.31 The appellant goes on to say that “You will be aware of problems at the time with the portal applications and the guidance that was issued with regard to claims of quality points.” This point was queried with NHS Digital who confirmed that they had no record of any specific problems being reported regarding the pharmacy portal and stated that if a contractor had experienced any issues, then appropriate support was in place from the pharmacy admin team. The guidance issued by NHS England ahead of the June 2018 QPS declaration was explicit on the need for contractors to meet all the gateway criteria in order to qualify for a quality payment. Section 5.3 of the guidance outlines the specifics of the NHS Mail criterion and also includes a link to the Guide for Community Pharmacies using NHSmail. Again, although the contractor states that there were problems at the time with the portal applications, they have not provided any evidence to support this, how it affected them and what action they took as a result of these issues.

3.1.32 Over 10,600 contractors were validated for the NHS Mail gateway criteria by ensuring their pharmacies had a premises specific NHS Mail shared account in place.

3.1.33 NHS Digital also confirmed that of the 7 ODS codes listed in the appellant’s email of the 26 September 2017, 2 had since ceased trading, 3 had NHS Mail accounts created in July, August and October 2017 and 2 had NHS Mail accounts created in November 2018, one of which was FWT75. It was also confirmed by NHS Digital that all of these accounts were created via the self-service registration portal for pharmacies. This shows that the appellant was able to create NHS Mail accounts for other branches using the pharmacy portal and as no issues were reported regarding the portal at the time, this would suggest that a NHS Mail account could have been set up for FWT75 for the June 2018 review.

3.1.34 Therefore, Spivack Chemist has failed to demonstrate that they were compliant with the requirements of this gateway criterion on the June 2018 review date.

Key points for consideration

3.1.35 NHS England respectfully asks that NHS Resolution considers the following key points when making its determination on the appeal:

3.1.35.1 The Drug Tariff is very clear that contractors must meet the gateway criteria at the review point in order to qualify for payment.

3.1.35.2 NHS England has no power to make payments to pharmacy contractors outside of the statutory framework set out in the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 and the Drug Tariff.

3.1.35.3 NHS England had produced guidance that was explicit on need for contractors to be able to demonstrate how they met the terms of the scheme.

3.1.35.4 National data sets were used to validate contractors as meeting the scheme requirements.

3.1.35.5 Where contractors were not validated from national data sets then the onus is on the contractor to demonstrate how they were compliant with the terms of the scheme when they made their declaration.

9

3.1.35.6 The contractor had numerous opportunities to provide evidence of meeting the terms of the QPS following the requests from the NHS BSA. Over 10,600 contractors were validated as meeting the scheme’s requirements. Only those contractors who were not validated, where there was no, or insufficient, evidence of meeting the terms of the scheme, were referred to the regional PSRC.

3.1.35.7 The PSRC fully considered the evidence that it had before it when making its determination for the overpayment under regulation 94.

3.1.35.8 The evidence in the appeal does not demonstrate a shared pharmacy mailbox account was in use at the time of the review and therefore the appellant has not demonstrated how they met the requirements of this Gateway requirement, for the June 2018 review point.

3.1.35.9 In their appeal statement, the appellant refers to issues they were having with the pharmacy portal; however they have not provided any evidence to support this and NHS Digital have confirmed that they have no record of any issue with the pharmacy portal during this time.

3.1.35.10 Data provided to the Provider Assurance team from NHS Digital indicates that a NHS shared mailbox for account FWT75 was created on 27 November 2018. This shows that the shared mailbox was not in place in time for the June 2018 review point.

3.1.36 Having considered these matters NHS England suggests that NHS Resolution conclude that the decision made by the PSRC in respect of the overpayment recovery from Spivack Chemist was fair and in accordance with the regulations.

4 Observations

No observations were received by NHS Resolution in response to the representations received on appeal.

5 Consideration

5.1 The Appellant has appealed against the decision of NHS England to recover payment in respect of the gateway criteria under the Quality Payments Scheme for 2017/2018 (the “Gateway Criteria”).

5.2 The Secretary of State for Health and Social Care, under the provisions of Direction 2 of The National Health Service Litigation Authority (Pharmaceutical Remuneration – Overpayments) (England) Directions 2018 (the “Directions”), has directed that NHS Resolution must determine this appeal on his behalf. I, as an authorised officer of NHS Resolution, have made this determination.

5.3 I have before me the papers considered by NHS BSA (on behalf of NHS England). I also have before me the responses to NHS Resolution’s own statutory consultations.

5.4 On the basis of the information before me I have considered that it is not necessary to hold an Oral Hearing.

5.5 I have had regard to the Directions. Direction 7(1) provides me with three options:

5.5.1 dismiss the appeal and confirm the decision;

5.5.2 substitute for the decision any decision that NHS England could have taken when it took the decision; or

10

5.5.3 quash the decision, with or without remitting the matter to NHS England for it to take the decision again subject to such directions as NHS Resolution considers appropriate.

5.6 NHS BSA, on behalf of NHS England, has provided a copy of the Pharmacy Quality Payments, Gateway Criteria Guidance dated December 2016, February 2017, November 2017 and June 2018. NHS BSA also provided a copy of the PSNC Briefing 026/18 Quality Payments – Evidence checklist v2 document dated April 2018, as well as a link to all previous editions of the Drug Tariff. I note that the Appellant has not disputed the guidance as provided or the Drug Tariff, against which the Quality Payments were considered and I will therefore proceed on this basis.

5.7 I note that the Quality Payments Scheme is set out in the June 2018 Drug Tariff under Part VIIA which includes the wording below:

1 “Entitlement

1.1 To qualify for payments, pharmacy contractors will have to meet the following four gateway criteria on the day of the review:

the contractor must be offering at the pharmacy Medicine Use Review (MUR) or New Medicine Service (NMS); or must be registered for NHS Urgent Medicine Supply Advanced Service Pilot; and

the NHS Choices entry, including bank holiday opening hours, for the pharmacy must be up to date*; and

pharmacy staff at the pharmacy must be able to send and receive NHS from their shared premises NHSmail account and

the pharmacy contractor must be able to demonstrate ongoing utilisation of the Electronic Prescription Service at the pharmacy premises.

1.2 Passing the gateway criteria will not, in and of itself, earn a quality payment for the pharmacy. Quality payments will depend on how many of the quality criteria the pharmacy meets.”

5.8 The asterisk after the term “up to date” links to a footnote in Part VII which states:

“*For the review point, contractors must edit and/or validate their NHS Choices entry between 00:00 on 9 April 2018 and 23:59 on 29 June 2018 and distance selling pharmacies must send an email to the NHS Choices service desk in the same time frame as per NHS England guidance document, Quality Payments Guidance for the June 2018 declaration.”

5.9 I note that the Pharmacy Quality Payments Guidance for the June 2018 declaration published in April 2018 states (I have only included the Gateway Criterion that is relevant to this determination):

“The June declaration will operate in much the same way as previous declarations, requiring pharmacies to meet all of the gateway criteria before being eligible to claim payments for successfully meeting the quality criteria. A small number of minor changes have been introduced since the inception of the Quality Payments Scheme and these are outlined in this guidance.

NHS England previously published two guidance documents to support pharmacy contractors wishing to take part in the Quality Payments Scheme: Pharmacy Quality Payments Gateway Criteria Guidance and Pharmacy Quality Payments Quality Criteria Guidance. This guidance replaces the Pharmacy Quality Payments- Guidance for November 2017 with guidance applicable to the June 2018 review point.

11

To claim a quality payment, contractors will need to complete an online declaration on the NHS Business Services Authority (NHS BSA) website, as per both of the April and November 2017 declarations.

The website will open for declarations for the 29 June 2018 review point on Monday 11 June 2018 at 09:00 and will close on Friday 13 July 2018 at 23:59. …..

Any declarations made in 2017 have no bearing on the June 2018 declaration. All contractors wishing to claim this quality payment are required to meet the requirements of the June 2018 declarations and have the appropriate up to date evidence and cannot rely on evidence used for the 2017 declarations.

Contractors must retain evidence of meeting both gateway and quality criteria for validation purposes. Where possible, details of the validation process and the evidence required are provided in this guidance. ……

Claiming quality payments

Unless a contractor makes a valid claim by submitting the declaration via the NHS BSA website during this claim window, they will not be paid the quality payment.”

“NHSmail

The requirements for this gateway criterion have changed since the 2017 review points

Pharmacy staff at the pharmacy must be able to send and receive NHSmail from their premises shared NHSmail account. …….

Pharmacies will not be required to provide the details of their premises shared NHSmail address in their declaration. This will be validated for participating contractors against the active premises shared NHSmail addresses held for contractors by NHS Digital.

Unless a contractor can send and receive email from their shared NHSmail account they will not meet the gateway. Sending and receiving email from a personal NHSmail account will not be considered as having met the gateway criterion. To establish whether your pharmacy shared mailbox is QPS compliant, please follow the below guidance.”

NHS Pharmacy mailboxes

Shared mailboxes inside the nhspharmacy container will have the prefix ‘nhspharmacy’ and will follow the below naming convention:

nhspharmacy.location.pharmacynameODScode@nhs.net

Legacy shared mailboxes

Shared mailboxes that were created prior to the introduction of the NHS pharmacy naming convention typically include the prefix of the organisation that sponsored the creation of the account, i.e. the commissioning organisation that set the account up.

Action to take to check compliancy:

Personal user accounts being used as a shared mailbox:

12

If your pharmacy is using an individual user account as a shared mailbox this will not meet the QPS criterion. In such cases contractors will be required to register for a new shared mailbox using the NHSmail Portal. ………

Setting up a shared account will include the creation of up to three personal accounts which will be used to access the shared account. Once a contractor has completed the registration using the automated portal, they will be sent login details for the personal accounts so that they can activate them, thereby allowing constant access to the shared NHSmail inbox.”

5.10 I note that the four Gateway Criteria are those as set out in the Drug Tariff as quoted above and that further guidance as to how to meet the Gateway Criteria was provided in the June 2018 guidance document and the PSNC Briefing 026/18 Quality Payments – Evidence checklist v2 document dated April 2018.

5.11 I note, from the decision of NHS England sent to the Appellant on 20 June 2019, that NHS England confirmed that the Appellant had not provided the relevant evidence for the following Gateway Criterion:

5.11.1 pharmacy staff at the pharmacy must be able to send and receive NHS from their shared premises NHSmail account

5.12 I note that the Appellant did not provide any information to NHS BSA in relation to the Gateway Criterion above. I note the information provided by NHS BSA in relation to the Gateway Criterion above which was listed in the NHS BSA’s spreadsheet included with its representations. I note that the NHS BSA had passed this information to NHS England’s Pharmaceutical Services Regulatory Committee (“PSRC”) and that following a review of the information the PSRC considered that it was unable to verify that the Appellant had met the relevant Gateway Criterion.

5.13 The decision letter went on to conclude that there had been an overpayment in relation to the June QPS and that the overpayment was going to be recovered under Regulation 94(1) of the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013, which states:

“Where the NHSCB considers that a payment has been made to an NHS chemist pursuant to the arrangements mentioned in regulation 89(5) or 91(7) in circumstances where it was not due, it must (except to the extent that the Secretary of State, on the application of the NHSCB, directs otherwise) draw the overpayment to the attention of the NHS chemist, and—

(a) where the NHS chemist admits the overpayment; or

(b) if the NHS chemist does not admit there has been an overpayment, where the final outcome of an investigation or appeal is that there has been an overpayment,

the amount overpaid shall be recoverable by deduction from other remuneration payable to the NHS chemist in respect of pharmaceutical services or as a civil debt.”

5.14 It is NHS England’s determination that there has been an overpayment and that such overpayment is to be recovered which the Appellant is appealing.

5.15 I have considered the information provided by the Appellant as to why NHS England should not have made this determination.

5.16 The Appellant has provided copies of emails from 26 September 2017 with their letter of appeal in which they are requesting assistance from the IT Helpdesk registering their pharmacy branches for NHSmail accounts. I note that the Appellant has not provided any further information to demonstrate that there was any subsequent contact with the NHS IT Helpdesk after the emails of 26 September 2017. In their letter of appeal, the

13

Appellant states that the email was not set up due to issues with the pharmacy portal. The Appellant goes on to state that the attached emails, dating from September 2017, demonstrate the issues that they had had with the NHS IT Helpdesk and that they were trying to get the mail box set up when the declaration had to be submitted. The Appellant states that they were of the understanding that if this was the case, it could be stated that the branch in question did meet this gateway criteria.

5.17 I am mindful that the requirements for the June 2018 Gateway criterion have changed since the April 2017 review point. The Appellant’s understanding that if they could demonstrate that they had contacted the NHS IT Helpdesk they would have met the criterion was relevant and part of the Guidance for the April 2017 review point, however for the June 2018 Gateway Criterion it was clear that the NHSmail account already had to have been set up and that unless a contractor was able to send and receive email from their shared NHSmail account then they would not meet the gateway.

5.18 I am mindful that the June 2018 Guidance states that: “Pharmacy staff at the pharmacy must be able to send and receive NHSmail from their premises shared NHSmail account.” It further states that “Unless a contractor can send and receive email from their shared NHSmail account they will not meet the gateway. Sending and receiving email from a personal NHSmail account will not be considered as having met the gateway criterion.”

5.19 The June 2018 Guidance document also states, under the heading “NHS Pharmacy mailboxes”

Shared mailboxes inside the nhspharmacy container will have the prefix ‘nhspharmacy’ and will follow the below naming convention

nhspharmacy.location.pharmacynameODScode@nhs.net

5.20 I am also mindful that the PSNC Briefing 026/18 Quality Payments – Evidence checklist v2 document dated April 2018 states:

“NHSmail

‘On the day of the review, pharmacy staff at the pharmacy must be able to send and receive NHSmail from their shared premises NHSmail account’

PSNC guidance and resources: psnc.org.uk/QPNHSmail

Examples of acceptable evidence:

On 29th June 2018, a staff member should send an email to their personal NHSmail account, from the premises shared NHSmail account and retain a copy of the email.

On 29th June 2018, a staff member should send an email to a colleague from the premises shared NHSmail account and ask the colleague to reply to it. Retain a copy of the sent email and the colleague’s reply.

From 14th May 2018 until 29th June 2018, check that the pharmacy’s NHSmail address is displayed in the list of shared mailboxes published on the NHSmail portal.”

5.21 I note that NHS BSA state that confirmation was received from NHS Digital with regard to the setting up of accounts for other pharmacies within the group. Whilst the other pharmacy NHSmail accounts are not relevant to this determination, and I therefore take no view on the date that these were set up, I note that the NHSmail account for this pharmacy (FWT75) was created in November 2018. I note further that this was set up through the self-service portal by the Appellant themselves.

14

5.22 Whilst I note the comments from the Appellant with regard to the “problems at the time with the portal applications” I note that the Appellant has not disputed that the date that the NHSmail account was set up was November 2018 and that this was done through the self-service portal. Further nothing has been provided by the Appellant to demonstrate that there were ongoing problems with the portal from the time of the initial emails of 26 September 2017 until the NHSmail account was finally set up in November 2018. I am therefore of the view that the evidence provided does not support a finding that the shared premises email account was in use on 29 June 2018..

5.23 The June 2018 Guidance is clear that the account needs to be set up and be able to send and receive NHSmail, which the appellant has been unable to confirm that they have been able to do.

5.24 Given the information before me, it is unfortunate that the Appellant appears to have had some problems setting up its email address, however, I am of the view that the onus was on the Appellant to follow up the email sent in September 2017 to the NHS IT Helpdesk. Further, I am of the view that it was clear from the June 2018 Guidance that providing information that the NHSmail account was being set up was not sufficient for the June 2018 Gateway. I am therefore of the view that the Appellant has not demonstrated that its staff were able to send and receive NHSmail from a shared NHSmail account. I am not satisfied that the Appellant has achieved the requirements of the Gateway Criterion “Pharmacy staff at the pharmacy must be able to send and receive NHS mail”.

5.25 I have therefore concluded that in accordance with the Drug Tariff Part VIIA the Appellant did not meet this Gateway Criterion.

5.26 I note that the decision sent on 20 June 2019 refers to the Appellant’s “adjusted amount” as being £3,668.06. It is not clear whether this is the amount of the overpayment or if this a sum payable to the Appellant that has been reduced by the amount that was overpaid. In any event, I note that this figure is not disputed by the Appellant and therefore I make no determination in relation to the amount of the overpayment.

6 Decision

6.1 I have had regard to the Directions which, as outlined above, provide me with three options:

6.1.1 dismiss the appeal and confirm the decision;

6.1.2 substitute for the decision any decision that NHS England could have taken when it took the decision; or

6.1.3 quash the decision, with or without remitting the matter to NHS England for it to take the decision again subject to such directions as NHS Resolution considers appropriate

6.2 I, as an authorised officer of NHS Resolution, have dismissed the appeal and confirm the decision of NHS England that there has been an overpayment. Regulation 94(1) of the Regulations therefore enables NHS England to recover the amount overpaid by deduction from other remuneration payable to the Appellant.

Lisa Hughes Head of Primary Care Appeals A copy of this decision is being sent to: Spivack Chemist NHS BSA on behalf of NHS England