• Cases totalling £19.1m referred to NHS England for arbitration
  • Disputes between CCGs and provider trusts over work carried out this financial year and in 2017-18
  • London trust “advised it would lose arbitration over £2.2m”

Around £20m in disputed payments between trusts and commissioners have been referred to NHS England for arbitration so far this financial year, board papers have revealed.


Documents published by NHS providers and commissioners show £19.1m in disputes over billing, with some carrying over from the 2017-18 financial year.


The total may be higher by the time the March deadline is reached for making formal requests for arbitration to NHS England.


The largest single dispute is between University Hospitals of North Midlands and its commissioners over £11.6m.


The £696m-turnover trust’s February board meeting received a report which said the “contract challenges” related to the 2017-18 financial year, with an unknown further sum for the current financial year.


Of the 2017-18 total, £9.3m is for “fines and penalties” levied on the trust by clinical commissioning groups, with a further £2.3m being “a challenge relating to casemix”.


Also in the West Midlands, a dispute between Herefordshire Clinical Commissioning Group and Wye Valley Trust has been referred to NHS England and NHS Improvement.


A report to the trust’s January board said there had been a block contract in place, but “given a significant rise in emergency activity and the requirement to improve access times for patients waiting on a waiting list, the trust has had no option but to treat the increased volume and seek additional payments for the work.


The report stated: “This is £7.5m more than the original memorandum of understanding/block contract value. The CCG is disputing the requirement to pay the £7.5m and has also increased the level of payments disputed to £1m per month. This is forecast to rise to £15m for the whole year.”


The report said a decision had been expected from NHS England and NHS Improvement in January but had not yet arrived.


Another hospital trust reported that it had a reasonable case to arbitrate over £2.2m it felt it was owed by a CCG, but would not do so for fear of damaging relationships with regulators.


Hillingdon Hospitals Foundation Trust had an agreement with its CCG that the latter would provide £2.2m so that it could hit its control total, triggering provider sustainability funding payments from NHS Improvement.


However, the trust is missing its control total and the CCG said it would therefore withhold the £2.2m.


The trust’s board papers said: “This will worsen our financial position. The trust’s position is that the only condition placed on this [£2.2m] funding was that we did not charge the CCG any over-performance on the contract. As we have kept to this agreement, we believe we would be successful at arbitration.


“However, NHSI advised that if they were asked to arbitrate, they would find it very difficult to find in our favour. They were involved in the negotiations to secure the funding, and the conditionality with respect to PSF was key to securing the funding, even if this was not subsequently written down.


“It is proposed that the trust does not take the issue to arbitration due to the damage this would make to relationships with the CCG and NHSI at a time when building relationships is key to our financial recovery moving forward.”


NHS England had not commented as this article went to press.


In 2017, HSJ saw internal NHS England emails in which an official discussed witholding details of an arbitration in case it encouraged other trusts and CCGs to challenge one another or national commissioners.


In July, a teaching hospital lost a £26m arbitration with its local commissioners.


Barking, Havering and Redbridge University Hospitals Trust had brought the challenge against three London CCGs but NHS England ruled against it.


In January, Southport and Ormskirk Hospital Trust revealed it had lost an arbitration for £182,000 with Southport and Formby CCG over the calculation of ambulatory care unit tariffs.

University Hospitals Coventry and Warwickshire Trust said in a statement it was also in the arbitration process with local commissioners.

A spokesman said: ”NHS England is currently in the process of appointing an independent arbitrator, who will inform all parties of next steps and timelines. As the arbitration process is ongoing, we will not be providing any further comment or information at this stage.”


*This story was updated on March 6 at 11.20am to include details of UHCW’s arbitration