1. Introduction

NHS England became responsible for the direct commissioning of general ophthalmic services (GOS) in England on 1 April 2013. Since 1 April 2023 it has delegated this responsibility to integrated care boards (ICBs) as set out in the standard delegation agreement entered into between each ICB and NHS England.

ICBs carrying out commissioning under delegated authority do so on behalf of NHS England and will therefore also need to comply with NHS England’s legal duties when doing this.

The term ‘commissioner’ in this revised policy book refers to the responsible commissioner for GOS and includes NHS England and ICBs as appropriate.

This policy book provides new and revised policies to support a consistent and compliant approach to GOS commissioning across England and identifies where the content is for mandatory functions (that is, those defined in legislation) or given as best practice.

1.1 Change control and transitional arrangements

The policy book is periodically refined and updated following changes in legislation, contracts or central policy and guidance. Users are therefore advised this is a controlled document and the most up to date version should always be used.

This policy book replaces all previous versions. The processes and procedures set out in this policy book must be followed where a matter arises after the date of publication of this policy book.

Where a matter arose prior to the publication of this policy book (and the parties are therefore following a previous policy), the parties should continue to follow that previous policy as this would have been the expectation of the parties at the time.

Parties following a previous policy should consider switching to the relevant policy set out in this policy book if there is a natural transitional point in the matter and provided all parties agree.

1.2 Provisions during times of national emergencies

There may be occasions when national challenges require commissioners to work more flexibly. Statutory duties will remain along with the responsibilities for quality and safety, but commissioners may need to pause some standard processes. This will be informed by the emergency legislation or policy requirements that may be in place at the time.

1.3 Abbreviations and acronyms

The following abbreviations and acronyms are used in the GOS policies:

Part A: Excellent commissioning and partnership working

2. General duties of NHS England (including addressing health inequalities)

2.1 Introduction

This chapter outlines the general duties that commissioners must comply with and that are most applicable to primary care and therefore likely to affect decisions regarding the provision of general ophthalmic services (GOS). We provide examples to illustrate how the duties might affect decision-making.  In many instances the duties placed on NHS England are mirrored by similar duties placed on ICBs. We have highlighted the equivalent ICB duty. However, this chapter does not cover any further ICB duties that apply only to ICBs and not to NHS England.

There are many general duties on commissioners. It is important that decision-makers are familiar with all these duties because if a duty has not been complied with when a decision is taken, that decision can be challenged in the courts on the grounds that it is unlawful.

As has been noted, under delegation arrangements NHS England retains the legal responsibility for compliance with the duties in respect of GOS commissioning. Accordingly, NHS England will require assurance that its statutory functions are being discharged effectively by an ICB. This underlines the importance of compliance with the duties outlined in this chapter.

2.2 Equality and health inequalities duties

This section considers the equality and health inequality duties. First, the duties under the Equality Act 2010 are considered followed by the other health inequality-related duties. NHS England’s Equality and Health Inequalities Unit has a resource hub with information. Additionally, the Equality and Human Rights Commission publishes a wealth of information.

Equality Act 2010

Commissioners have both general and specific equality related duties under the Equality Act 2010. The general duty can be found in section 149 of the Equality Act. It is known as the public sector equality duty or the PSED. The specific duties are imposed on commissioners by secondary legislation, namely the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017.

Further details on both the PSED and the 2017 Regulations are provided in the sections below.

The duty to have regard to the PSED will arise when commissioners are exercising their functions. A commissioner will be open to legal challenge if it is unable to demonstrate its regard to the PSED when publishing guidance or policies or making decisions. A failure to comply with the prescribed duties outlined in the 2017 Regulations will also be unlawful. Guidance on the PSED can also be found on the Equality and Human Rights Commission website.

The protected characteristics

The Equality Act 2010 prohibits unlawful discrimination in the provision of services (including healthcare services) on the basis of “protected characteristics”.

The protected characteristics are:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief (which can include an absence of belief)
• sex
• sexual orientation

Unlawful discrimination

Unlawful discrimination can also occur if a person is at a disadvantage because of a combination of these factors.

There are broadly 4 types of discrimination in the provision of services that are unlawful under the Equality Act 2010. (Unlawful discrimination is also prohibited in the field of employment and other areas but these are not covered in this guidance.)

Public sector equality duty

The general public sector equality duty can be found in sections 149 to 157 of the Equality Act 2010.

The Equality Act 2010 requires commissioners to have “due regard” to the need to:

• eliminate discrimination that is unlawful under the Act
• advance equality of opportunity between people who share a protected characteristic and people who do not share it; and
• foster good relations between persons who share a protected characteristic and persons who do not share it

These objectives are often referred to as the “three aims” of the PSED. The aims are amended for the protected characteristic of marriage and civil partnership. Commissioners are required to have due regard to eliminate unlawful discrimination based on marriage and civil partnership (the first aim). However, they are not required to have due regard to the need to advance equality of opportunity or foster good relations in relation to marriage and civil partnership (the second and third aims).

Compliance with the 3 aims of the PSED can require a commissioner to take positive steps to reduce inequalities. In this regard the Act permits treating some people more favourably than others but not if this amounts to unlawful discrimination (what is meant by unlawful discrimination is considered above). The PSED has been used successfully on many occasions to challenge changes to services.

This means that a commissioner has a duty to help eliminate any unlawful discrimination practised by the providers of primary care: for example, through requiring premises to be accessible. Failing to use its negotiating power to secure such changes could be seen as a breach by a commissioner of the PSED, as well as a breach of the non-discrimination rules by the service provider.

From 1 August 2016, all organisations that provide NHS care or publicly-funded adult social care are legally required to follow the Accessible Information Standard. The standard sets out a specific, consistent approach to identifying, recording, flagging, sharing and meeting the information and communication support needs of patients with a disability, impairment or sensory loss.  Carrying out appropriate equality and health inequalities impact assessments (EHIAs) is usually critical to proving discharge of the PSED, although they are not as such a legal requirement. This is because if there is no assessment of the impact of a possible change on groups with protected characteristics, it is very difficult to argue that the commissioner had the impact properly in mind when it made its decision. This is the case even if the impact on protected groups is minimal.

It is not always easy to assess the equality impact. A robust service user involvement exercise will help the commissioner to identify any issues. It is advisable to ask question(s) directly aimed at equalities issues. In many cases, it is advisable to take special steps to reach seldom heard groups affected by the decisions: for example, by working with local voluntary, community and faith sector groups and holding meetings in community venues. The more likely a decision is to disproportionately affect a protected group, the more important it is to get feedback from that group about the decision. Undertaking a literature search can also be helpful to see what evidence is available.

The PSED means that the commissioner must consider equalities issues when making decisions. In some cases, there may be a solution that causes less disadvantage to a protected group but for other reasons is undesirable. In these situations, it is important to acknowledge the disadvantage, work towards reducing the negative impact caused and be clear about why the decision was taken. This may include outlining cost concerns. It also makes sense to monitor the situation – for example, to understand if the demographic of service users changes as a result of the decision – and timetable a formal review in, for example, a year’s time.

There are a few themes arising from the cases we have seen on the application of the PSED (and similar duties in previous legislation):

• a need to explicitly recognise that the PSED applies and equalities issues need to be considered
• the duty is an ongoing one – to be considered at all stages of decision-making not just at the end
• a need to be clear about the factors driving a decision, even if these are unpalatable: for example, budgetary pressures
• a need to analyse in some detail the impact of a proposed policy or decision so that the public authority has a clear idea of who is affected and how. Statements of impact need to be supported by evidence where possible
• if a decision is made that will impact negatively on a protected group, that should be acknowledged and the rationale explained
• there should be a detailed consideration as to how any negative impact of the decision could be mitigated. If the steps identified are not practicable, this should be explained
• the duty must be complied with at the time of the decision. Reasoning is rarely allowed after the event, so a record should be made at the time about how equalities issues were considered

The Equality Act 2010 specific duties

In addition to the PSED, NHS England and ICBs are also required to comply with the specific duties contained in the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017.

The 2017 Regulations came into force on 31 March 2017 and replaced the first set of specific duty regulations made in 2011.

The 2017 Regulations among other things require commissioners to publish:

• equality objectives that should be achieved to comply with the PSED (Regulation 5). This had to be done by 30 March 2018 and the objectives need to be updated once every 4 years. ICBs should ensure that they are familiar with NHS England’s equality objectives, which are published on the resource hub

The Equality and Human Rights Commission can, under sections 31 and 32 of the Equality Act 2006, investigate and enforce a failure to comply with the PSED or the specific duties. Alternatively, a failure to comply with the general and specific duties could be challenged by way of judicial review. Such a claim could be brought by a person or group directly affected by a failure to comply with these duties.

Health inequalities duties and the NHS Act 2006 (as amended by the Health and Social Care Act 2012)

Under the Health and Social Care Act 2012 commissioners are required to have regard to the need to:

• reduce inequalities between patients with respect to their ability to access health services
• reduce health inequalities between patients with respect to the outcomes achieved for them by the provision of health service

When making decisions about primary care – particularly about service changes – decision-makers will need to bear in mind the impact on health inequalities. To do this the commissioner will need some data on existing health inequalities, and to consider whether its decision can be used to diminish these. A vast amount of data is available – for example, in joint strategic needs assessments (JNSAs) and RightCare packs – to help commissioners identify health inequalities in their area.

The key point is that the commissioner can show (through documentation, principally an EHIA) that the impact a decision will have on health inequalities has been considered, and that its decision is based on some relevant data and evidence.

NHS England has published resources to assist organisations to find out about information, resources and action being taken to reduce health inequalities in England. Local JSNAs prepared by local health and wellbeing boards, NHS oversight framework indicators and NHS RightCare can be valuable sources of information about local health inequalities.

2.3 The regard duties

The “have regard”, “act with a view to” or “promote” duties under the National Health Service Act 2006 form a loose hierarchy of legal duties:

• the duty to have regard means that when taking actions, a certain thing must be considered
• the duty to promote means action must be taken that actually achieves an outcome. Additionally, it is possible to promote something by encouraging others to do it
• the duty to act with a view to means that action must be taken with a purpose in mind

In contrast to the promotion duties and the view to duties, the regard duties apply to every action of a commissioner where it is carrying out its primary care functions. (Pausing there, the duty will not normally apply to “private law” decisions that would be taken by any private sector organisation: for example, leasing estate.)

The PSED cases are the best guide that we have to how a court would interpret a commissioner’s regard duties under the NHS Act 2006. We can learn from these that:

• Commissioners that have to take decisions must be made aware of their duty to have regard to the various issues outlined in the duties. Failure to do so will render the decision unlawful.
• The regard duties must be fulfilled before and at the time that a particular decision is being considered. If they are not, any attempts to retrospectively justify a decision as consistent with the regard duties will not be enough to discharge them.
• Commissioners need to engage with the regard duties with rigour and with an open mind.
• It is good practice for the decision-maker to refer to the regard duties.
• It is not possible for the commissioner to delegate the duties to another organisation to comply with. This applies in respect of NHS England delegated arrangements for primary care services (see section 1.1 above). NHS England will always have to comply with its duties under the NHS Act 2006, even if an ICB is carrying out commissioning on its behalf. However, it is a requirement of the delegation agreement that ICBs act in such a way that enables NHS England to comply with its duties. If a commissioner acts through contractors, it must ensure as necessary that they act consistently with the duties.
• The regard duties are continuing ones that apply throughout decision-making. It is not enough to only ‘rubber stamp’ a decision by reference to the regard duties at the end of a decision-making process. The regard duties need to be borne in mind throughout.
• It is crucial to keep an adequate record of how the regard duties are considered. If records are not kept it will be more difficult, evidentially, for the commissioner to persuade a court that the duties imposed have been fulfilled.

One key point to understand is that there is no obligation to achieve the object of the regard duties. For example, it is not unlawful not to eliminate health inequalities (although equally, if health inequalities persist and widen, that fact would need to inform consideration of the regard duty). Nor does the commissioner have the luxury of ‘pausing’ the health service while it investigates a health inequality or any other matter. The duties are to have regard, not to achieve perfection, and this is a practical rather than an academic exercise.

Reduce health inequalities

This duty has been discussed in section 2.2 above. It is listed here for completeness as it is one of the regard duties under the NHS Act 2006.

Act with autonomy

NHS England has a statutory duty to have regard to the desirability of allowing others in the healthcare system to act with autonomy and avoid imposing unnecessary burdens on them, so far as this is consistent with the interests of the health service.

Promote education and training

Commissioners have a duty to have regard to the need to promote education and training of those working within (or intending to work within) the health service.

Impact in areas of Wales or Scotland

NHS England has a duty to have regard to the likely impact of commissioning decisions on healthcare delivered in areas of Wales or Scotland close to the border with England. This will clearly be relevant for those working in NHS England regional teams that border Wales or Scotland. NHS England will also need to comply with the duty when making national strategic decisions about the delivery of primary care that affect bordering areas as well as others.

2.4 The promote duties

It is helpful to look next at the promote duties. These are:

• the duty to promote awareness of the NHS Constitution among patients, staff and members of the public (in respect of NHS England, see section 13C(1)(b) of the NHS Act 2006; and in respect of ICBs, see section 14P(1)(b) of the NHS Act 2006)
• the duty to promote the involvement of patients and carers in decisions about their own care (in respect of NHS England, see section 13H of the NHS Act 2006; and in respect of ICBs, see section 14U of the NHS Act 2006)
• the duty to promote innovation in the health service (in respect of NHS England, see section 13K of the NHS Act 2006; and in respect of ICBs, see section 14X of the NHS Act 2006)
• the duty to promote research and the use of research on matters relevant to the health service (in respect of NHS England, see section 13L of the NHS Act 2006; and in respect of ICBs, see section 14Y of the NHS Act 2006)

A decision that is positively contrary to achieving the relevant outcome might breach a promote duty unless there was some compelling reason to adopt it. In this situation, if the decision is being made by NHS England or by ICBs under delegated authority, the NHS England legal team should be contacted for further guidance.

Additionally, some decisions will be obvious opportunities where, for example, patient involvement could easily be promoted. In such cases the safest course of action is to ensure that this is done.

To meet the duty a commissioner does not have to do everything itself – be more innovative, improve its use of research data, etc. It can meet the duty by encouraging other people to do things.

2.5 The view to duties

The view to duties are:

• the duty to act with a view to delivering services in a way that promotes the NHS Constitution (in respect of NHS England, see section 13C(1)(a) of the NHS Act 2006; and in respect of ICBs, see section 14P of the NHS Act 2006)
• the duty to act with a view to securing continuous improvement in the quality of services in health and public health services (in respect of NHS England, see section 13E of the NHS Act 2006; and in respect of ICBs, see section 14R of the NHS Act 2006)
• the duty to act with a view to enabling patients to make choices about their care (in respect of NHS England, see section 13I of the NHS Act 2006; and in respect of ICBs, see section 14R of the NHS Act 2006)
• the duty to exercise its functions with a view to securing that health services are provided in an integrated way where it considers that this would:
• improve the quality of those services (including the outcomes that are achieved from their provision)
• reduce inequalities between persons with respect to their ability to access those services
• reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services

(In respect of NHS England, see section 13N of the NHS Act 2006; and in respect of ICBs, see section 14Z1 of the NHS Act 2006.)

In many ways the considerations for these duties and the promote duties are the same. One difference is that while a promote duty can be met by encouraging others to achieve it, the view to duties can only be met by actions carried out by the commissioner.

The view to duties are less onerous than the promote duties because they do not require the commissioner to achieve a particular outcome (although that would be desirable) – only to do something that aims to achieve it. This contrasts with the promote duties, which require an outcome to be achieved.

The view to duties are most likely to affect strategic decisions taken at directorate level within NHS England. Provided the commissioner can show that within the totality of its activities significant action has been taken with the intention of achieving the outcomes that the commissioner is required to have a view to, the duty is discharged.

As with the promote duties, decision-makers on the ground should be wary of doing something that actively goes against one of the goals set out in the view to duties. In this situation, if the decision is being made by NHS England or by an ICB under delegated authority, the NHS England legal team should be contacted for further guidance. Also, if there is a clear opportunity to help deliver one of the view to objectives, it is best to take it.

2.6 The involvement duty

Under sections 13Q of the NHS Act 2006, NHS England has a statutory duty to “make arrangements” to involve the public in the commissioning of services for NHS patients. This duty is also placed directly on ICBs under section 14Z2.

Section 13Q applies to:

• the planning of commissioning arrangements
• the development and consideration of any proposals that would impact on the manner in which services are delivered to individuals or the range of services available to them
• decisions that would impact on the manner in which services are delivered to individuals or the range of services available to them

The section 13Q duty only applies to plans, proposals and decisions about services that are directly commissioned by NHS England. This includes GP, dental, ophthalmic and pharmaceutical services. However, under delegated authority ICBs must act in a way that enables NHS England to comply with the 13Q requirements.

(The section 14Z2 duty applies in relation to any health services which are, or are to be, provided pursuant to arrangements made by an ICB in the exercise of the ICB’s own functions; that is, commissioning of secondary care.)

Commissioners’ arrangements for public involvement

The statutory duty to “make arrangements” under section 13Q of the NHS Act 2006 is essentially a requirement to make plans and preparations for public involvement.

NHS England has set out its plans as to how it intends to involve the public in the following publications:

• policy on working in partnership with people and communities
• statement of arrangements and guidance on patient and public participation in commissioning
• framework for patient and public participation in primary care commissioning

These publications set out and explain the arrangements NHS England has in place:

• corporate infrastructure – how public involvement is embedded in the way that NHS England is constituted and carries out its business
• involvement initiatives – initiatives designed to involve the public in strategic planning and the development of policy or other aspects of NHS England’s activities
• monitoring arrangements – a step-by-step process to help commissioners identify whether section 13Q applies and decide whether sufficient public involvement activity is already in place or whether additional public involvement is required
• responsive arrangements – guidance to commissioners on how to make arrangements for public involvement where monitoring has indicated that such arrangements are required

As well as setting out the above arrangements, which commissioners should follow, the documentation is regularly reviewed and updated and contains useful resources for commissioners, including:

• details of existing corporate infrastructure and involvement initiatives that could be drawn on by commissioners to involve the public in their commissioning activities
• reference to NHS England’s framework for involving patients and the public in primary care commissioning, which includes resources developed especially for primary care
• resources to help commissioners identify whether section 13Q applies, put in place appropriate arrangements for public involvement and avoid legal challenges
• guidance on a variety of topics that often arise, such as what ‘public involvement’ means, how to involve the public, who to involve, when involvement should take place, urgent decisions and joint involvement exercises
• case studies based on primary care scenarios
• summaries of related legal duties
• details of how to seek further advice if needed

The documentation is intended to be used by both commissioners (that need to understand and comply with the arrangements when commissioning services) and the public (to understand how NHS England involves the public in its commissioning of services). As noted, for ICBs commissioning under delegated authority from NHS England, these arrangements are supplementary to their own requirement to have in place arrangements for public involvement under section 14Z2 of the NHS Act 2006.

2.7 Duty to act fairly and reasonably

Commissioners have a duty to act fairly and reasonably when making decisions. These duties come from case law that applies to all public bodies.

Acting fairly

Normally, to act fairly a commissioner will need to act in accordance with its own policies and relevant policies published by NHS England. For ICBs commissioning under delegated authority from NHS England, this will include NHS England policies concerned with the commissioning of primary care. A commissioner can depart from guidance if there is good reason to do so. In this scenario, the commissioner will need to explain the situation fully to the people and organisations affected and give them a chance to provide their views on the procedure to be followed. This will include why it wants to depart from the usual policy and what it will do instead.

Care should be taken about giving any clear commitments to a particular course of action until the commissioner is sure that it is what it wants to do. If a commissioner is considering departing from a commitment it has given to do a particular thing or follow a particular type of process, then, if the decision is being made by NHS England or by an ICB under delegated authority, the NHS England legal team should be contacted for further guidance.

It is also important to act proportionately, taking into account any adverse impact on patients and/or contractors.

Acting reasonably

The commissioner must take all relevant factors into account when making its decisions and exclude irrelevant factors. It is up to the commissioner how much weight it gives to competing considerations and it may give a factor no weight at all. The key point is that all the relevant factors are identified and documented. The reasons for the commissioner’s decisions also need to ‘stack up’. It is important for the commissioner to document its reasons for a decision as the commissioner needs not only to act reasonably but be able to show that it has acted reasonably by reference to contemporaneous documents. This means that, particularly where a controversial decision is being made, the thinking behind the decision needs to be carefully documented.

2.8 The duty to obtain advice

A commissioner has a duty to “obtain appropriate advice” from persons with a broad range of professional expertise (in respect of NHS England, see section 13J of the NHS Act 2006; and in respect ICBs, see section 14W of the NHS Act 2006).

This means that decision-makers need to collect appropriate information before making decisions. If the commissioner does not have the information it needs, then it should seek appropriate advice. In many cases, it will not be necessary to do this as all the necessary information is to hand.

The duty is most relevant to strategic decisions, where decision-makers will need to document how they obtain advice from those with professional expertise (some of whom may be employees or secondees).

2.9 The duty to exercise functions effectively

The commissioner has a duty to exercise its functions effectively, efficiently and economically (in respect of NHS England, see section 13D of the NHS Act 2006; and in respect of ICBs, see section 14Q of the NHS Act 2006).

This is a statutory reformulation of a duty that has been contained for many years in HM Treasury’s managing public money and its predecessors. If the commissioner has complied with the other duties in this guidance – in particular, the duty to act reasonably – it is highly unlikely that it will breach this duty.

2.10 The duty not to prefer one type of provider

NHS England must not try and vary the proportion of services delivered by providers according to whether the provider is in the public or private sector, or some other aspect of their status (section 13P). ICBs must also act in accordance with this duty when they are commissioning under delegated authority from NHS England.

This means that the commissioner must focus on the services delivered by an organisation and its sustainability. It should not make choices about contractors based solely on their status: for example, company, partnership, public sector, private sector, charity or not for profit organisation.

2.11 Compliance with net zero emission and other environmental targets

The Health and Care Act 2022 introduced a new duty to have regard to the need to contribute towards compliance with section 1 of the Climate Change Act 2008 (UK net zero emissions target) and section 5 of the Environment Act 2021 (environmental targets), and adapt to any current or predicted impacts of climate change identified in the most recent report under section 56 of the Climate Change Act 2008. Commissioners should carry out impact assessments to demonstrate that they have met the obligations of this duty.

Part B: General contract management

3. General ophthalmic services (GOS) contracts

3.1 Introduction

This chapter outlines the characteristics of the GOS contract and when a temporary contract can be placed.

It also describes the operating model for the national contract administrative service that NHS Business Services Authority (NHSBSA) carries out on behalf of a commissioner. This includes end-to-end functions for contract applications, variations and terminations, and involving the commissioner in decision-making at set stages of each process.

3.2 Characteristics of GOS contracts

• Who can hold a GOS contract? Any person or business that is not ineligible under Regulation 4(3) of the GOS Regulations 2008
• Where two or more individuals are practising in partnership, is a GOS contract treated as being made with the partnership? Yes
• Is there a model contract? Yes – model contracts exist for mandatory and for additional services
• Is a GOS contract time limited? No – except in certain circumstances when a temporary contract can be used (see section 3.3: Temporary contracts below)
• Can the commissioner terminate at will? No
• Can a contractor that only holds a mandatory services contract provide domiciliary services? No
• Can a contractor that only holds an additional services contract provide services from a fixed premises? No
• Do the model contracts contain key performance indicators?
• Payment arrangements: The NHS (Optical Charges and Payments) Regulations 2013

3.3 Temporary contracts

A GOS contract usually subsists until it is terminated in accordance with its provisions. A GOS contract can, however, be used for a fixed period where the commissioner has terminated a contract of another provider of GOS and, because of that termination, it wishes to enter into a temporary contract with a known provider for a period specified in the contract for the provision of services. This can be where the commissioner identifies a need for provision in that area and allows the placement of a contract while a full application is undertaken.

Where a temporary contract is entered into, the contract is not required to contain the right for the contractor to terminate at will, but the parties can agree to include such terms as to termination by notice as they may agree.

In addition, contractors are also expected to comply with any temporary operating standards that are introduced from time to time as required to meet the needs of the service.

3.4 National contract management service – operating model

NHSBSA, on behalf of commissioners, administers the processes for new contract applications, individual contract variations and contract terminations. The standard operating procedure (SOP) for contract management details NHSBSA’s operational delivery. This policy book for GOS and the SOP together provide the framework for the delivery of the national contract management service.

NHSBSA manages the administrative processes to completion and provides the point of contact at each stage. It collates all relevant documentation from applicants and contractors, liaises with other delivery partners – for example, Primary Care Support England (PCSE) and NHS Shared Business Services (SBS) – and with the commissioner for decisions and final approvals.

Applicants and contractors can expect to send documents to and receive confirmation and follow-up communications from NHSBSA. All formal application and contractual notices described in the chapters for contract applications, variations and terminations will be signed by the commissioner.

Although administered by NHSBSA, the responsibility for the national contract management service remains with the commissioner and it should ensure it is able to carry out its responsibilities in the application process. Commissioners will make contractors aware that NHSBSA is undertaking the process on their behalf.

As decisions made in relation to the contract and its applications can be disputed, it is essential that the commissioner has robust processes in place for decision-making. This includes maintaining thorough and accurate records of all communications, discussions and actions. The decision-making process should be clear. Any decision or contractual notice should be taken and communicated at an appropriate level as per organisational processes or local scheme of delegation.

4. Contract applications and additional premises

4.1 Introduction

This chapter applies to both mandatory (fixed premises) and additional (mobile or domiciliary) services GOS contract applications.

This policy sets out the general approach to processing applications for new GOS contracts or an additional premises for an existing contractor, including:

• requesting an application
• processing new GOS applications
• process for approving premises (mandatory contracts only), equipment, record-keeping facilities and staffing arrangements
• suitability to hold a contract
• preparing a GOS contract

To ensure that all GOS contracts issued are assured in terms of suitability of contract holder, premises, record keeping and performers within the contract, the following process should be followed.

4.2 Submitting an application

Sections 118 and 119 of the NHS Act set out the persons that may enter into a GOS contract.

Regulations 3 and 4 of the GOS Regulations set out the eligibility criteria that must be satisfied before entering into a GOS contract.

Application forms are available from the NHSBSA website.

The application form to use is determined by the business model of the applicant(s) and the type of GOS contract applied for – mandatory or additional services (or both).

All the required information is included in the standard application:

• Individual or partnership applicants:
  • mandatory services: section A (Application) – see Annex 4.1
  • additional services: section A (Application) – see Annex 4.2
  • mandatory and additional services: section B (Declaration) – see Annex 4.3
• Bodies corporate applicants (Ltd companies and LLPs):
  • mandatory services: section A (Application) – see Annex 4.4
  • additional services: section A (Application) – see Annex 4.5
  • mandatory and additional services: section B (Declaration) – see Annex 4.6

The standard information that must be provided in all GOS contract applications is set out in Schedule 3 of the GOS Regulations.

4.2.1 Partnerships

Regulation 9 of the GOS Regulations requires that, in the case of a partnership, the contract specifies the names of the partners and, in the case of a limited partnership, their status as a general or limited partner; as at least one partner must be a general partner. The applicant must provide this information in the application form so that the commissioner knows who in the partnership has full responsibility and accountability for the business.

The applicant should complete the relevant section A contract application form for either a mandatory or additional services contract or both, plus the section B forms (one copy for each individual entering into the partnership).

4.2.2 Bodies corporate

Where the body corporate applicant is applying for a contract as a limited company, they must state in the application form how many company directors there are, including the company secretary and chief executive. Where the body corporate applicant is applying as an LLP, they must state in the application form how many members are in the partnership.

The applicant should complete the relevant section A contract application form for either a mandatory or additional services contract or both, plus the section B forms (one copy for each director, company secretary and chief executive or member).

NHSBSA will obtain a report from Companies House to check the company is registered with the same directors as identified in section A or members within an LLP (this is free of charge).

NHSBSA should note that in some cases the director of a body corporate may themself be another corporate body. In these circumstances, the body corporate should be treated in the same way as an individual applicant with the relevant section B form being completed. The applicant should also be subject to the same checks, as per this policy, as an individual applicant. NHSBSA should note that obtaining further section B forms from the body corporate’s individual directors is not normally necessary but may be sought if the commissioner has specific concerns.

It may not be immediately obvious which organisational form is relevant, such as when applications are from universities or charities. In these circumstances the most appropriate contract form must be issued. This is usually a body corporate contract, but the model template schedule 1 can be amended as necessary.

4.2.3 Location of services

For mandatory services, the premises from which the GOS are being provided need to be within the boundary of the commissioner awarding the contract. Where the contractor is applying for a contract using a mobile premises, this would need to be a mandatory services contract but the location and timings of the mobile premises each week should be included in the contract.

By exception a mandatory services contract can state the contracted hours as ‘by appointment only’ to allow the management of services. This would generally be where the premises are staffed by a roving team of optometrists and is most common for premises within supermarkets.

For additional services, NHSBSA should note that contractors are not obliged to cover the whole of the commissioner’s area and may provide services across only part of the area. This smaller area does not need to be specified in the contract, but NHSBSA should inform the commissioner of the planned area of coverage by the applicant at the time of application. This is to enable the commissioner to fulfil its duty to ensure that it has providers covering the whole of the commissioner’s geographical area.

4.2.4 Suitability to hold the contract

All applicants must be suitable to hold the contract. The list of those who are ineligible can be found in Regulation 4(3) of the GOS Regulations 2008.

General ophthalmic services are not regulated by the Care Quality Commission (CQC) and do not require a CQC registration.

4.2.5 Use of protected titles

Where an individual, individuals within a partnership, business or ‘trading as’ name includes a protected title, NHSBSA should check that they are entitled to use it (see below). For this reason, the application form requires the business name and/or ‘trading as’ name to be given.

The protected title for an individual, including all individuals within a partnership, is any of the following:

• (registered) optometrist
• (registered) dispensing optician
• (registered) ophthalmic optician
• (registered) optician(s)

A business that is using a protected title in its company name or its ‘trading as’ name requires General Optical Council (GOC) registration to trade. A protected title is any of the following:

• (registered) optometrist
• (registered) dispensing optician
• (registered) ophthalmic optician
• (registered) optician(s)

This also applies to body corporates that are not able to register with the GOC.

The GOC register can be checked at Search Register | GeneralOpticalCouncil.

4.3 Processing new contract applications including additional premises

When the NHSBSA receives a new contract or additional premises application, a contract file should be set up and a progress sheet should be opened and worked through for one of the following:

• individual and partnership applicants (Annex 4.7)
• body corporate applicants (Annex 4.8)

The application form and enclosures should then be checked for completeness by NHSBSA, and any inconsistencies or discrepancies clarified with the applicant.

Applications should be fully completed by the applicant and withstand a common-sense check. They must be accompanied by evidence of appropriate insurance, including clinical negligence, public liability and indemnity. Where the applicant intends to rely on their performers’ clinical negligence insurance, there should be evidence of clinical negligence insurance for each proposed performer.

Disclosure and Barring Service (DBS) checks may be undertaken on applicants for GOS contracts. Commissioners should be prepared to give reasons for feeling a DBS check is appropriate. The DBS check is undertaken and funded by the applicant.

Where the application has a gap of more than 6 months in their careers, NHSBSA must ask for an explanation for the gap(s) and investigate further if necessary to determine suitability to hold a contract. All documentary evidence submitted should be originals. These should be photocopied and the photocopy signed by NHSBSA for the file and the original returned to the applicant.

Where applicants, including directors, chief executives and company secretaries or members, are members of a healthcare profession, NHSBSA must check their professional registration on the relevant registration body website. The records found should be printed and added to the file as a confirmation that the checks have been undertaken.

NHSBSA should check with NHS Counter Fraud Authority (NHSCFA) and NHS Resolution to further establish the applicant’s suitability to be a contract holder.

Where the applicant has not provided all the information, NHSBSA should flag this with the commissioner, and it can decide whether to allow the application to proceed or deny the application.

If there are any issues at this stage, then the approval of the premises, equipment, record-keeping facilities and staffing arrangements should be paused until all satisfactory information has been received.

The commissioner must refuse certain applicants. They are listed in Regulation 4(3) of the GOS Regulations 2008 and NHSBSA should assess the applicant against this Regulation. If the applicant is ineligible to enter into a GOS contract, NHSBSA should seek agreement from the commissioner to cease processing the application at this stage.

4.4 Process for approving premises, equipment, record-keeping facilities and staffing arrangements

The practice visits or additional services check should be undertaken by an appropriately trained member of staff. This could include a contracting manager or an optometric adviser from the commissioner’s primary care team or a representative from NHSBSA.

The practice visits are conducted in 2 parts, contractual and clinical. These are typically scheduled on separate days but can be arranged consecutively by request. The contractual part is carried out by NHSBSA and the clinical part by an optometric adviser, sometimes accompanied by the contracting team. NHSBSA will co-ordinate suitable dates with the relevant parties.

For a mandatory services or new premises applicant, a practice visit must be completed for all the premises included in the application form. This will be a virtual visit in the first instance, unless the commissioner deems otherwise. Following the virtual visit, if there are any concerns, a physical visit to the premises will be arranged.

Applicants applying to provide additional services must present all appropriate equipment and relevant policy paperwork at a location agreed by both parties. This will be a virtual visit, unless the commissioner deems otherwise. Following the virtual meeting, if there are any concerns, a physical visit to an appropriate location will be arranged.

A practice visit protocol is available at Annex 4.9, which covers premises, equipment, record-keeping facilities and staffing arrangements for both mandatory and additional services contracts.

Where there are any concerns following the virtual visit, the commissioner should agree with the applicant a suitable time and place for inspection and approval, such as at a mandatory services contract application premises visit, or for additional services applications at an appropriate venue. At this time the applicant can also be asked relevant questions about their record-keeping facilities and staffing arrangements.

There may be circumstances where the applicant’s proposed premises (mandatory only), equipment, record-keeping facilities or staffing arrangements fall short of those required but not to such a degree as to render the application unsuitable. Relatively minor improvements to the premises, equipment, record-keeping facilities or staffing arrangements can be made and these will then allow the application to be approved.

The commissioner cannot award a contract subject to conditions but should advise an applicant that, if they make the necessary improvements, a contract may then be awarded within a specified period.

The commissioner must not allow an application to remain undetermined for an indefinite period. If an application is left undetermined for longer than 3 months without any evidence from the applicant that they intend to make the requested improvements, NHSBSA should contact the applicant to ask whether they wish to formally withdraw their contract application without prejudice. They would be invited to re-apply once they have carried out the required improvements. Applicants should be advised that any refusal of an application for a contract must be declared in all future applications. Applicants should be given 2 weeks to respond.

Where the applicant does not respond within a reasonable time or is non-compliant, then NHSBSA should confirm with the commissioner that it must formally reject the application. The applicant should be advised of their right of appeal to the Health, Education and Social Care Chamber of the First-Tier Tribunal. The commissioner should decide what constitutes a reasonable time for a response based on the circumstances relating to the application.

4.5 Consideration of suitability to hold a contract

Once all the relevant information and evidence have been supplied, the applicant’s suitability to hold a GOS contract should be determined with a desktop assessment by NHSBSA, and this should include advice from an optometric adviser.

The assessment should take into account the:

• detailed application
• suitability against Regulations 4 and 5
• insurance certificates (clinical negligence insurance and public liability insurance)
• CV checks
• outcome of NHSCFA and NHS Resolution checks
• practice visit
• DBS checks (if completed)

If the assessment raises outstanding matters, NHSBSA should inform the commissioner. It may decide to arrange a meeting with the applicant (virtual or in person) to discuss the matters in more detail.

In accordance with Regulation 4 of the GOS Regulations, the commissioner may refuse an application if it is not satisfied that the applicant:

• has the appropriate premises, equipment or record-keeping arrangements
• will employ or engage appropriate staff, to provide the services under the contract by the date the contract is to start
• is suitable to provide general ophthalmic services (GOS)

Commissioners should ensure that they follow appropriate internal decision-making and reporting processes for their commissioning organisation so that the relevant persons are aware when a new contract application is approved or where the commissioner is likely to delay or refuse a contract application. This is because of the risk of challenge should the commissioner delay or refuse an application. The commissioner should be aware that when it refuses an application, the unsuccessful applicant has the right of appeal, and the commissioner may be required to defend its decision to refuse the application at a hearing before the First-Tier Tribunal.

4.6 Preparing a contract

The model mandatory and additional GOS contracts need to be amended to reflect the type of contractor that will hold the contract. Annex 4.10 sets out the sections of the model contracts that the commissioner is required to amend.

Clauses that are not relevant need to be removed and replaced with the text ‘Reserved’ – for example: “1.1 Reserved”.

Where clauses are deleted that included footnotes, the commissioner should ensure that the footnotes are retained.

This approach to amendments will ensure that the clause numbering and footnotes are preserved throughout the contract. This is particularly important so that, when variation notices are issued, the numbering in the notices mirrors that in the contracts, reducing the workload on the commissioner.

If a contract is not amended as above, the relevant clauses only will be used for contract management (clause 5 of the GOS mandatory and additional services contracts).

5. Contract variations

5.1 Introduction

This policy describes the process for making contract variations due to legislation changes or for individual contracts by mutual agreement across all contracts.

A template contract variation notice is included at Annex 5.1. This can be tailored to fit the requirements of the GOS Regulations. The template also contains guidance notes for completion.

The notice should include a paragraph explaining the change, the date of commencement and the relevant clause changes. The notice should be signed by all parties to the contract.

Annex 5.2 provides a template receipt notice from the contractor and Annex 5.3 a template letter returning the fully signed variation notice to the contractor.

Contract variations for individual contracts are administered by NHSBSA provider assurance ophthalmic (PAO) on behalf of commissioners. This includes processing variation requests and gathering the required documentation and evidence from applicants. It is  authorised to operate within the strict boundaries of this chapter of the policy book. Commissioners will make contractors aware that NHSBSA is undertaking the process on their behalf.

Although administered by NHSBSA, the responsibility for contract variations remains with the commissioner and it should ensure that it is able to carry out its responsibilities in the variation process.

5.2 Decision-making

As decisions made in relation to the contract and its applications can be disputed, it is essential that the commissioner has robust processes in place for decision-making. This includes maintaining thorough and accurate records of all communications, discussions and actions. The decision-making process should be clear, and any decision or contractual notice should be taken and communicated at an appropriate level as per organisational processes or local scheme of delegation.

5.3 Types of contract variation

Variations to contracts fall broadly within 3 categories:

• changes due to legislation changes
• changes to delivery of the services, for example relocation of premises, removal of premises or changes in contracting hours
• changes to the contracting party, for example partnership changes, 24-hour retirement and body corporate changes

This policy provides guidance on these types of contract variations and how to amend contracts that may have varied without being properly recorded.

Both commissioners and contractors are reminded that the overarching aims during any contract variation process are to:

• ensure contracts reflect the reality of provision in accordance with the GOS regulations
• safeguard continuity of patient care
• minimise bureaucracy for both contractor and commissioner while ensuring that contracts and variations are up-to-date and properly recorded

5.4 Amending contracts to reflect previous changes that may not have been recorded

Where the commissioner needs to vary an existing contract, it should take the opportunity to review the contract documentation. All contracts awarded before 1 April 2013 transferred from primary care trusts to NHS England. The commissioner may therefore be faced with a mix of contract documentation.

Where there are multiple documents – for example, the original contract and multiple contract variations – or where there are a number of contracts with the same contractor (based on previous boundaries), the commissioner should consider whether to consolidate the documentation so that a single up-to-date contract is held.

The commissioner must keep a record of any previous contracts that existed and when and how they were varied. This is because referrals can be made to the NHS dispute resolution process for up to 3 years after the event and court proceedings can be issued 6 years after the event. It is essential to maintain a clear record of the terms of all contracts as they were at any previous point in time.

Where the commissioner considers that contract documentation should be consolidated, it should normally use the most up-to-date version of the relevant model GOS contract. This will have been agreed with the professional associations (Association of Optometrists (AOP), The Association for Eye Care Providers (FODO), Association of British Dispensing Opticians ABDO)) on behalf of all contractors.

Consolidation of contracts cannot be done unilaterally and will require the agreement of the contractor as:

• a new contract will need to be entered into
• this will need to be signed by both parties
• the old contact will need to be simultaneously terminated

In such circumstances, the issue of a new contract should not normally require a full new application or a practice visit. A letter from the contractor accepting the commissioner’s proposal to replace the old contract and variations with a new contract incorporating the same, and stating that there have been no other substantive changes to the detail of the old contract should suffice.

Where the commissioner proposes to replace a contract with a model GOS contract, the parties should note that the previous contract may have had provisions (other than those provisions required by the GOS Regulations) that differ from the provisions in the model GOS contract.

If a new contract is not to be issued, the commissioner could consolidate the contract documentation by amending the terms of the original contract in accordance with each variation agreed. This would provide a single ‘at a glance’ reference document indicating only those terms that are presently applicable. It should be noted that such a document will be for reference only. The actual contract is the signed original taken together with the signed variations.

5.5 Legislative changes

Usually, both parties to a GOS contract must agree a variation for it to take effect. The commissioner may, however, vary the contract without the contractor’s consent where it is reasonably satisfied that it is necessary to do so to comply with the NHS Act, any regulatory changes pursuant to the NHS Act or any direction given by the Secretary of State pursuant to the NHS Act. This right is contained in all GOS contracts. Variations due to legislative changes are managed by the commissioner.

The commissioner must notify the contractor in writing of the wording of the variation and the date it will take effect. Where it is reasonably practicable to do so, the date the variation will take effect must not be less than 14 days after the notice is served.

There is no need for the commissioner to seek agreement or require a signature of acceptance for this type of variation, as there is no right of refusal or negotiation.

The process for issuing a variation notice due to legislation or regulatory changes is as follows:

• a regulatory amendment is issued with an indication of when the amendment takes effect
• a variation to the model GOS contracts may be centrally issued but, if not, the commissioner can complete the general contract variation notice at Annex 5.1
• the commissioner notifies contractors of the contract variation and advises contractors to keep a copy with their original contract of which it now forms part
• the commissioner updates all electronically held contracts, retains a copy of the variation notice and ensures the master practice list is updated (managed by NHSBSA). The master practice list must be used by all commissioning organisations

5.6 Service changes

5.6.1 Premises

Mandatory GOS contracts are location dependent – that is, the details of the location from which ophthalmic services are provided are contained in the mandatory services contract. Failure to seek agreement with the commissioner before a change of premises could constitute a breach of contract and may lead to termination of the contract.

A contract variation is required where a contractor intends to do one of the following:

• relocate the premises from which services are being provided
• no longer provide services from a location

An application form for the contract holder to relocate its premises is provided at Annex 5.4. Once received, the commissioner (NHSBSA) should complete and send Annex 5.5 to the contractor.

When the contract is to be varied to change the premises, the commissioner (NHSBSA) must be satisfied as to the suitability of the premises, equipment, record-keeping facilities and staffing arrangements. This should necessitate a visit before the variation is issued. Refer to the policy on contract applications (chapter 4) for more information regarding visits.

Where the contractor is purchasing premises that are already owned by another GOS contractor (which is terminating its contract), the premises should not be visited until ownership has been transferred and the current contract terminated; to have assurance that the premises and equipment that will be used by the contractor are what is available on the practice visit.

If the premises are not found to be suitable but the contractor can carry out actions to make the premises suitable, the commissioner should complete and send Annex 5.6 to the contractor.

If the premises are found to be suitable or the contractor carries out the actions required to make the premises suitable, the commissioner should complete and send Annex 5.7 to the contractor, enclosing 2 copies of the completed contract notice contained at Annex 5.1.

If the premises are not found to be suitable and there are no actions that the contractor can take to make the premises suitable or the contractor was required to carry out actions to make the premises suitable, but the commissioner is not satisfied with those actions, the commissioner should complete and send Annex 5.8 to the contractor.

The contractor cannot submit claims from its relocated premises until the contract variation is fully signed by both parties.

Where the contractor has more than one premises stated within its contract and it intends to no longer provide services from particular premises, the reference to these premises will need to be removed from the contract by way of a variation notice.

The commissioner should complete and send Annex 5.9 enclosing 2 copies of the completed general contract variation notice contained at Annex 5.1. If the contract has only a single premise, this would be a termination of the contract.

5.6.2 Contracting hours

Where a contractor requests to change its GOS hours, this requires a contract variation. The commissioner should complete the general contract variation notice at Annex 5.1 and send it to the contractor with a covering letter.

Where the contractor is requesting a temporary change of contracting hours – for example, due to staffing issues or during a pandemic – the commissioner can acknowledge this in writing without requiring a formal variation to the contract. Where the change is to be temporary, clear timescales for returning to contract hours should be included.

The commissioner will decide what temporary timeframe it will allow (to be acknowledged by letter only) or whether it should issue a contract variation notice.

5.7 Partnership changes

Contracts will require variation where:

• an individual contractor changes to a partnership
• a partnership changes to an individual contractor
• there are changes to the composition of partnerships

5.7.1 Individual to partnership

If a GOS contractor is currently held by an individual who wishes to enter into partnership with one or more individuals, the contractor is required to notify the commissioner in writing and provide the following information:

• the name of the person(s) with whom the contractor proposes to practise in partnership
• whether the person or persons is an ophthalmic practitioner
• confirmation that the person or persons satisfies the conditions imposed by regulation 4 of the GOS Regulations (refer to section 3.2: Characteristics of GOS contracts for further information on Regulation 4)
• an application form completed in accordance with Schedule 3 of the GOS Regulations
• whether or not the partnership is to be a limited partnership and, if so, who is a limited and who is a general partner
• the date on which the contractor wishes to change its status (which shall not be less than 28 days from the date on which the notice was served on the commissioner)

The notice must be signed by the individual contractor and by the person or persons with whom the individual contractor is proposing to practise in partnership.

Where a contractor contacts the commissioner about changing to a partnership, the commissioner should send Annex 5.10 to the contractor. The commissioner should include the relevant application form with this letter. Refer to the policy on contract applications (chapter 4) for details of confirmation to be provided in accordance with Schedule 3 of the GOS Regulations.

On receipt of the information, the commissioner (NHSBSA) must ensure the accuracy of the information provided and that the partner(s) is suitable to hold a contract. This may be achieved by, for example, checking the professional registration status of the proposed partner(s) with the General Optical Council or General Medical Council (as the case may be) and approving their suitability for holding a GOS contract, following the process in section 4.5.

If the commissioner is satisfied that the notice meets the relevant conditions, then the commissioner shall confirm in writing that the contract will continue with the partnership (see Annex 5.11) and issue a contract variation notice (Annex 5.1) accordingly to amend the relevant sections of the contract, including a new Schedule 1. The commissioner must specify in the contract variation notice the date on which the contract will continue as a partnership. Where reasonably practicable, this should be the date requested by the contractor in its initial notice or the nearest date to it.

All partners, including the incoming partner, should sign the contract.

If necessary, the commissioner can withhold the variation notice until all relevant checks have been undertaken with a satisfactory outcome.

The contractor is required to return a signed copy of the contract variation notice. The commissioner should ensure that the electronically held contract documentation is amended accordingly.

If the contractor does not return a signed copy of the variation notice, then the variation does not take effect and the contract continues as an individual.

If the new partner is not accepted as eligible, the commissioner should advise the contractor in writing of the reasons it believes the proposed partner(s) to be ineligible (Annex 5.11) and confirm that the contract status will remain an individual contract holder until the matter can be resolved or the contractor provides a further notice proposing an alternative eligible partner. If the contractor wishes to dispute the decision, it can do so by following the dispute process set out in chapter 9.

5.7.2 Partnership to individual

Where a partnership is dissolved or terminated and the contractor consists of two or more individuals practising in partnership, the contract may continue with one of the former partners provided that they are formally nominated by all partners in the current partnership. Where the change is due to the death of a partner, refer to chapter 7.

The nomination of the former partner by the contractor must:

• be in writing and signed by all the persons who are currently practising in partnership
• specify the date on which the contractor proposes to change its status from that of a partnership to that of an individual
• be provided to the commissioner at least 28 days in advance (where possible) of the date on which the contractor proposes to change its status from that of a partnership to that of an individual
• specify the name of the individual with whom the contract will continue, which must be one of the partners

Where the contractor contacts the commissioner about a change to an individual contractor, the commissioner (NHSBSA) should provide Annex 5.12 for the contractor to complete and return. The commissioner must acknowledge receipt of the information in writing and include the decision as to whether the notification provides all the relevant information required and its agreement or not to the variation (see Annex 5.13).

Where the commissioner agrees the nomination, the commissioner should include a contract variation notice (Annex 5.1) with the acknowledgement. The commissioner may vary the contract but only to the extent that it is satisfied this is necessary to reflect the change in status of the contractor from a partnership to an individual, including a new Schedule 1. This variation notice should be signed by all parties to the contract, including the partner(s) who is leaving the contract.

The commissioner should be satisfied that the arrangements in place for continuity of service provision are robust.

In circumstances where the commissioner is not satisfied that the nominated partner is eligible to hold the contract as an individual, it should state this in the acknowledgement letter (Annex 5.13) and enter into dialogue with all the partners to explore potential solutions as part of the informal process in relation to the dispute process (see section 9.3 for more details).

These circumstances might include the partners nominating an alternative partner to continue with the contract, in which case a new notice should be issued to the commissioner to include these details and a new date proposed on which the changes will occur.

5.7.3 Partnership – composition changes

Where the contractor consists of two or more individuals practising in partnership and the composition of the partnership changes, either by a partner leaving (but without the partnership terminating) or a new partner joining, the contract will need to be amended to recognise the new partnership composition.

Where the contractor informs the commissioner that a partner(s) is leaving the partnership but the GOS contract will remain active with a reduced number of partners, the contract should be varied to reflect these changes.

The notification received should be signed by all the partners to the contract, including those who are leaving the partnership, and should be on headed paper from the partnership.

The variation notice removing the partners must be signed by all partners, ensuring that all partners agree with the proposed partnership change.

Where a contractor contacts the commissioner about a new partner or partners wishing to join the partnership, the commissioner should provide the contractor with Annex 5.14. On receipt of the information, the commissioner must determine whether the new partner fulfils the conditions required.

If the commissioner is satisfied that the conditions are met, a contract variation notice (Annex 5.1) should be included in an acknowledgement letter (Annex 5.15). If the commissioner is not satisfied that the new partner satisfies Regulation 4 of the GOS Regulations, the contractor must remove the new partner within 28 days. If the contractor does not do so, the commissioner must terminate the contract with immediate effect or from such date as the commissioner may specify in the termination notice. This wording is included in the acknowledgement letter at Annex 5.15.

The commissioner should be aware that where the contractor is two or more persons practising in partnership, the commissioner may terminate the contract where one or more persons have left the practice during the existence of the contract. This right of termination only arises where the commissioner, in its reasonable opinion, considers that the change of membership of the partnership is likely to have a serious adverse impact on the ability of either the contractor or the commissioner to perform its obligations under the contract.

If the commissioner intends to use this right of termination, refer to the policy on contract breaches and termination (chapter 6) for further information on this right and on termination generally.

5.7.4 Partnership splits and disputes

Where the contractor to a GOS contract is a partnership and the partnership dissolves due to an internal partnership dispute, the contract will terminate, unless the parties agree for the contract to continue with one partner. The commissioner may have little time to make arrangements to ensure service continuity.

It is, therefore, desirable that the partners of a GOS contract can resolve disputes internally where possible, with the support of the local optical committee (LOC) or mediation services.

If the partnership holding a GOS contract no longer wishes to be a party to the contract, but does not dissolve or terminate the partnership, then the contractor will need to terminate on notice, which must not be less than 3 months unless agreed by the commissioner. Failure to give 3 months’ notice of termination is a breach of contract and the appropriate action may be taken, in line with the policy on contract breaches and termination (chapter 6).

Where partnerships or membership are formalised through a partnership agreement, it is very helpful if the parties rely on the detail of these agreements to support the early resolution of internal disputes and to ensure that such agreements are reviewed and maintained to be current with associated legislation.

Where partnership organisations do not have agreements in place or have insufficient or outdated documents, this can often lead to very protracted and acrimonious disputes between the partners.

The commissioner should not get involved in endeavouring to resolve the dispute between the partners and instead insist that the parties notify the commissioner of their final decision when it is reached.

It is likely that the commissioner will have numerous contacts from different partners and their staff about the dispute, but it should try to maintain a detached position in this respect. Any accusations of inappropriate behaviour or concerns should be considered; however, this should not be used as a means to resolve the dispute.

Throughout the dispute the commissioner should maintain open dialogue with the LOC and implement contract performance management protocols if and when necessary.

5.8 Retirement

5.8.1 Retirement of a contractor – individual

There is no specific reference to retirement in the GOS Regulations. The commissioner should deal with a request to retire as a request to terminate the contract by the contractor.

The contractor must provide the commissioner with a written notification of the intended retirement date, which will be the termination date of the contract. This notice period must not be less than 3 months. If the termination date is not the last calendar day of a month, the contract shall terminate instead on the last calendar day of the month in which the termination date falls. Where agreed by both parties, the contract may terminate earlier.

The model GOS contracts set out the arrangements that must be made on termination of a contract; for more details refer to chapter 6.

5.8.2 Retirement of a contractor – two or more partners/individuals

Where a partner wishes to retire from a partnership, as constituted from time to time, the contractor will need to notify the commissioner that it wishes to vary the contract.

Where the partnership consists of two individuals practising in partnership, the retirement of one partner will result in the contract being held by an individual. The commissioner should refer to section 5.7.2 of this policy.

Where the partnership is more than two individuals, the commissioner should refer to section 5.7.3 of this policy.

5.8.3 Ophthalmic medical practitioner (OMP) contractors – 24-hour retirement

24-hour retirement is a process by which members of the NHS Pension Scheme seek to qualify for their retirement benefits while continuing to work (albeit with a break). This option is available to OMPs who are members of the NHS Pension Scheme. 24-hour retirement usually involves resigning from all involvement in an NHS contract, not returning to the NHS in any capacity for at least 24 hours and not working for more than 16 hours a week in the first month of retirement. The commissioner should ensure that it is aware of the current conditions around 24-hour retirement.

If the commissioner is approached by a contractor wishing to take 24-hour retirement, it must not offer advice relating to pension arrangements.

Where a contractor confirms that 24-hour retirement requires ‘resignation’ from the contract, steps will need to be taken to ensure that the contractor is removed from the contract either by:

• termination on notice in the case of a single-handed contractor
• variation of the contracting party in the case of a partnership as detailed in chapter 6 of this policy book

The commissioner may wish to suggest that individual practitioners take independent advice, as 24-hour retirement using the method described above would necessitate the termination of the contract as set out in chapter 6.

The commissioner must make clear to the contractor that where a contract is terminated, a person may only provide GOS if a new contract has been issued. This application could be done in advance of the planned retirement date to ensure continuity of care.

5.9 Body corporate changes

It is a requirement for a corporate body to notify the commissioner immediately when a new director, chief executive, secretary or member is appointed.

The notice must:

• confirm that the new director, chief executive, secretary or member meets the conditions imposed by Regulation 4 of the GOS Regulations. Refer to section 3.2 on the characteristics of a GOS contract for further information on eligibility requirements
• contain an application form in accordance with Schedule 3 in relation to that person. The application form should be the relevant section B of the application form contained in the policy on contract applications (chapter 4)

The commissioner should carry out checks to ensure the accuracy of the information in the application form. Once the checks are complete, the commissioner will provide a letter of confirmation of the director change(Annex 5.16). As the company officers are not named in the contract, it is not a variation to the contract.

If the checks conducted produce unsatisfactory outcomes in relation to Regulations 4 and 5, then the corporate body should be notified immediately and given 28 days to remove the unsuitable company officer from office. Failing that, the commissioner must terminate the contract immediately. Refer to the policy on contract breaches and termination (chapter 6) for further information on termination.

5.9.1 Incorporation

Where the contractor is an individual or a partnership and wishes to form a body corporate to hold the contract, a variation is not possible. The parties will instead need to terminate the existing contract and the contractor will need to apply for a new contract in the name of the body corporate.

A similar process will need to be followed where a body corporate wishes the contract to be held by a partnership or an individual.

5.10 Bank accounts

A contractor’s bank account should reflect or be in the name of the contractor or legal entity that holds the contract, whether as an individual, a partnership or a body corporate. Bank accounts must not be in a trading name.

Where the business arrangements are such that the bank account is not in the name of the contract holder – for example, because this is a joint venture – then the bank account can be in the name of another organisation if an audit trail is provided showing that both parties agree with the arrangement.

Contractors will be required to submit the following declaration regarding their bank accounts:

• contractor name
• trading name
• address and postcode of practice
• nominated addressee(s) for all financial statements.
• nominated addressee’s email address.
• bank account details
• contractor signature page(s)

A template declaration of banking details is included at Annex 5.17.

Bank accounts with a corporate body must be in the name of the corporate body and not a trading name. If in doubt, the commissioner should check the registered company name at Companies House. While contracts can be held by individuals, it would be expected that the bank account is for a business not a personal account.

As a matter of good practice, where a contract is varied in accordance with this policy (except for changes to new director, chief executive, secretary or member of a body corporate), the commissioner must check with the contractor that payments are being made to the correct account.

Requests to change a bank account should come from all relevant signatories to the contract – that is, all partners to the contract and on headed paper.

Written confirmation of this should be obtained from the contractor.

6. Contract breaches and terminations

6.1 Introduction

This chapter outlines the approach commissioners should take when a GOS contract is considered to have been breached. This policy applies to both mandatory and additional services GOS contracts.

6.2 Decision-making

As decisions made in relation to the contract and its applications can be disputed, it is essential that the commissioner has robust processes in place for decision-making. This includes maintaining thorough and accurate records of all communications, discussions and actions. The decision-making process should be clear and any decision or contractual notice should be taken and communicated at an appropriate level as per organisational processes or local scheme of delegation.

6.3 Contract breaches

Where the commissioner considers that a breach has occurred, there are a number of options for how to proceed:

• take no action
• agree an action with the contractor
• issue a remedial notice
• issue a breach notice
• apply a contract sanction
• terminate the contract

6.3.1 Agree an action with the contractor

The commissioner should attempt to agree an action plan with the contractor for all remedial breaches to enable the contractor to remedy without a formal contractual action. Contract sanctions and terminations must be applied in accordance with the GOS contract stipulations. The decision as to which option to take should be made with regard to all internal processes, compliance with any standing orders and consideration of all relevant factors.

Commissioners should confirm in writing if they are providing a written action plan, including required actions and timescales for completion. Any communication with the contractor should be noted and held on file as this may form part of any evidence of local resolution or be for future consideration of contracting matters.

Where a contract has been breached, the commissioner must decide whether to issue a breach or remedial notice. It is not appropriate to issue both notices for the same breach of the contract.

The commissioner must ensure that when undertaking these matters, it follows the proper internal processes, complies with any standing orders and considers all relevant factors.

Where a commissioner believes the contract has been breached, remedial or breach notices can be issued except where the breach relates to the rights of termination set out below:

• contractor’s inability to perform services
• provision of untrue information
• suitability
• patient safety
• material financial loss
• significant breach

The commissioner has a right to terminate the contract for a breach of any of these conditions but must behave reasonably. These rights of termination are explained in more detail in section 6.6.

The GOS Regulations make a clear distinction between the process to be followed where a breach is capable of remedy and where it is not.

6.3.2 Remedial notice

Where a contractor has breached the contract, and the breach is determined to be capable of remedy, the commissioner may issue a remedial notice to the contractor setting out the actions that must be taken to remedy the breach.

A flowchart highlighting the main steps that the commissioner should take when issuing a remedial notice is set out at Annex 6.1.

A breach capable of remedy is one for which the contractor could take action to stop it. Examples of breaches that may be capable of remedy include:

• lack of sufficiently trained practice staff to deliver point of service checks
• failure to provide relevant information to the commissioner

Where the breach creates a serious risk to patient safety, the commissioner can take more immediate action, regardless of whether the breach is capable of remedy or not. For further information on this, refer to section 6.6.5 of this policy.

Where the commissioner has determined that a breach is capable of remedy, the commissioner must take the following steps:

• the commissioner should contact the contractor to discuss the breach and the action that it may be entitled to take – that is, the issue of a remedial notice
• the contractor should be afforded the opportunity to provide an explanation as to the circumstances that led to the breach and this discussion should be recorded accurately in writing
• the commissioner should investigate the breach, including any details recorded during the contractor discussion that are pertinent to the matter, and examine any evidence in relation to the breach
• if the commissioner is satisfied that the matter is a breach that is capable of remedy, then the commissioner may issue a remedial notice to the contractor, requiring the contractor to remedy the breach

It is important that when the steps above are taken, these are completed as quickly as is reasonably possible. Long delays between the breach occurring, or the commissioner becoming aware of the breach, and the remedial notice being issued could lead to an argument that the commissioner has accepted the breach and waived its right to take action. During the initial stages, if the commissioner decides the breach is significant, it can issue a remedial notice, A remedial notice must specify the following:

• the clause number(s) and text of the clause(s) that have been breached
• details of the breach that led to the remedial notice being issued and any evidence gathered in respect of the breach
• the steps the contractor must take to remedy the breach to the commissioner’s satisfaction
• the period during which the steps must be taken
• any arrangements for reviewing the matter to ensure that the requirements of the remedial notice have been met
• the actions that the commissioner shall take if the contractor fails to satisfactorily remedy the breach
• dispute rights of the contractor

A template remedial notice is provided at Annex 6.2. The finalised remedial notice should be signed off by the appropriate person within the commissioning organisation.

The period during which the steps to remedy the breach must be taken must not be less than 28 days from the date that notice is given, unless the commissioner is satisfied that a shorter period is necessary to protect the safety of the contractor’s patients or protect the commissioner from material financial loss.

The remedial notice must be delivered to the contractor in accordance with the notice provisions of the contract. This usually requires hand delivery or postal delivery (first class or registered post). Delivery of a notice email may be permissible. Where sent by email it must be confirmed in writing either by post or personal delivery. The commissioner should review the relevant provisions to the contract to ensure proper delivery. Where the notice is hand delivered, the template receipt notice at Annex 6.3 can be used.

The commissioner should ensure that arrangements are in place to follow up a remedial notice appropriately and in a timely fashion. A declaration of remedy should be sought from the contractor to confirm its compliance.

Where the commissioner is satisfied that the contractor has taken the required steps to remedy the breach within the required period, the commissioner should issue a letter to the contractor informing it that the terms of the remedial notice have been satisfied and that no further action will be taken at this stage, but the breach remains on file. A template remedial notice satisfaction letter is provided at Annex 6.4.

Where the commissioner deems that the contractor has not taken the required steps to remedy the breach by the end of the required notice period, the commissioner may inform the contractor that it has failed to meet the terms of the remedial notice and that the commissioner may terminate the contract with effect from such date as the commissioner may specify in a further notice to the contractor.

Where the commissioner intends to terminate the contract, refer to sections 6.6 to 6.8 of this chapter.

If, following the issue of a remedial notice, a contractor either repeats a breach that was the subject of a remedial notice or otherwise breaches the contract and this resulted in a further remedial notice or a breach notice, the commissioner then has the right to terminate the contract by serving notice on the contractor.

The right to terminate in section 6.3.1 above must only be used where the commissioner is satisfied that the cumulative effect of the breaches is such that the commissioner considers that to allow the contract to continue would be prejudicial to the efficiency of the services to be provided under the contract. Where the commissioner intends to terminate the contract under this right, refer to section 6.4.

If the contractor is in breach of any obligation and a remedial notice is being issued, the commissioner may as part of that notice withhold or deduct monies that would otherwise be payable under the contract in respect of that obligation which is the subject of the default.

Where the contractor disputes the commissioner’s decision to issue a remedial notice, the contractor may invoke the dispute resolution procedure as outlined in its contract. In such circumstances, the commissioner should follow the policy on managing disputes (chapter 9).

6.3.3 Breach notice

Where the contractor has breached the contract and it is not capable of remedy, the commissioner may serve a breach notice on the contractor stating what has been breached and requiring the contractor not to repeat the breach.

A flowchart highlighting the main steps that the commissioner should take when issuing a breach notice is set out at Annex 6.5.

Breach notices cannot be issued where the breach relates to the rights of termination set out in section 6.6. For further information on these rights of termination, refer to section 6.6 of this policy.

A breach that is not capable of remedy is one where a breach has occurred but stopped prior to a notice being issued or there is no action that can be taken to remedy the breach.

Examples of breaches that are not capable of remedy include:

• failure to maintain patient records
• failure to ensure GOC registration for a performer

Where the breach creates a serious risk to patient safety, the commissioner can take more immediate action, regardless of whether the breach is capable of remedy or not. For further information on this, refer to section 6.65 of this policy.

Where the commissioner has determined that a breach is not capable of remedy, the commissioner must take the following steps:

• the commissioner should contact the contractor to discuss the breach and the action that it may be entitled to take – that is, the issue of a breach notice
• the contractor should be afforded the opportunity to provide an explanation as to the circumstances that led to the breach and this discussion should be recorded accurately in writing
• the commissioner should then investigate the breach, including any details recorded during the contractor discussion that are pertinent to the matter, and examine any evidence in relation to the breach
• if the commissioner is satisfied that the matter is a breach that is not capable of remedy, then the commissioner may issue a breach notice to the contractor, requiring the contractor not to repeat the breach

If the commissioner decides the breach is significant it can issue a breach notice at any point in the process.

A breach notice must specify the following:

• the clause number(s) and text of the clause(s) that have been breached
• details of the breach(es) that led to the breach notice being issued and evidence gathered in respect of the breach(es)
• details of the breach and the requirement that the contractor must not repeat the breach
• the consequences of the contractor breaching its agreement again
• dispute rights of the contractor

A template breach notice is provided at Annex 6.6. The finalised breach notice should be signed by the appropriate person in the commissioning organisation.

The breach notice must be delivered to the contractor in accordance with the notice provisions of the contract. This usually requires hand delivery or postal delivery (first class or registered post). Delivery of a notice by email may be permissible. Where sent by email it must be confirmed in writing either by post or personal delivery. The commissioner should review the relevant provisions to the contract to ensure proper delivery. Where the notice is hand delivered, the template receipt notice at Annex 6.3 can be used.

If, following the issue of a breach notice, a contractor either repeats a breach that was the subject of a breach notice or otherwise breaches the contract in such a way that results in a further remedial notice or a breach notice, then the commissioner has the right to terminate the contract by serving notice on the contractor.

This right to terminate can only be used where the commissioner is satisfied that the cumulative effect of the breaches is such that the commissioner considers that to allow the contract to continue would be prejudicial to the efficiency of the services to be provided under the contract. Where the commissioner intends to terminate the contract under this right, refer to section 6.6.7 of this policy.

If the contractor is in breach of any obligation and a breach notice is being issued, the commissioner may as part of the notice withhold or deduct monies that would otherwise be payable under the contract in respect of that obligation which is the subject of the default.

Where the contractor disputes the commissioner’s decision to issue a breach notice, the contractor may invoke the dispute resolution procedure as outlined in its contract. In such circumstances, the commissioner should follow the policy on managing disputes (chapter 9).

6.4 Termination

Termination is a very significant action to take both on the part of the commissioner and the contractor, given that any decision to terminate a contract can be challenged by the contractor under appeal. It is essential that, where the commissioner is initiating the termination, it follows, and can demonstrate that it has followed, due process in investigating, communicating and implementing actions in this respect and that it has acted reasonably throughout.

Termination is an area of high risk for both parties in respect of financial impact and availability of services. It is essential that the commissioner maintains thorough and accurate records of all communications, discussions and decision-making in respect of all notices.

Commissioners should maintain accurate records of all actions and, if requested, will be required to demonstrate evidence of compliance or otherwise support oversight of general ophthalmic commissioning arrangements.

It is essential that prior to moving to terminate a contract, the commissioner is satisfied that it is fully within its rights to do so.

Legislation sets out certain rights of termination that are required to be in a GOS contract. These mandatory termination rights are set out below and explained more fully in section 6.6. Where the termination relates to a matter that is contained in an alternative policy, this is highlighted.

The commissioner should consider the relevant contract to ensure it is fully aware of all termination rights.

The following circumstances relating to rights of termination are required to be in a GOS contract:

• agreement of the parties
• death of a contractor
• contractor serving notice
• late payment by the commissioner
• contractor’s inability to perform services
• provision of untrue information
• suitability
• patient safety
• material financial loss
• significant breach by the contractor
• remedial notices and breach notices
• carrying on business detrimental to the contract
• where a person connected with the contractor is the subject of a direction under section 13F of the Opticians Act 1989 or an order under section 13H of the same Act
• where changes in membership of the partnership are likely to have a serious adverse impact on the ability of the contractor or the commissioner to perform obligations under the contract

Contracts may also terminate by reaching their natural end dates, if relevant.

Where the commissioner has considered all the relevant factors and has decided to proceed with termination, it must send a termination notice to the contractor.

The termination notice must specify:

• the clause number(s) and text of the clause(s) that have given rise to the right to terminate
• details including the evidence of the clause(s) that have given rise to the right to terminate
• dispute rights of the contractor
• a date on which the contract will terminate

A template termination notice is provided at Annex 6.7.

Where the commissioner serves notice to terminate, the notice must specify a date on which the contract will terminate that is not less than 28 days after the date on which the commissioner has served the notice on the contractor. The commissioner may state a date less than 28 days where this is necessary to protect the safety of the contractor’s patients or protect the commissioner from material financial loss.

Where the contractor disputes the commissioner’s decision to terminate the contract, the contractor may invoke the dispute resolution procedure. In such circumstances, the commissioner should follow the policy on managing disputes (chapter 9).

6.5 Key considerations on termination

The commissioner must establish that grounds exist under the terms of the contract to terminate. The commissioner must follow due process, investigate the facts and afford the contactor the opportunity to provide a response to allegations, wherever possible.

Where the commissioner has determined that grounds exist, the commissioner must take the following steps:

• the commissioner should contact the contractor to discuss the grounds under which it may take contractual action – that is, termination
• the contractor should be afforded the opportunity to provide an explanation as to the circumstances and this discussion should be recorded accurately in writing
• the commissioner should investigate by examining any evidence including any details recorded during the discussion with contractor that are pertinent to the matter
• if the commissioner is satisfied that there are grounds to terminate, a termination notice must be sent

There may be occasions where it is not appropriate to initially contact the contractor about issues and this will be decided on a case-by-case basis.

The commissioner must consider all relevant information available and decide on the appropriate course of action and whether the contract should be terminated.

Apart from considerations regarding whether the right to terminate arises, the commissioner should consider a number of common factors when termination is a proposed course of action. These factors are set out below.

This list is not exhaustive and there are likely to be other issues that need due consideration under these provisions. These considerations will also apply following the sudden death of a contractor. Refer to the policy on the death of a contractor (chapter 7).

6.5.1 General duties of commissioners

Commissioners have a number of statutory duties relating to the exercise of their functions including reducing health inequalities and patient involvement. The commissioner must ensure that its actions in terminating a contract and any consequential actions ensure compliance with its general duties. Refer to the chapter 2: General duties of commissioners for more information on the scope of the duties.

6.5.2 Patient records and practice closure

The requirement to store patient records appropriately survives the termination of the contract and this should be managed appropriately. For further details on managing this process, see section 6.8.1 and chapter 11.

6.5.3 Informing stakeholders

If the commissioner has proceeded to terminate a GOS contract, it must ensure that key stakeholders are advised of the termination. The key stakeholders involved in GOS contractual processes are as below:

• Primary Care Support England (PCSE). On termination of a contract the commissioner must advise PCSE so that payments to the contractor can cease
• NHS Business Services Authority (NHSBSA). NHSBSA should be advised so that any delegated processes can be terminated
• the ODS team at NHS England should be informed so that they can cancel the ODS code associated with the contractor

6.6 Rights of termination

The termination rights in the contract will fall into 3 main categories, as agreed by the contractor and the commissioner.

1. Termination with agreement of the parties. GOS agreements are required to contain a provision stating that both parties may agree to terminate a contract.

Where the parties agree to terminate, they must agree the date from which termination will take place and any further terms relating to the termination. Before agreeing the termination date, the commissioner should ensure any proposed timescale allows the commissioner to consider any other factors or actions that may be required prior to termination.

The contractor party may be composed of more than one person. The commissioner must agree the same termination arrangements with all persons that constitute the contractor.  Commissioners should use Annex 6.7 Template Termination Notice.

2. Termination due to death of a contractor. Refer to the policy on the death of a contractor (chapter 7) for further information. In all circumstances the consequences on termination apply.

3. Termination due to the contractor serving notice. The contractor can terminate a GOS contract by serving notice in writing at any time. Contractors should use Annex 6.8.

Where a contractor serves notice to terminate, it shall terminate 3 months after the date on which the notice is served.

If the date on which the contract will terminate is not the last calendar day of a month, the contract shall instead terminate on the last calendar day of the month in which the termination date falls.

The individual termination rights are set out below.

6.6.1 Termination due to late payment

The contractor may give notice in writing to the commissioner if the commissioner has failed to make any payment due to the contractor under the contract. If the commissioner has failed to make any such payment within 28 days of the notice, the contractor may terminate the contract by a further written notice.

Where the NHS dispute resolution procedure has been invoked by the commissioner and the contractor has been informed of this within 28 days of the initial notice, the contractor may not terminate the contract until either the NHS dispute resolution determination allows termination or the commissioner ceases to pursue the dispute resolution process.

For further information on the NHS dispute resolution process, refer to the policy on managing disputes (chapter 9).

6.6.2 Termination due to the contractor’s inability to perform services

The commissioner must terminate the contract where the contractor is an individual who is an ophthalmic practitioner and is suspended by the licensing body or suspended from an ophthalmic performers list.

The requirement to terminate only arises where the suspension leads to the contractor ceasing to be able to perform as an ophthalmic practitioner.

The requirement to terminate will not apply where:

• the contractor can satisfy the commissioner that adequate arrangements are in place for the provision of services under the contract for as long as the suspension lasts
• the commissioner is satisfied that the circumstances of the suspension are such that, if the contract is not terminated immediately, the safety of the patients is not at serious risk and/or the commissioner is not at risk of material financial loss

6.6.3 Termination due to the contractor’s provision of untrue information

The commissioner may serve notice to terminate the contract immediately (or from any date set out in the notice) if, after the contract has been entered into, it comes to the attention of the commissioner that written information:

• provided to the commissioner before the contract was entered into
• provided to the commissioner pursuant to paragraph 17(2) (partnership) or 18(2) (body corporate) of Schedule 1 of the GOS Regulations; and
• which should have been notified under paragraphs 16 to 18 of Schedule 1 of the GOS Regulations

in relation to:

• Regulation 4 of the GOS Regulations
• suitability information in Schedule 3 of the GOS Regulations; or
• compliance with those conditions or that information

was, when given, untrue or inaccurate in a material respect.

An additional right of immediate termination arises where the information that was not notified but should have been notified under paragraphs 16 to 18 of Schedule 1 of the GOS Regulations was material.

6.6.4 Termination due to the contractor’s unsuitability

The commissioner may serve notice in writing on the contractor terminating the contract immediately (or from any date set out in the notice) where a person or body connected with the contract (such as an individual, a partnership or a body corporate) falls within any circumstances set out in the GOS Regulations. Those circumstances include where the person or body:

• has been disqualified, removed from or refused admittance onto various licensing bodies
• has been convicted of certain offences
• has been adjudged bankrupt or insolvent (for more information on the consequences of termination due to insolvency, refer to section 6.7)
• has been subject to a disqualification under the Company Director Disqualification Act 1986

The full list of circumstances is set out in Schedule 1 of the GOS Contracts Regulations 2008 at paragraph 44.

6.6.5 Termination due to patient safety

The commissioner may serve notice in writing on the contractor terminating the contract immediately (or from such date set out in the notice) where the contractor has breached the contract and, because of that breach, the safety of the contractor’s patients is at risk if the contract is not terminated.

6.6.6 Termination due to material financial loss

The commissioner may serve notice in writing on the contractor terminating the contract immediately (or from such date set out in the notice) where the contractor’s financial situation is such that the commissioner considers that it is at risk of material financial loss.

6.6.7 Termination due to significant breach by the contractor

The commissioner may serve notice in writing on the contractor terminating the contract immediately (or from such date set out in the notice) where the contractor has breached the contract and, in the commissioner’s judgement, that breach is so significant that it is inappropriate that the contract should continue.

6.6.8 Termination due to remedial notices and breach notices

The commissioner has rights of termination where, following the issue of a remedial notice or breach notice, a contractor:

• fails to remedy the breach that forms the remedial notice
• repeats a breach that was the subject of a remedial notice or breach notice
• otherwise breaches the contract that results in a remedial notice or breach notice

To terminate due to a new breach (repeat or otherwise), the dates of the first breach notice and the new breach need to occur in a chronological timeline. If, due to delays with reporting or investigation, the new breach happened prior to the first breach notice, this cannot be used to terminate the contract.

This right to terminate can only be used where the commissioner is satisfied that the cumulative effect of the breaches is such that the commissioner considers that to allow the contract to continue would be prejudicial to the efficiency of the services to be provided under the contract or patient safety.

6.6.9 Termination due to the contractor carrying on business detrimental to the contract

Where the contractor is carrying on business that the commissioner considers is detrimental to the contractor’s performance of the contract, the commissioner may give notice to the contractor requiring that it ceases carrying on the relevant business within a specified period (which must not be less than 28 days from the date the notice was given).

Where the contractor has not satisfied the commissioner that it has ceased carrying on the business by the end of the notice period, the commissioner may by further written notice terminate the contract immediately (or from such date set out in the notice).

6.6.10 Termination where a person connected with the contractor is the subject of a direction under section 13F of the Opticians Act 1989 or an order under section 13H of the same Act

Where the contractor is either:

• an individual who is a registered optometrist
• a partnership and one of the partners is a registered optometrist
• a corporate body or a director, chief executive or the secretary of that body is a registered optometrist

and is the subject of a direction under section 13F of the Opticians Act 1989 or an order under section 13H of the same Act, the commissioner may serve notice in writing on the contractor terminating the contract if the commissioner considers that, as a consequence, the contractor is no longer suitable to be a contractor.

6.6.11 Termination where changes in membership of the partnership are likely to have a serious adverse impact on the ability of the contractor or the commissioner to perform obligations under the contract

A commissioner has a right to terminate a GOS contract:

• where the contractor is two or more persons practising in partnership
• where one or more partners has left the practice during the contract
• if the commissioner reasonably considers that the change in membership of the partnership is likely to have a serious adverse impact on the ability of the contractor or the commissioner to perform its obligations under the contract

Where this occurs, the commissioner may terminate the contract by notice in writing on such date as is set out in the notice. The notice must contain the commissioner’s reasons for considering that the change in the membership of the partnership is likely to have a serious adverse impact on the ability of the contractor or the commissioner to perform its obligations under the contract.

6.7 Termination of contracts following insolvency

The right to terminate a contract following insolvency is not a clause in its own right but the right to terminate will fall out of one of the above rights.

Where an individual or company ceases to trade and where the individual or company is a GOS contractor, it is likely not to satisfy the conditions imposed by Regulation 4 of the GOS Regulations. In such circumstances, the commissioner must serve notice on the contractor, terminating the contract forthwith.

The commissioner may not be informed about the insolvency until it has happened.

Any residual payments due to the contractor in relation to the period before the contract was terminated should be made as instructed by the administrator or receiver.

6.7.1 Sale of viable practices

The administrator or receiver of an insolvent company may attempt to keep the company trading and seek a buyer for some or all the optical practices. The administrator or receiver may be unaware that, depending on circumstance, the commissioner may be unwilling to continue the GOS contract while the company remains in administration or receivership.

Where a viable practice is sold to a company or individual, the new provider will be required to make a new GOS contract application. Such a new contract application will be subject to the usual requirements (refer to the policy on contract applications (chapter 4) for further information).

Where the application is successful, there may be a period during which the practice does not have a GOS contract, meaning it may not treat NHS patients either by carrying out GOS sight tests or by issuing NHS optical vouchers.

These practices may however continue to trade in the private sector.

6.7.2 Winding up arrangements

Insolvency practitioners have as a primary duty to maximise the pay-out to creditors. The winding-up processes are likely to concern the supply of uncollected glasses and arranging the safe storage of patient records or their transfer to another local contractor. The commissioner may need to work closely with the administrator or receiver to ensure that the winding-up arrangements are carried out appropriately and in the best interests of the former NHS patients of the insolvent contractor before making any remaining payments due under the contract.

6.7.3 Introduction to voluntary strike off and dissolution of companies

An application for voluntary striking off can only be made by a company and must be made on the company’s behalf by its directors or a majority of them.

The company directors will apply on the company’s behalf to the register at Companies House to be struck off the register and dissolved. They do this by completing a ‘striking off application by a company’. Form DS01 is available on the Companies House website.

The reasons a company may wish to do this include:

• directors wish to retire and there is no one to take over from them
• business model has not worked out for the contractor
• business is non-trading or dormant
• business no longer wishes to keep the company name

The company is required to meet certain criteria to be eligible to apply for voluntary striking off. One of the conditions is that a company must not have traded or otherwise carried on business at any time in the last 3 months.

6.7.4 Termination of contracts following dissolution of a company

Contractors often are not aware that dissolving a company automatically leads to the termination of a GOS contract, as the legal entity that holds the contract is no longer in existence.

When a company is planning to apply to be struck off, this would usually be an ideal time to submit a termination notice to the commissioner giving 3 months’ notice, although a shorter timescale may be reached if both parties agree.

Where the individual(s) plans to provide NHS services from the same premises but in another organisational form, they will need to submit a new contract application. If they begin providing NHS services without a new contract in place, they will need to be informed that as they do not have a contract in place to provide NHS services, they must stop and that any claim for payment received will not be authorised.

Further information on processing new contract applications is available in the policy on contract applications (chapter 4).

Where a commissioner becomes aware a company is no longer trading, the contract will need to be terminated as set out in this policy.

6.8 Consequences of termination

Contracts usually contain certain obligations on both parties on termination of the contract. The GOS Regulations do not set out any requirements for contracts to contain such provision, but the model GOS contracts contain a number of obligations including provisions relating to:

• ceasing performing any work or carrying out any obligations under the contract
• co-operating with the commissioner to enable any outstanding matters under the contract to be dealt with or concluded satisfactorily
• co-operating with the commissioner to enable service users looking to use the contractor’s services to be transferred to one or more other contractors or providers of mandatory services (or mobile services as the case may be)

On termination of the contract, the commissioner will perform a reconciliation of the payments made by the commissioner to the contractor and the value of the work undertaken by the contractor under the contract. The commissioner must then serve the contractor with written details of the reconciliation as soon as reasonably practicable, and in any event no later than 28 days after the termination of the contract.

Each party shall pay the other any monies due within 3 months of the date on which the commissioner served the contractor with written details of the reconciliation, or the conclusion of any NHS dispute resolution procedure or court action.

6.8.1 Patient records and practice closure

When a GOS contract terminates the usual practice is for the patient records to transfer to either a new contract at the same address or to another practice or contractor. Commissioners should note that the GOS contractor owns the patient records, not the patient or the individual optometrist. As the contractor owns the patient records, if a patient makes a request for their records to be transferred elsewhere, they have the right to obtain a copy of their record. However, the contractor must retain the original records. The records are also not the property of the commissioner, although it does have the right to inspect or remove records from the practice.

When a practice closes it can:

• retain the patient records. Under the terms of the GOS contract, practices must retain patient records for 7 years; so the outgoing contractor may decide to retain the practice records. If it does so, then it should ensure the storage and access arrangements are in line with the UK General Data Protection Regulations (UK GDPR) requirements. This will need to be confirmed by the commissioner as part of its responsibilities
• arrange to securely transfer the records to another practice or contractor. The new practice should write to the patients informing them it now holds their records. This applies even if the practice address has not changed
• offer the records to the commissioner if it is unable to transfer the records to another practice or retain them

If a practice decides to change the way it processes patient data, then it must conduct a data protection impact assessment (DPIA). This is a legal requirement and should be undertaken if the practice moves from a manual system of holding records to an electronic one. A failure to complete the DPIA can expose the practice to significant risk of enforcement action. See chapter 11 for further details.

6.8.2 Responsibilities of commissioners

Under normal circumstances patient records will transfer between practices in the event of practice closure. However, it remains the responsibility of the commissioner to take possession of patient records if this does not take place.

Commissioners should ensure that records are transferred in a timely and secure manner from the practice and that secure storage is available either on site or with a third-party contractor.

For the full obligations under information governance, refer to chapter 11.

6.9 Contract sanctions

As an alternative to termination of the contract, contract sanctions may be applied instead, but the commissioner must already be in a position of preparation and willingness to move to terminate. The commissioner cannot apply contract sanctions and later decide to terminate the contract on the grounds of the same contract termination rights.

The circumstances in which the commissioner may apply contract sanctions are those set out under the commissioner’s right to terminate the contract (see section 6.6).

Such sanctions may involve:

• termination of specified reciprocal obligations
• suspension of specified reciprocal obligations for a period of up to 6 months
• withholding or deducting monies otherwise payable under the contract

As the only reciprocal obligation in the contract is the provision of an NHS sight test and the payment for it, the termination of specified reciprocal obligations would in effect terminate the contract and therefore it is not appropriate to use this as a sanction.

The choice of which contract sanction to use would ordinarily depend on the nature of the right to terminate and what is felt to be the most appropriate and proportionate action in the circumstances.

Where the commissioner decides that the most appropriate sanction would be to withhold or deduct monies, these must be calculated in accordance with set criteria to establish a consistent, fair and measured approach. Annex 6.9 provides further information on calculating a financial contract sanction.

Where the commissioner decides to impose a contract sanction, the commissioner must issue a notice of its intent to apply a sanction to the contractor, which must include:

• the clause number(s) and text of the clause(s) that have given rise to the right to terminate
• details, including the evidence of the clause(s) that has given rise to the right to terminate
• confirmation that the action will be a contract sanction
• the nature of the sanction
• if withholding or deducting monies, how this has been calculated and the duration of any such sanction
• if services are to be terminated, which services and from what date
• if suspension of specified reciprocal obligations under the contract or agreement, the period of that suspension and its end date
• an explanation of the effect of the imposition of the contract sanction
• the contractor’s right to appeal the decision to apply a contract sanction
• dispute rights of the contractor

A template contract sanctions notice is provided at Annex 6.10. The finalised contract sanction notice should be signed off by the appropriate person in the commissioning organisation.

The date that the contract sanction takes effect must not be until at least 28 days after the notice was served unless the commissioner is satisfied that it is necessary to impose the contract sanction earlier to protect the safety of patients or protect the commissioner from material financial loss.

Where a contract sanction is imposed, the commissioner can charge the contractor reasonable administration costs for imposing the contract sanction.

If the contractor disputes the imposition of a contract sanction, the commissioner must not impose the contract sanction until the dispute has been determined unless the contract sanction is necessary to protect the safety of patients or protect the commissioner from material financial loss.

Where a dispute arises in relation to the imposition of a contract sanction, refer to the policy on managing disputes (chapter 9).

The commissioner should ensure that arrangements are in place to monitor the contractor’s compliance with a contract sanction notice.

7. Death of a contractor

7.1 Introduction

The aim of this policy is to provide consistency when dealing with the death of a contractor.

This policy applies to both mandatory (fixed premises) and additional (mobile or domiciliary) GOS contracts held by:

• an individual and/or others in partnership
• a limited company or limited liability partnership

7.2 Decision-making

As decisions made in relation to the contract and its applications can be disputed, it is essential that the commissioner has robust processes in place for decision-making. This includes maintaining thorough and accurate records of all communications, discussions and actions. The decision-making process should be clear and any decision or contractual notice should be taken and communicated at an appropriate level as per organisational processes or local scheme of delegation.

7.3 Individual

Where a GOS contract is with an individual and that individual dies, the contract must terminate at the end of the period of 28 days after the date of the contractor’s death unless before the end of that period:

• the commissioner has agreed in writing with the contractor’s personal representatives that the contract should continue for a further period, not exceeding 3 months after the end of the 28-day period
• the contractor’s personal representatives have notified the commissioner that they are employing one or more ophthalmic practitioners to perform ophthalmic services under the contract throughout the period for which it continues

If the above option is exercised, the commissioner should issue a confirmation letter setting out the timescales of the continuation (Annex 7.1).

Where the commissioner understands that another contractor may wish to enter into a contract in respect of the services that were provided by the deceased, the 3-month period may be extended by a period not exceeding a further 3 months (6 in total) as may be agreed.

At the end of this period the contract must terminate and the commissioner can award a new contract based on any approved application that has been received in relation to that premises. Where a family representative wishes to continue to provide services, this will require a full application.

7.4 Partnership

The GOS Regulations state that where the contract is with two or more individuals practising in partnership, the contract shall be treated as made with the partnership as it is from time to time constituted.

The default position in partnership law is that every partnership is dissolved as regards all the partners by the death of any partner. The partners can, however, change this position and agree between themselves that the partnership will not dissolve on the death of any partner. It is likely that most partnerships will have dealt with this issue in their partnership agreement to avoid termination of their contract.

The GOS Regulations require GOS contracts to contain specific provisions relating to the dissolution of partnerships.

Where a partner dies, the GOS Regulations distinguish between GOS contracts that are entered into with a contractor that consists of only two individuals practising in partnership and those GOS contracts where the contractor consists of more than two individuals.

7.4.1 Two individuals practising in partnership

Where the contractor consists of two individuals practising in partnership and the partnership is dissolved or terminated due to the death of one of the partners, the surviving partner must notify the commissioner as soon as is reasonably practicable of the death of their partner.

Where the commissioner receives such a notice, it must acknowledge receipt of the notice in writing (Annex 7.2).

The contract will continue with the surviving partner. The commissioner may vary the contract but only to the extent that it is satisfied this is necessary to reflect the change in status of the contractor from a partnership to an individual. The commissioner must notify the contractor in writing of the wording of the proposed variation and the date on which that variation is to take effect. A variation agreement will need to be included with this letter. The family representative of the deceased partner does not need to sign the variation documentation.

To provide assurance that the individual can meet the contractual obligations, the commissioner should discuss continued service delivery options with them, bearing in mind the size of the practice, the range of services provided and any potential capacity issues.

7.4.2 More than two individuals practising in partnership

Where there are more than two individuals practising in partnership, the death of one of the partners may result in the partnership being dissolved. This may not always be the case as the partnership arrangements between the partners may state that the partnership will continue or make other provision on the death of a partner that does not result in the dissolution of the partnership.

Where the partnership is not dissolved or terminated, the contract will continue and the provisions below will not apply provided that the partnership remains eligible to hold the GOS contract. Refer to section 3.2: Characteristics of GOS contracts for more information on eligibility requirements. A variation notice will be issued to remove the deceased partner and leave the remaining partners as signatories to the contract. The family representative of the deceased partner does need to sign the variation documentation.

Where the partnership agreement does not allow for the continuation of the partnership, it is possible for the contract to continue where a partnership of more than two individuals practising in partnership is dissolved or terminated for whatever reason (which may be due to the death of a partner) and the contractor consists of more than two individuals practising in partnership. The contract may continue with one of the former partners provided the former partner is nominated by the contractor.

The nomination of the former partner by the contractor must be:

• in writing and signed by all the persons who are practising in partnership
• specify the date on which the contractor proposes to change its status from that of a partnership to that of an individual
• be provided to the commissioner at least 28 days in advance of the date on which the contractor proposes to change its status from that of a partnership to that of an individual
• specify the name of the individual with whom the contract will continue, which must be one of the former partners

Where the commissioner receives such a nomination, it must acknowledge receipt of the notice in writing before the date specified in the nomination as the date on which the contractor proposes to change its status from that of a partnership to that of an individual (Annex 7.3).

The commissioner may then vary the contract but only to the extent that it is satisfied this is necessary to reflect the change in status of the contractor from a partnership to an individual. The commissioner must notify the contractor in writing of the wording of the proposed variation and the date on which that variation is to take effect. A variation agreement will need to be included with this letter.

Where there is no agreement between remaining partners to nominate a partner, the contract will need to terminate –refer to chapter 6, section 6.4 for details.

7.5 Limited company or limited liability partnership

Where a contract is entered into with a body corporate, company limited by shares or a limited liability partnership (LLP), it is not possible for the entity itself to die in the way that an individual contractor might die. It is possible for company officers to die, such as a director or the company secretary. In these circumstances the company’s articles of association should stipulate the consequences. It is likely that the articles will require the shareholder(s) to appoint a new director.

Where there is a sole director, they may also be the sole shareholder. If this is the case, the articles will likely require the personal representatives of the shareholder to, by notice in writing to the commissioner, appoint a person to be a director.

The commissioner must be informed of any changes to the make-up of the company, including new company officers or limited partners, to ensure they are suitable to hold a GOS contract. Where they are suitable, there will be no change in the contract, but a file note of the new company officers will be held. If they are not found to be suitable, the contract must be terminated.

7.6 Non-continuation or termination of the contract

Where the contract is not to be continued, the commissioner will need to terminate it. Refer to the policy for terminations (chapter 6) for further information on considerations relating to terminating a contract.

8. Adverse events

8.1 Introduction

Adverse events are dealt with in the force majeure provisions of the mandatory (fixed premises) and additional (mobile or domiciliary) services model GOS contracts. Although these provisions are not required by the GOS Regulations, the model GOS contracts include them.

8.2 Decision-making

As decisions made in relation to the contract and its applications can be disputed, it is essential that the commissioner has robust processes in place for decision-making. This includes maintaining thorough and accurate records of all communications, discussions and actions. The decision-making process should be clear and any decision or contractual notice should be taken and communicated at an appropriate level as per organisational processes or local scheme of delegation.

8.3 Contract wording

Clauses 201 to 204 of the model GOS contracts states that:

“201. Neither party shall be responsible to the other for any failure or delay in performance of its obligations and duties under this Contract which is caused by circumstances or events beyond the reasonable control of a party. However, the affected party must promptly on the occurrence of such circumstances or events:

201.1. notify the other party of such circumstances or events and of what obligation or duty they have delayed or prevented being performed; and

201.2. take all action within its power to comply with the terms of this Contract as fully and promptly as possible.

202. Unless the affected party takes such steps, clause 201 shall not have the effect of absolving it from its obligations under this Contract. For the avoidance of doubt, any actions or omissions of either party’s personnel or any failures of either party’s systems, procedures, premises or equipment shall not be deemed to be circumstances or events beyond the reasonable control of the relevant party for the purposes of this clause, unless the cause of failure was beyond reasonable control.

203. If the affected party is delayed or prevented from performing its obligations and duties under the Contract for a continuous period of 3 months, then either party may terminate this Contract by notice within such period as is reasonable in the circumstances (which shall be no shorter than 28 days).

204. The termination shall not take effect at the end of the notice period if the affected party is able to resume performance of its obligations and duties under the Contract within the period of notice specified in accordance with clause 203 above, or if the other party otherwise consents.”

An adverse event is one that is caused by circumstances beyond the reasonable control of either the commissioner or the contractor to either avoid or mitigate with reasonable care and where the event has had a material effect on the fulfilment of the contract.

Examples of events that may invoke the force majeure provisions are:

• fire
• flood
• severe weather conditions for which precautions are not ordinarily taken to avoid or mitigate the impact (for example, a hurricane)
• industrial action that significantly affects the provision of public services or services on which the party is reliant
• death of a significant performer or close relative
• pandemic disease or circumstances that might otherwise be considered “an act of God”
• war
• civil war (whether declared or undeclared)
• riot or armed conflict
• radioactive, chemical or biological contamination
• pressure waves caused by aircraft or other air-borne devices travelling at sonic or supersonic speed
• acts of terrorism
• explosion

Examples of events that would not be considered force majeure events are:

• refurbishment of practice premises
• adverse weather in the winter months (including snow and ice)
• planned events (including elective surgery, leave, weddings and similar events)
• long-term sickness, maternity, paternity or adoption leave

8.4 Contract compliance

All contractors are obliged under the terms of their contracts to notify the commissioner within 3 working days of a force majeure event, detailing the cause or event, what service provision is being delayed or prevented and what action(s) within their power they are taking to comply with the terms of the contract as fully and promptly as possible.

Failure to notify the commissioner will mean that the contractor is not absolved from its obligations under the contract and may be considered in breach of its contract.

Neither party will be responsible to the other for any failure to or delay in performing its obligations and duties under the contract when this is caused by an event of force majeure, where notified to the commissioner in a timely manner.

A template notification is provided at Annex 8.1, which the commissioner can send to the contractor for completion, and an acknowledgement letter is provided at Annex 8.2.

8.5 Clinical governance and risk management or delayed resolution

If the force majeure results in a failure to deliver services that is significant and poses a risk to patient safety or the efficiency of wider primary care services, the commissioner may wish to consider recording the incident on the risk register or consider whether it may invoke its termination rights.

If the service provision is delayed or prevented for a continuous period of 3 months, then either party may terminate the agreement by notice in writing within a period that is reasonable (and no less than 28 days). This termination will not take effect where the service is resumed within the period of notice or if the contractor consents to this.

8.6 Appeals

The parties should refer to the policy on managing disputes (chapter 9) for the process in relation to dispute.

8.7 Payments

The parties should discuss the effect of force majeure on payments by the commissioner to the contractor. The commissioner should use its reasonable discretion in determining payments with regard to the need for the contractor to continue to provide services once it is no longer affected by the force majeure event, provided the contract has not been terminated.

9. Managing disputes

9.1 Introduction

This policy describes the process to resolve and determine disputes between a GOS contractor and the commissioner. It applies to both mandatory and additional contracts.

9.2 Decision-making

As decisions made in relation to the contract and its applications can be disputed, it is essential that the commissioner has robust processes in place for decision-making. This includes maintaining thorough and accurate records of all communications, discussions and actions. The decision-making process should be clear and any decision or contractual notice should be taken and communicated at an appropriate level as per organisational processes or local scheme of delegation.

9.3 NHS or non-NHS contracts

The commissioner must first ascertain whether the contract is an NHS contract or a non-NHS contract. This is set out in clause 14 of the standard GOS contracts. It is the contractor’s choice as to whether it takes health service body (NHS contract) status or not.

An NHS contract (as set out at section 9 of the NHS Act) is an arrangement under which one health service body arranges for the provision of goods or services to another health service body. It does not give rise to contractual rights or liabilities.

A non-NHS contract, on the other hand, is a normal legally binding contract that can be enforced through the courts.

Contractors have the option to be regarded as a health service body and hence have an NHS contract under Regulation 10 of the GOS Regulations.

Where a contractor has chosen to be regarded as being a health service body, its contract will be an NHS contract. Where a contractor has chosen not to be regarded as a health service body, its contract will be a non-NHS contract. Health service body status affects the eligibility and application process for NHS dispute resolution.

9.3.1 Dispute resolution routes

There are 2 different routes that can be taken for resolving contractual disputes, depending on the contractor’s health service body status.

Where the contractor is a health service body and the contract is an NHS contract, the steps laid out in this policy must be used to resolve all matters of dispute. The parties may not take a claim to court in relation to the contract.

Where the contractor is not a health service body and the contract is a non-NHS contract, then the contractor can choose that the dispute either be resolved using the process described in this policy or using the court system. The commissioner can ask for the dispute to be managed via the NHS dispute resolution process but cannot enforce this on the contractor.

The use of the court system can be an expensive and public route. In normal circumstances, non-health service bodies may therefore choose to follow NHS dispute resolution instead.

Where the parties have followed this policy and the NHS dispute resolution procedure to the end determination, the result is binding. A referral to the court system for a further ruling on the same issue cannot be made other than to enforce the decision as having the status of a county court judgment or to seek judicial review of the process.

9.4 Managing disputes – informal process

The GOS contract states that the parties must make every reasonable effort to communicate effectively about any issue of dispute and must co-operate with each other to resolve the matter before considering referral to the formal dispute resolution procedure.

The use of an informal resolution process helps develop and sustain a partnership approach between contractors and the commissioner.

The informal process may include (but not be limited to):

• regular telephone communications
• face-to-face meetings at a mutually convenient location
• written communications

It should be possible to resolve most disputes at the informal stage, before a formal notice or decision has been made, or within the formal timeframe for requesting local resolution (as below) and either party may wish to involve the relevant professional representative body (for example, an optical professional membership association or local optical committee, LOC) to help achieve resolution.

9.5 Managing disputes – stage 1 (local dispute resolution)

The timescales set out in this stage 1 are indicative only. The commissioner should ensure any timescales used are appropriate to the circumstances. Regardless of timescales, the parties must ensure that every reasonable effort to communicate and co-operate with each other is made prior to invoking stage 2 of the NHS dispute resolution procedure.

Where a dispute arises, the commissioner should refer to the relevant policy that covers the issue giving rise to the dispute to check that due process has been followed.

Where the contractor invokes the dispute process, the dispute must go through local dispute resolution, even if the informal process has already been undertaken. Local dispute resolution must be undertaken regardless of which dispute route is undertaken. Both parties must make every reasonable effort to communicate and co-operate with each other prior to invoking the first stage of the formal dispute resolution process.

The contractor should notify the commissioner of its intention to dispute one or more decisions made in relation to its contract. This notification should usually be received no later than 28 days after the commissioner advises the contractor of its decision, except in exceptional circumstances.

The commissioner will immediately cease all action in relation to the disputed notice or decision and until there has been a determination of the dispute and that determination permits the commissioner to impose the planned action or the contractor ceases to pursue the NHS dispute resolution procedure or court proceedings, whichever is the sooner.

In some cases, the commissioner may deem it necessary to terminate the contract or impose a contract sanction before the NHS dispute resolution procedure is concluded to protect the safety of the contractor’s patients or protect itself from material financial loss.

The commissioner is entitled to terminate the contract or impose the contract sanction at the end of the period of notice it served in accordance with the GOS Regulations (refer to the policy on contract breaches and termination (chapter 6) for more information).

9.5.1 Process for stage 1 (local dispute resolution)

The commissioner should acknowledge the notification of dispute within 7 days of receipt and request the submission of supporting evidence from the contractor within a further 28 days from the date the contractor receives the letter. An example acknowledgement letter is provided at Annex 9.1.

On receipt of the evidence, the commissioner should review the evidence and invite the contractor to attend a meeting, which can be a virtual meeting. This should be as soon as possible and in any event within a further 28 days. The contractor can invite a representative body to support them at the meeting: for example, a professional representative body or LOC. An example invitation letter is provided at Annex 9.2.

The person(s) making the decision at the meeting as to whether the dispute has been resolved at local resolution must not be the same person who managed the local resolution process.

Once the meeting has been held, the commissioner should notify the contractor in writing of the outcome of the meeting, whether this is that the dispute has been successfully resolved (refer to the example stage 1 outcome letter at Annex 9.3) or that it will now need to be moved to stage 2 of the NHS dispute resolution procedure (refer to the example stage 1 outcome letter at Annex 9.4).

Where the matter is resolved, the issue can now be deemed as closed, and the commissioner should document the outcome accordingly on the contract file. All records of the dispute should be retained on the contract file.

Where the matter remains unresolved, the process may be escalated to the next stage of the dispute resolution procedure.

In all outcomes the commissioner should document the outcome on the contract file.

Where the matter is to be escalated to the next stage of the dispute resolution procedure, the commissioner should ensure that the contract file is in order in case NHS Resolution or the court requests submission of evidence in respect of the dispute.

A guidance note on the dispute process can be found on the NHS Resolution website and a checklist for commissioners can be found at Annex 9.5.

9.6 Managing disputes – stage 2 (NHS dispute resolution procedure)

The informal process of resolution at stage 1 must be exhausted before proceeding to stage 2 of the process. The commissioner or a contractor wishing to follow this route must submit a written request for dispute resolution to NHS Resolution, which carries out the NHS dispute resolution functions of the Secretary of State under the GOS Regulations. The request must include:

• the names and addresses of the parties to the dispute
• a copy of the contract
• a brief statement describing the nature and circumstances of the dispute

The request should also include:

• what the applicant sees as the appropriate outcome of the dispute
• confirmation that all local dispute resolution options have been exhausted

The written request for dispute resolution must be sent within 3 years from the date on which the matter giving rise to the dispute occurred or should have reasonably come to the attention of the party wishing to refer the dispute.

The commissioner will be required to prepare documentation, evidence and, potentially, an oral presentation in response to evidence presented in support of the dispute.

When providing the evidence for NHS Resolution the commissioner should:

• meet all deadlines set out by NHS Resolution
• clearly set out the viewpoint of the commissioner
• provide a chronology of events including:
  • its decision
  • the point at which the decision was made
  • the rationale for the decision
  • the consideration of alternative approaches
• provide documentation that supports the approach it took and reference this

The parties should be aware of the preparation that may be necessary if evidence is required by NHS Resolution, as all records pertaining to the contractor in question may be requested, including (but not limited to):

• all contract documentation and contract variations.
• all written correspondence (both to and from the commissioner and the contractor)
• any electronic correspondence that may have passed between the parties in relation to the dispute

This process will benefit from a clearly recorded contract file.

Each party will be asked to prepare representations on the dispute, which will be circulated to the other party, and given an opportunity to provide observations on the other party’s representations. Again, the observations of each party will be circulated to the other party.

The commissioner must ensure that records of communications and contract files are maintained to a high standard and all documentary evidence is collated correctly prior to submission to NHS Resolution.

Once NHS Resolution has reached a conclusion (the determination), the parties will receive a copy and will be required to act on it. Following a determination in late 2020 by the Court of Appeal, NHS Resolution now considers awarding interest in relation to costs associated with the appeal. However, NHS Resolution will only consider awarding interest if claimed by a party when the application for dispute resolution is lodged or raised by the other party. Further guidance can be found on this on NHS Resolution’s website.

Further information on the details that should be provided in an application for dispute resolution can be found in the guidance note that NHS Resolution issued in March 2021.

NHS Resolution publishes up to 3 years’ worth of past decisions on its website, which includes the considerations and determinations of each case.

A dispute management checklist is available at Annex 9.5.

9.7 Other dispute resolution procedures

9.7.1 Non-NHS route

Where the contractor is not a health service body and chooses to raise a dispute via the court system, the commissioner will need to respond to communications via the contractor’s solicitors if appointed.

The commissioner may also raise a dispute with the contractor and will need to follow the processes outlined above.

9.7.2 Prior to contract award

Eligibility. Disputes may also arise prior to a contract being entered into. Such disputes may relate to the eligibility of the person seeking to enter into the contract or contract terms.

Where the commissioner is of the view that a person seeking to enter into a contract does not meet the eligibility conditions (for eligibility conditions, see section 3.2: Characteristics of GOS contracts), the commissioner must notify the person in writing.

This notice must state the commissioner’s view of the person’s eligibility, the reasons for that view and guidance on the person’s right of appeal.

Where the commissioner has issued such a notice, the recipient of the notice has a right of appeal to the First-Tier Tribunal (Care Standards).

Contract terms. Before a GOS contract is entered into, there may be a dispute with the other party about a term of the proposed contract. This will be rare as it is preferable to use the relevant model GOS contracts.

10. Contract assurance

10.1 Introduction

This policy sets out the assurance framework process for GOS mandatory (fixed premises) and additional (mobile or domiciliary) contracts. It sets out the approach that the commissioner needs to follow to ensure a consistent approach to contract assurance including:

• the timescale for an information request
• the process for a practice visit including premises, equipment, record-keeping facilities and staffing arrangements for mandatory contracts

10.2 Conflict of interest

The commissioner needs to ensure that any conflict of interest issues concerning the optometric adviser(s) involved in the assurance process are managed. See section 2.10 for further details.

10.3 Timescales for assurance process

Paragraph 14 of Schedule 1 of the GOS Regulations obliges a contractor to provide the commissioner with any information that is reasonably required by the commissioner for the purposes of, or in connection with, its GOS contracts or any other information that is reasonably required in connection with the commissioner’s functions. This requirement includes access to the contractor’s NHS patient records.

The GOS contract assurance procedure is an important part of the commissioner’s duty of assuring high quality GOS to patients.

All GOS contractors are required to comply with the Quality in Optometry (QiO) Level 1. QiO is a national quality assurance toolkit  used by optical practices to assess their compliance with their GOS contracts and to assure, maintain and improve the services they provide.

The commissioner should ask all contractors to submit the completed QiO checklist once every 3 years. Commissioners should seek the agreement of their local optical committee (LOC) if they wish to take a phased approach. An example checklist is available at Annex 10.1. While completing the checklist, contractors can make notes beneath each question and these will appear on the final report. The dashboard for the checklist will indicate how many questions remain unanswered, as well as how many are compliant, non-compliant or not applicable.

The contractor must also submit a checklist of evidence and a practice declaration (Annex 10.2) to demonstrate its compliance status. The contractor is not required to submit the evidence itself, which should be retained in the practice and can be confirmed at the practice visit if necessary.

The contractor should within 8 weeks return all completed checklists to the commissioner to allow the commissioner to identify risks and benchmark all contractors.

10.4 Contracting entities

Where a contractor has submitted its QiO checklist but from this it is unclear what organisational form the contractor is (individual, partnership, corporate body) or the information given does not match the known contractual form of the contractor, then the commissioner should do the following:

• contact the contractor to ask it to clarify
• check the contractor’s GOS contract to see what organisational type of contract has been issued

If the QiO does not match the contract or the commissioner is still unclear, the form should be returned to the contractor for clarification. Any inconsistencies between the contractor and contract type should be clarified and rectified as soon as possible.

The commissioner should note the responses from the contractor as these may indicate the wrong contract type has been applied for or issued or that changes may have occurred without informing the commissioner.

10.5 Action plans for non-compliance

Where a contractor identifies sections in the QiO checklist where it is non-compliant, it is required to submit an action plan (see Annex 10.3) to the commissioner that addresses each of these areas. The commissioner should acknowledge the contractor’s action plan using the template letter at Annex 10.4.

The plan will set out the section(s) where the contractor is not compliant together with a proposed timescale for ensuring compliance. The contractor should include any evidence to support its action plan. The timescale for completion should usually be 28 days from checklist submission but this can be amended by agreement.

The commissioner will review the checklist and confirm any action plans. The commissioner may request further clarification from the contractor if required: for example, if further information is required regarding timescale or the content of the declared evidence.

The commissioner should follow up any outstanding actions if evidence of completion has not been submitted before the deadlines set out in the action plan.

Throughout this process the commissioner should be mindful of the nature and degree of any non-compliance and consider whether this is sufficiently serious to merit issuing a breach or remedial notice. Refer to the policy on contract breaches and termination (chapter 6) for further information on remedial notices and breach notices.

10.6 Criteria for visiting an optical practice

During the 3-year contract assurance cycle the commissioner should prioritise the following for visits:

• practices that have not complied with the data submission, submission of an action plan or the action plan
• practices where there are concerns about contract delivery as identified by activity concerns, key performance indicators or other information

The commissioner should also visit an additional 5% of contractors selected at random.

In accordance with paragraph 19 of Schedule 1 of the GOS Regulations, the commissioner must write to the contractor in advance of the visit, giving the contractor reasonable notice. A template letter can be found at Annex 10.5. A contract assurance visit should normally last no longer than 1–2 hours and can be carried out by either virtual appointment or an in-person practice visit.

The visiting team should include a member of the commissioning team and an optometric adviser. Written evidence of the authority of the person seeking entry must be produced on request to the contractor. A practice checklist is provided at Annex 10.2.

If the contractor is unable during a visit to produce the necessary documentation and/or demonstrate that a policy or procedure is in place but had indicated compliance in its QiO checklist, the commissioner will check the reason for this and assess the seriousness of the omission. Depending on that assessment, the commissioner may:

• require the contractor to produce the documentation within 7 days
• issue a breach or remedial notice
• refer for post payment verification (PPV)
• initiate performance procedures

Following the practice visit, the commissioner will write to the contractor summarising the visit (see template letter at Annex 10.6). Any actions agreed during the visit will be detailed in an action plan together with timescales (see Annex 10.3 for template action plan). The timescales for completing actions will be agreed between the commissioner and contractor. All actions should be completed within 28 days unless an alternative timescale is agreed.

The commissioner should write to the contractor to acknowledge a returned action plan using the template at Annex 10.4.

10.7 Non-compliance – process for contractual action

There may be circumstances where the commissioner will need to take contractual action to ensure compliance. These circumstances could include:

• failure to submit a declaration form
• failure to complete identified actions
• patterns of non-compliant behaviour

In these circumstances the commissioner will need to consider using the range of contractual actions available under the GOS Regulations. These include:

• remedial/breach notices
• contract sanctions
• contract termination

Before using any of the above, the commissioner should make reasonable efforts to engage with the contractor to resolve the identified issue.

For further information on the issuing of contractual notices, refer to chapter 6.

11. Information governance

Commissioners need to be aware of both the responsibilities of GOS contract holders and their own responsibilities in respect of the UK General Data Protection Regulation (UK GDPR). Practices should be meeting the terms of UK GDPR and this can be monitored via the assurance cycle (as per this chapter).

UK GDPR sets out the key principles for the management and processing of personal data, including patient records. It must be considered in the context of other data protection legislation, such as the Data Protection Act.

11.1 The responsibilities of optical practices

Each GOS contractor is classified as a data controller and must comply with all the legislation and policy relating to the management of personal data. This includes the following points.

Contractors must have a nominated data protection officer (DPO). The DPO must be aware of the requirements of UK GDPR and be accountable to the senior levels of its organisation. They must also have sufficient knowledge and expertise to be able to fulfil the DPO function.

Each practice must determine how and why personal data is processed. This should include a data audit.

Each practice should, at a senior level, ensure that data processors are compliant with UK GDPR. This includes having signed contracts in place with any organisation that stores data on its behalf.

The practice should have a subject access request policy in place that reflects UK GDPR timescales, charging and how requests are made.

The practice must have a privacy notice displayed in the practice or on its website. This should include details of the data controller, what data is processed and how long it is kept for, the purpose of and basis for processing the data, the rights available to individuals in respect of the processing and if data is shared with anybody.

The practice requires consent from patients to send them marketing information.

The practice must have a policy on how it responds to data breaches.

The practice should also advise how patients can lodge a complaint with the Information Commissioner’s Office (ICO).

11.2 Patient records and practice closure

When a GOS contract terminates, usual practice is for the patient records to transfer to either a new contractor at the same address or to another practice or contractor. Commissioners should note that the GOS contractor owns the patient records, not the patient or the individual optometrist. The records are also not the property of the commissioner,although it does have the right to inspect or remove records from the practice.

When a practice closes it can:

• retain the patient records. Under the terms of the GOS contract, practices must retain patient records for 7 years; so the outgoing contractor may decide to retain the practice records. If it does so, then it should ensure the storage and access arrangements are in line with UK GDPR requirements. This will need to be confirmed by the commissioner as part of its responsibilities
• arrange to securely transfer the records to another practice or contractor. The new practice should write to the patients informing them that it now holds their records. This applies even if the practice address has not changed
• offer the records to the commissioner if it is unable to transfer the records to another practice or retain them

If a patient requests for their records to be transferred elsewhere, they can be given a copy, but the contractor must retain the original records.

If a practice decides to change the way it processes patient data, then it must conduct a data protection impact assessment (DPIA). This is a legal requirement and should be undertaken if the practice moves from a manual system of holding records to an electronic one. A failure to complete the DPIA can expose the practice to significant risk of enforcement action.

11.3 Duty of confidence

Information relating to an individual’s health is classed as special category data under UK GDPR (requiring a higher level of justification to process this data) and is covered by the duty of confidence (confidentiality).

Local commissioning organisations can seek advice on confidentiality and UK GDPR compliance from their local information governance team or Caldicott Guardian (where identifiable patient clinical information is intended to be used for a purpose the patient may not expect).

11.4 Responsibilities of the commissioner

The commissioner is responsible for ensuring that GOS contractors comply with UK GDPR and data protection legislation. This is normally completed as part of the assurance cycle but, in the event of any identified data breaches, the commissioners should be prepared to satisfy itself that the contractor has taken appropriate action in terms of reporting the breach to the ICO and to prevent a reoccurrence.

Under normal circumstances patient records will transfer between practices in the event of practice closure. However, it remains the responsibility of local commissioners to take possession of patient records if this does not take place. 

Commissioners should ensure that records are transferred in a timely and secure manner from the practice and that secure storage is available either on site or with a third-party contractor.

Should the records remain with the commissioner for 3 months and there is no indication of a new practice taking possession of the records, then it is the responsibility of the commissioner to write to patients advising that it has taken possession of the records. Commissioners should ensure that they consult their local information governance team and Caldicott Guardian should this become necessary.

12. Post payment verification

12.1 Introduction

This policy outlines the approach for post payment verification (PPV). All GOS contractors and suppliers of optical appliances can be included in PPV sampling.

PPV checks are necessary to give the commissioner a level of assurance that the GOS claims are being paid in accordance with NHS regulations. GOS contractors are entitled to submit payment claims for completed sight tests using GOS 1 and 6 forms. Partly funded sight tests are claimed using GOS 5 forms.

Contractors and suppliers are entitled to make payment claims for optical vouchers that patients have redeemed with them. These are payments made outside the GOS contract and are claimed via GOS 3 and 4 forms. As these are payments made by the commissioner to the contractor or supplier, they are also subject to the PPV process.

For the purposes of this policy the term contractors is used to indicate those holding a GOS contract and are dispensing only.

The PPV process is open, transparent and supportive. Commissioners, NHSBSA and contractors will treat each other with respect and understanding and with the purpose of gaining assurance that:

• there are adequate procedures for recording services provided to patients
• there is a satisfactory understanding and application of the Primary Ophthalmic Services (POS), GOS and Optical Charges and Payments (OCP) Regulations in respect of submission of each claim type
• systems exist to prevent errors and omissions in the claims submitted
• the funds paid for inappropriately claimed services are recovered and, where the contractor has claimed below a clinically justifiable value, funds are reimbursed
• feedback is provided to contractors on the accuracy of their claims and areas where they could make improvements

From April 2019 PPV as a policy function has been administered by NHSBSA on behalf of NHS England and is referred to as NHSBSA PAO. Commissioners will make contractors aware that NHSBSA is undertaking the process on their behalf.

Although administered by NHSBSA, the responsibility for PPV remains with the commissioner and it should ensure it is able to carry out its responsibilities in the PPV process.

The primary aim of the PPV process is to verify claims against regulations and guidance. Assurance of the quality of the service provided is managed by a separate assurance process (see chapter 10 for more details). However, during the PPV process some issues may come to light that may lead to contractual action by the commissioner.

12.2 Conflict of interest

The commissioner needs to ensure that any conflict of interest issues involving the optometric adviser(s) or local eye health network chair involved in the PPV process is managed. See section 2.10 for further details.

12.3 Roles and responsibilities

The role of the contractor, should it be included in the sample for PPV, is to respond to requests for evidence in a timely manner and take appropriate steps to address any potential feedback.

The role of commissioners is to review the contractor shortlist and provide feedback around suitability, including referrals as required.

The role of the relevant Counter Fraud Team is to review the contractor shortlist and provide feedback around suitability, including referrals as required.

The role of the NHSBSA Insight Team is to:

• deliver the monthly sampling methodology
• remove any contractors that have been excluded by the commissioner
• send the contractor shortlist to the commissioners and Counter Fraud and amend shortlist in line with their comments

12.4 Identifying contractors for PPV

The collection of GOS data from the ophthalmic payment system informs the PPV review. Summarised GOS data is made available to commissioners and contractors through the electronic ophthalmic system (eOPS) reporting tool. To register for eOPS, email eopssupport@nhsbsa.nhs.uk.

A range of risk-based metrics have been developed to identify contractors for PPV. These metrics are flexible and subject to change. The current metrics are available on the NHSBSA website.

A quarterly review of data will identify the highest outlying practice for each metric in each regional cluster of integrated care boards (ICBs) and a ranking report will be generated and sent to the commissioner and NHS Counter Fraud. This ranking will be based on the number of claims a practice makes for a metric as a percentage of the total GOS forms submitted for payment.

The commissioner and NHS Counter Fraud will use this report to decide which contractors to included in the PPV review for the quarter. It is likely that only the highest outlier practice will be selected for PPV review against each metric, thus avoiding unreasonable burden from requesting evidence across several metrics at the same time. If a practice is an outlier on more than one metric, the next highest practice for each metric will be identified for a PPV review.

However, there may be valid reasons why practices appear as an outlier: for example, those located in areas of deprivation are likely to submit a higher ratio of GOS 3 to GOS 1 and 6 forms. Commissioners are therefore encouraged to use their knowledge of local population demographics and consider mitigating circumstances in the selection process. Other sources of information, such as complaints or audits, could also be used to identify practices for review.

On the request of the commissioner or NHS Counter Fraud teams, a smaller number of metrics may be reviewed but with more practices reviewed against each of these metrics or as a follow-up to policy changes.

Practices that have had a PPV review in the previous 12 months will be monitored for behaviour change and where necessary will be reselected for PPV review. This should be after 12 months but may be sooner if required.

On the request of the commissioner or NHS Counter Fraud teams, specific contractors may be excluded from the process at the outset. This would be by exception and due to separate investigations being undertaken.

12.5 PPV process

Contractors will be informed by letter that they have been identified for a PPV review and what the next steps are.

12.5.1 Sample size

A standard number of claims will be sampled for each practice against the identified metric, drawn from claims made in the last 24 months. Each metric has a prioritised list of risk scenarios (available on the NHSBSA website) and the sampled claims will be taken in order of that list until the full sample requirements are met.

The claims sample may be extended to up to 6 years where more claim records are required. Previous PPV reviews will be taken into account when assessing timescales.

On occasion the practice may not fulfil the total sample size. The next identified practice in the ranking report would then also be included in the PPV review for that metric.

12.5.2 Request for evidence

The letter to contractors will list the patient records required to verify the claims and the evidence required to be submitted. Acceptable evidence of claims will include any, but not all, of the following documents:

• patient attendance records or appointment books
• patient notes or clinical records, both ophthalmic and dispensing
• order books
• supplier invoice documents
• sight test or dispensing records

Contractors will have 21 calendar days to submit their evidence. Evidence can be sent to the NHSBSA PAO team by NHSmail, other secure email systems (for example, Egress) or registered post. The above documents may be in paper or electronic format. Any paper records sent by post should be copies of the originals.

All paperwork should be retained by the contractor in line with the relevant regulations and requirements.

12.5.3 Data protection

All parties are required to comply with data protection legislation and UK GDPR. Procedures under this policy will be consistent with guidelines.

NHSBSA will only request evidence of records and information directly relevant to the stated purpose of its enquiry and only in respect of NHS patients.

12.5.4 Review process

The PPV review is carried out remotely as a desktop activity unless a contractor has been identified for a visit (remotely or at its premises).

If a premises visit is required, 21 days’ notice will be given. Visits will be timed to minimise the inconvenience to contractors and their staff. A minimum of two staff from the NHSBSA PAO team will undertake the site visit and their names will be given in advance. If the site visit is done remotely, the meeting will be recorded. If the site visit is in person, the NHSBSA PAO team will take photographs of the evidence supplied at the visit to avoid duplication of effort.

The NHSBSA PAO team will check the GOS forms alongside patient records to verify the claim. Any clinical queries arising from the evidence the contractor supplies will be reviewed by NHSBSA PAO clinical advisors.

The information the contractor supplies should be sufficiently comprehensive to verify the claim. For a sight test this will be a clinical record of the sight test taking place. For GOS voucher claims this will be evidence of the provision of the required item or product to qualify for the voucher claim.

Sight test fees should only be recovered where the written clinical record does not meet the minimum standards of practice for optometrists and dispensing opticians issued by the General Optical Council (GOC):“An optometrist must maintain clear, legible and contemporaneous patient records which are accessible for all those involved in the patient’s care.”

As a minimum, the following information should be recorded:

• date of the consultation
• patient’s personal details
• reason for the consultation and any presenting condition
• details and findings of any assessment or examination conducted
• details of any treatment, referral or advice provided, including any drugs or optical device prescribed, or a copy of a referral letter
• consent for any examination or treatment
• details of all those involved in the optical consultation, including their name and signature, or other identification of the author

12.5.5 Contractor co-operation

PPV reviews are a financial fact-finding exercise and contractors are contractually required to co-operate with the process.

If a contractor refuses to engage with the NHSBSA PAO team – for example, by not allowing reasonable access to contractor-held records within the terms of this policy – the NHSBSA PAO team will notify the commissioner. The case may then be referred to the local optical committee (LOC) (or local medical committee in the case of ophthalmic medical practitioners) for assistance in resolving the problem as quickly and amicably as possible.

Where the contractor is not co-operating, the commissioner reserves the right to take the contractual action it deems necessary, including the suspension of further payment of ophthalmic claims to the contractor. Any contractual action should follow due process and commissioners should refer to chapter 6.

Where the practice is dispensing only, it will not be subject to the GOS contract and its provisions. These practices should be managed as per the OCP Regulations.

12.6 PPV outcomes

The NHSBSA PAO team will aim to achieve 100% confirmation/verification of the sample taken and will recover fees paid where this is not achieved.

It is accepted that occasional recording errors may occur, but frequent and systematic recording errors will be a cause for concern.

An outcome report from the PPV review will be shared with the commissioner and the contractor. This outcome report will contain all or some of the following:

• feedback to the contractor on the claims reviewed during PPV
• feedback where claims have been submitted incorrectly or inappropriately
• areas where further education or guidance for contractors or their performers would be beneficial
• confirmation that no further action is being undertaken
• required actions

Required actions could include any of the following:

Action 1: Extending the sample of claims, especially for the relevant claim type, to establish whether an incident is an isolated one or representative of a more widespread problem. This should take place as soon as possible after the original PPV review.

Action 2: Where the NHSBSA PAO team are not satisfied with the evidence or the explanations given in respect of errors found, the matter will be referred to other parties – for example, optometric advisers, the commissioner or internal auditors – for comment or further action. Enquiries may also involve patients if this is appropriate for the type of claim under review. See Annex 12.1 for a patient enquiry letter, Annex 12.2 for an adult questionnaire and Annex 12.3 for a child questionnaire.

Action 3: Recovery of fees paid. The contractor will receive a breakdown of the claims and the total value in the outcome report. Reclaim is normally via a lump sum payment. If the contractor requests to pay in instalments, this would be offset against the monthly GOS payment made to the contractor. NHSBSA PAO will seek approval from the commissioner of the instalment request.

Where there is evidence of under claiming, the contractor will be reimbursed. Submission of amended claim forms will not normally be necessary. The contractor will be asked to improve its systems to prevent any repetition of the errors in the future.

Action 4: If the NHSBSA becomes aware of or suspects fraud, it will notify the commissioner.

Action 5: Although PPV is not a tool to assess contract compliance around clinical record keeping, there may be occasions where PPV shows cause for concern in this area. The NHSBSA PAO team will communicate these concerns to the commissioner for further action.

If the commissioner wishes to take contractual action, it should refer to chapter 6. Individual performer issues should also be managed via the national performers list processes.

Where NHSBSA has informed the commissioner of potential fraud, the commissioner must refer this to the NHS Counter Fraud Authority at cfa.nhs.uk/reportfraud and follow the agreed processes. The commissioner must consult NHS Counter Fraud Authority about the appropriateness of continuing the PPV process following a referral.

Should the outcome report highlight significant concerns with the contractor’s sampled claims, the commissioner can request a further investigation to look at:

• systems and procedures within the practice for submitting claims and ensuring compliance with GOS Regulations and OCP Regulations
• preparation of the claims for submission and which staff member is involved
• records maintained by the contractor to provide evidence of services provided to patients
• practice protocols regarding the provision of GOS services to patients
• adequacy of procedures for recording services provided by the contractor to patients
• understanding and application of the GOS Regulations and OCP Regulations in respect of each claim type
• systems in place to prevent errors and omissions in the claims submitted
• other information sources

12.7 Reporting

Summary reports will be produced quarterly and annually for commissioners.

The commissioner must ensure that the outcomes of the PPV processes are reported appropriately within their governance structures.

12.8 Contractor queries and dispute process

Following issue of the outcome report, the contractor has 28 days to respond with any queries. If none is raised, NHSBSA PAO will carry out the relevant actions. This may include sending a deduction form to the commissioner to arrange for the recovery of any monies. Where a query is received, the relevant actions will be paused unless it is deemed necessary to continue with them (see 12.8.3 for further details).

12.8.1 Managing PPV disputes

This policy describes the process to resolve and determine PPV disputes between a GOS contractor, the NHSBSA and the commissioner in relation to provision of the NHS sight test.

It applies to both mandatory (fixed premises) and additional (mobile or domiciliary) contracts.

The GOS contracts are held by the commissioner but, through this policy, NHSBSA PAO teams are authorised to represent the commissioner during the informal and local resolution processes.

Although the provision of optical appliances and their repair and replacement are not governed by the GOS contract, the process for managing any disputes from the PPV process shall follow this policy.

12.8.2 PPV dispute resolution

GOS contracts require both contractor and NHSBSA on behalf of the commissioner to make every reasonable effort to communicate and co-operate with each other with a view to resolving the PPV dispute before referring the dispute for determination in accordance with the NHS dispute resolution procedure.

Where the parties have followed this policy and the NHS dispute resolution procedure to the end determination the result is binding.

The management of the dispute process shall be as described in chapter 9 other than for the informal process where the NHSBSA will represent the commissioner. The commissioner will lead stages 1 and 2 of the formal process.

12.8.3 Informal process

The use of an informal resolution process helps develop and sustain a partnership approach between contractors, the NHSBSA and the commissioner.

The contractor should notify the NHSBSA of its intention to query one or more decisions in relation to its PPV. This notification should usually be received no later than 28 days after the NHSBSA advises the contractor of its decision. If received after this period, deduction procedures may have begun and any claims overturned as a result of the dispute will need to be processed in a separate transaction.

The NHSBSA will immediately cease all action in relation to the outcome report and until there has been a determination of the queries and that determination permits the NHSBSA to impose the planned action.

The NHSBSA should acknowledge the notification and request the submission of supporting evidence from the contractor within a timely manner from the date it receives the letter or email.

The parties must make every reasonable effort to communicate effectively about any of the queries and must co-operate to resolve the matter informally before considering referral to the formal dispute resolution procedure.

The informal process may include (but not be limited to):

• telephone communications
• written (email or post) communications
• meetings

It should be possible to resolve most queries at the informal stage. Either party may wish to involve the relevant professional representative body (for example, an optical professional membership association or LOC) to help achieve resolution.

The formal process should not be initiated until the informal process has been exhausted. However, it remains the right of the contractor to invoke the local resolution clause of its contract. At that point the dispute will be passed to the local commissioning team to manage.

The NHSBSA shall give the contractor 14 working days from the date of any email or letter to respond to any clinical reviews of its disputed claims. If the contractor does not respond, this will be taken as its acceptance of the decision.

If the contractor does not accept a decision of a clinical review, then a final informal virtual meeting will take place between the contractor and representatives from the NHSBSA. The contractor has the opportunity to invite a representative body to support it at the meeting: for example, its optical professional membership association or LOC.

The NHSBSA should notify the contractor in writing to confirm the outcome of this meeting, whether this is that the queries have been successfully resolved or that the dispute will now need to move to stage 1 of the NHS dispute resolution procedure. If the contractor does not confirm within 14 days that it wishes to continue the dispute by moving to stage 1, the actions outlined in chapter 9 should be followed.

It is essential that the NHSBSA maintains accurate and complete written records of all discussions and correspondence on the contract file in relation to all levels of the dispute resolution. The NHSBSA should ensure that it responds to contractor concerns and communications in a timely and reasonable manner.

12.8.4 Local resolution and dispute process

Where the queries remain unresolved, the contractual dispute process will commence. See chapter 9 for the management of local resolution and dispute process.

12.8.5 Dispute timeframes

13. Ophthalmic claims and payments

13.1 Introduction

GOS claims can be submitted using the PCSE Online portal or a practice management system’s (PMS) eGOS. Following changes to GOS regulations effective from 1 January 2024, paper GOS claims are no longer accepted for payment.

This chapter outlines key policy areas for processing and submitting GOS claims.

13.2 PCSE Online

PCSE Online can be used to submit GOS claims, view statements and submit claims for Continuous Education and Training and Pre-Registration Supervision grants.

All GOS contractors have access to a PCSE Online account, regardless of any previous and current method for generating and submitting GOS claims. For new contractors, the account is set up as part of the application process.

All optometrists and ophthalmic medical practitioners have an individual PCSE Online account. It is important that they maintain an active PCSE Online account, particularly if the practice uses a PMS. If there is no activity within 90 days, accounts are automatically deactivated.

There is at least one named user administrator for each contractor PCSE Online account, as determined by the contractor when setting up the account. The administrator can create individual user accounts for team members, deactivate accounts as colleagues leave and assign system permissions such as ‘GOS performer’ for locums with an existing PCSE Online account.

13.2.1 PCSE Online support

Many simple questions can be answered by the support resources on the PCSE website or self-serving in PCSE Online. Where a query requires investigation, a case can be raised by filling out an online enquiry form or calling the Customer Support Centre on 0333 014 2884. This will generate a case reference number that remains until closure.

13.2.3 Electronic claims

Several PCSE Online system changes were introduced as of 1 January 2024. These include new processes for:

• enabling claims affected by outages or connectivity issues to be submitted electronically
• processing GOS 3 or 4 claims involving uncollected glasses
• changing the voucher type as a result of back vertex distance changes

13.2.4 Exceptional circumstances for paper GOS claims

Contractors can apply for permission to continue to submit paper GOS claims beyond 1 January 2024 in the following circumstances:

• contractors objecting to using electronic communications on religious grounds
• other exceptional circumstances, which need to be clearly defined in the application

Contractors should contact their commissioner if they wish to apply. Applications will be considered on a case-by-case basis and the commissioner’s decision will be final.

13.3 Reduction to the claim window for sight test claims

From 1 January 2024, the claim period for submission of GOS 1, 5 and 6 forms is 3 months from the date of the sight test.

Commissioners have discretionary powers to allow contractors to submit claims where the regulated timescales have lapsed. Contractors should notify the commissioner at the earliest opportunity so it can review the circumstances and, where appropriate, arrange with PCSE for the claim to be paid.

13.4 Business continuity

The business continuity plan for the PCSE Online system outlines the processes to follow in the event of unplanned system outages, domiciliary visits in low or poor mobile signal areas, or disruption to practices’ internet connections.

The aim of the continuity plan is to minimise disruption to service provision and inconvenience to patients. It uses a patient declaration form to collect the patient’s signature, in place of the PCSE Online system. Once the system is accessible, the performer should return to completing the claim electronically, leaving the patient signature blank, and retain this form for a minimum of 3 years – either as a hard or scanned copy – within the practice.

Once the business continuity plan has been instigated, and for the duration of each episode, the performer will not be possible to issue a GOS 3 voucher at the same time as the sight test. The regulations allow for GOS 3 voucher issue at the earliest opportunity once the system is available. At all other times a GOS 3 voucher must be issued at the same time as the sight test.

13.5 Use of patient addresses

All eligible patients, regardless of their housing circumstances, should be able to access NHS-funded sight tests. It is mandatory to record a patient’s address in GOS forms. This can be a home address or, for patients with no fixed abode, the provider’s business address, the address of the patient’s GP should they have one, a friend or relative’s address or the address of a temporary accommodation provider.

13.6 Special facial characteristics supplement

The special facial characteristics (SFC) supplement can be claimed in addition to a GOS voucher when patients require bespoke or modified spectacle frames to suit individual facial characteristics. The National Health Service (Charges and Payments) (Uprating, Miscellaneous Amendments and Transitional Provision) Regulations 2016 (this updates Schedule 2 1(1)f of the 2013 Regulations SI2013/461) removed the previous restrictions relating to the SFC supplement that meant it could only be supplied by an NHS trust or  hospital eye service.

13.6.1 Requirements and definitions

The requirements for a patient to be eligible for the SFC supplement are:

• standard frames are not suitable and a specially designed or extensively adapted frame is required to achieve an acceptable fit
• there is a clinically recognised condition (for example, Down’s syndrome, microtia, facial cancer, microencephaly, hydrocephalus) affecting facial or skull characteristics

Examples of acceptable adaptions to frames are:

• removing and repositioning pads on arms
• applying pads on arms to a plastic frame
• removal of fixed sides to be replaced with a band
• altering bridge parameters
• changing sides to increase total length
• altering side to incorporate a ‘loop end’
• applying a curl side by solder or heat shrink to appropriate length to tangent and total length
•  ‘skull fit’ with specific sides and possibly ear grips
• handmaking frames designed to the patient’s unique facial measurements

Several specialist frame ranges are available in the UK. These have been designed for patients with medically recognised conditions that have as a characteristic a changed facial shape. The SFC supplement can be claimed if the dispensing of a specially designed frame is clinically justified and meets the above requirements for SFC.

Adaptions where a claim is not permitted:

• changing nose pads
• fitting ear grips
• skull fit with existing frame
• cutting to shorten length of side

The reason for the SFC supplement must be clearly recorded in the patient’s record. Supporting information should include an explanation of alterations made or the frame dimensions of a specially ordered frame. Facial measurements should be recorded if practical.

It should be noted there are no age restrictions on using such a voucher and it should not be confused with the small glasses supplement.

13.7 Small glasses supplement

The small glasses supplement (SGS) can be claimed in addition to a GOS voucher when patients require bespoke or modified spectacle frames to suit their facial characteristics. The SGS applies when supplying spectacles that have been custom-made or extensively adapted for adequate fit and have a boxed centre distance of no more than 55 mm. The supplement is payable when small glasses are supplied as defined in The National Health Service (Optical Charges and Payments) Amendment Regulations 1999.

Examples of ‘extensive adaptations’ are:

• reductions or increases in the length of sides
• manipulations to reduce or increase the bridge width when this cannot be achieved solely by adjustment of the pads
• lenses with a high, positive spherical power worked to minimum substance (by either the contractor or a wholesaler)

Contractors should not rely on the manufacturer’s description and should check that the above conditions are met, including measurement of the frame to ensure that it is within the prescribed size limits.

13.8 Non-tolerance

The National Health Service (Optical Charges and Payments) Regulations 2013 No 461, part 4 9(6) refers to non-tolerance. It was introduced in FPN713 guidance. It applies when the patient cannot adapt to new spectacles due to the prescription and a GOS 3 was used in the original supply. A new GOS 3 can be issued for the replacement spectacles following commissioner approval of the non-tolerance form (Annex 13.1) that has been signed by a registered optometrist.

13.8.1 Criteria and process

The following criteria should be fulfilled for a new GOS 3 to be issued on the grounds of non-tolerance:

• the tolerance problems should have been present from the time of supply
• the cause of the problems has been shown to relate to the prescription, not the type of lens or appliance

The contractor should complete and submit the non-tolerance form (Annex 13.1) for approval.

Non-tolerance must be defined by the prescription and not the type of optical appliance supplied. Requests for an additional GOS 3 voucher for a change from single vision to bifocal or varifocal without a change in prescription will not be accepted.

13.8.2 Non-tolerance to hospital prescribed spectacles

Children or adults who were supplied spectacles from a hospital eye service should apply to the NHS trust if they have a problem. The NHS trust should provide funding for any additional vouchers supplied by primary care providers in these cases.

13.8.3 Retests and second opinions

If a patient is non-tolerant of their spectacles, the contractor must make sure that the spectacles have been made up correctly and that an optometrist checks that the patient has been issued a correct prescription. Further action may be required by the contractor as a result.

If the patient continues to be non-tolerant, they may have another GOS sight test and that can be in a mandatory or domiciliary setting. Approval does not need to be sought for the additional test. However, the application should be marked as non-tolerance and the spectacles should be verified as correct to the original prescription before commencing the test.

It is recommended that the patient has the retest with the original performer, but should the patient prefer, the retest can be done by another practitioner at the same practice or a different practice altogether.

13.9 Provision of second pairs

Following confirmation of a prescription, eligible patients are entitled to a single optical appliance using a GOS 3 voucher. Issuing a second pair of spectacles for the same prescription is not standard practice. Commissioners can however approve such requests in exceptional circumstances. The contractor should complete and submit the application for a second pair voucher (Annex 13.2) for approval.

13.9.1 Second pairs for children

Children who have a disability or condition that increases the risk they will break their spectacles can be provided with a second pair voucher if they meet the criteria described below. The basis for this is prevention of long-term visual impairment or avoidance of detriment to education or quality of life.

Criteria and process: applications for a second pair voucher should be routinely approved in the following scenarios:

Young children with voucher B or above:

• child is aged 7 or under
• prescription falls into voucher B or above for at least one eye
• there is a history of spectacle loss or breakage (2 or more repairs in the preceding 6 months)

Older children with voucher B or above:

• child is aged over 7 or a ‘looked after’ child
• prescription falls into voucher B or above for at least one eye
• there is a history of spectacle loss or breakage (2 or more repairs in the preceding 6 months)
• they have a further illness (that is, not just the visual impairment) that causes the frequent breakage or loss
• evidence from the patient or their representative leads staff to reasonably believe that the patient’s education or quality of life is likely to be affected if they are without their spectacles

Children of any age with voucher A

• prescription falls into voucher A
• an optometric adviser has reviewed the case and is satisfied that the other criteria described above are met

The contractor should complete and submit the application for a second pair voucher, signed by a registered optometrist, for approval (Annex 13.2). Previous approval for a second pair does not mean automatic approval at subsequent sight tests. Second pair vouchers should not be provided on a ‘just in case’ basis where there is no evidence of need or history of breakages or loss.

13.9.3 Second pairs for adults

Commissioners can approve a request for a second pair voucher for adults over 16 in exceptional circumstances. The patient needs to meet the following criteria:

• they have an illness that causes the frequent breakage or loss
• prescription falls into voucher B or above for at least one eye
• there is a history of spectacle loss or breakage (2 or more repairs in the preceding 6 months)
• evidence from the patient or their representative leads staff to reasonably believe that the patient’s education or quality of life is likely to be affected if they are without their spectacles

Second pair vouchers for adults may also be approved with discretion for voucher A if an optometric adviser has reviewed the case and is satisfied that the other criteria described above are met.

The contractor should complete and submit the application for a second pair voucher (Annex 13.2) for approval.

13.9.4 Hospital prescribed spectacles

Children or adults who received their first pair of spectacles from the hospital eye service should apply to the NHS trust concerned if they wish to request a second pair. If approved, the NHS trust should provide funding for additional spectacles via a hospital eye service voucher.

13.10 Vouchers for intermediate spectacles

Intermediate prescription spectacles can be supplied under GOS in certain circumstances.

A patient is entitled to either:

• one bifocal or multifocal GOS 3 where this includes a distant prescription
• two single vision GOS 3s, one for distant spectacles and one for near vision spectacles. The distant pair must be used for far vision. The near vision pair may be either a close reading pair or an intermediate pair

A single vision GOS 3 voucher may be used towards the cost of a degressive near vision lens.

The following combinations are not supported by GOS policy and therefore requests for such combinations shall not be accepted:

• two single vision GOS 3s where one pair is for near and the other intermediate
• a bifocal GOS 3 where this is for intermediate and near correction
• a third single vision GOS 3 for the purpose of providing intermediate correction
• a bifocal GOS 3 for the purpose of providing degressive or enhanced reading spectacles
• an additional single vision GOS 3 where a bifocal GOS 3 has already been provided

If the patient wishes to be provided with spectacles in any of the above combinations, the additional pairs must be supplied privately.

14. Optometry clinical placement training payment

Following a comprehensive Education Strategic Review (ESR), the General Optical Council (regulator) approved new Education and Training Requirements in February 2021. These reforms represent the most substantial overhaul in over 35 years and aim to ensure that optometrists are equipped to meet evolving patient needs and service demands in a rapidly changing healthcare landscape. As a result of this review, Optometry training will move from a three-year undergraduate degree followed by a one-year pre-registration clinical placement and will transition into a four-year integrated master’s degree programme, with clinical placements included.

To support this change NHS England have produced guidance ( need to hyper link to guidance once published) that sets out the arrangements for claiming the Clinical Placement Training Payment for optometry students undertaking clinical placements in General Ophthalmic Services (GOS) practices. It describes the eligibility criteria and claiming processes as the system moves from the Scheme for Registration (SfR) to Clinical Learning in Practice (CLiP) or another locally determined clinical placement which follows the educational reforms to optometry education approved by the General Optical Council (GOC) in 2021.

15. Commissioning of sight testing and dispensing in special educational settings (SES)

15.1 Introduction

Children with a learning disability, autism or both have a greatly increased risk of significant visual problems compared to the general population.

From April 2025 ICBs are required to commission the provision of sight tests within all special educational settings that have expressed a desire to host such services. ICBs are expected to ensure there is ongoing dialogue with all special educational settings within their area to maximise the provision of services.

15.2 Commissioning and contracting

This service must be contracted via an amended additional services contract for SES sight testing, in line with The General Ophthalmic Services Contracts (Payments).Directions 2025 and service specification. Contracts will not be for any qualified provider and must be procured with due regard to the Provider Selection Regime (PSR).

Contracts will be time limited and as per the delegation agreement. Those of more than 5 years are required to be cleared by the NHS England Regional Team.

15.3 Service provision

Services should be delivered in line with the service specification.

15.4 Supporting documentation

The materials and documentation required for commissioning, contracting, implementing and monitoring the SES service can be found on the NHS England website. See also:

• directions: NHS general ophthalmic service fees and optical voucher values from April 2024
• regulations: The National Health Service (Ophthalmic Services and Optical Charges and Payments) (Amendment) Regulations 2024
• ICB toolkit: CYP SEND sight testing service specification

Publication reference: PRN02212