NHS Provider Selection Regime: How will the Panel decide whether to review a provider’s compliant?

PSR Panel Declines Case on Minor Oral Surgery Services in Yorkshire and Humber

The Independent Patient Choice and Procurement Panel (the “Panel”) has declined to hear a complaint brought under the NHS Provider Selection Regime (“PSR”) regarding the commissioning of minor oral surgery services in the Yorkshire and Humber region, due to the Panel’s prioritisation policy. 

This case provides useful insight to how and when the Panel will reject complaints, which will factor into any decision by a provider that is considering whether or not to bring a complaint. 

On 23 July 2025, Barkhill Dental Practice Limited (“Barkhill”) asked the Panel to advise on NHS Humber and North Yorkshire Integrated Care Board’s (“HNY”) selection of a provider for intermediate oral surgery services (“IOSS”) in Bradford and Bradford North. 

Background

• In an earlier review, the Panel determined that HNY had contravened the PSR regulations in relation to: (a) the notice of intention, and (b) its response to Barkhill’s request for information. Regarding the notice of intention, the Panel found that HNY had breached the PSR regulations by: 
  • Not including the full addresses of the successful bidders; 
  • Not including a statement explaining the ICB’s reasons for selecting the chosen providers; and
  • Returning to an earlier step in the provider selection process, without repeating the subsequent steps in the provider selection process. 
• The Panel also found that HNY breached the PSR regulations by failing to provide Barkhill with its records on: 
  • its decision making process;
  • how the basic selection criteria were assessed and contract award criteria were evaluated; 
  • the reasons for the decision to award the contracts for Lots 11 and 12; and
  • evaluators’ identities. 
• As a result, the Panel advised HNY to rewind the competitive procurement process to a previous stage. HNY were instructed to provide Barkhill with the information that they had requested. 
• Following receipt of those disclosed records, Barkhill submitted further representations to HNY on 13 and 27 June 2025. The submissions were reviewed by the Panel, and on 18 July 2025, HNY communicated its reaffirmed decision to award the IOSS services contracts in Bradford and Bradford North as originally proposed. Subsequently, on 23 July 2025, Barkhill sought further advice from the Panel.  

Eligibility

The Panel’s eligibility criteria states that seven conditions must be met for a case to be accepted for review. The conditions are listed as follows: 

1. The relevant authority intends to make an award under (a) Direct Award Process C, (b) the Most Suitable Provider Process, or (c) the Competitive Process;
2. The request comes from a provider that might otherwise have been a provider of the services to which the contract relates;
3. Following the provider’s representations the relevant authority has conducted a review of its original decision and has decided to enter the contract or conclude the framework agreement as originally intended;
4. The request has been made in writing within 5 working days of the provider being notified of the decision by the relevant authority;
5. The provider has set out why it believes the relevant authority has failed to apply the regime correctly;
6. The provider has submitted all of the necessary supporting information for the Panel to carry out its review; and
7. The representations are not considered by the Panel to be trivial, vexatious, or an abuse of the Panel’s procedures.

Upon review of these conditions, the Panel confirmed that they were satisfied that Barkhill’s requests met all seven conditions. However, the Panel did not find in favour of Barkhill regarding prioritisation. 

Prioritisation 

The Panel’s Acceptance and Prioritisation criteria states that prioritisation becomes necessary when the volume of requests approaches the Panel’s operational capacity. This criteria states that operational capacity is considered to be ten or more active cases. However, this case specifies that since the publication of the criteria in 2024, the Panel now considers full capacity when it has four or more cases under review. 

Currently, the Panel is reviewing four cases, all in their initial stages. Consequently, Barkhill’s request has been assessed against the Panel’s prioritisation framework, which considers several factors, including:

1. potential benefit to patients;
2. the extent to which the advice may assist authorities in adhering to PSR regulations;
3. contribution to future interpretation and application of PSR regulations;
4. material impact of the provider selection decision on the parties involved; and
5. proportionality of the benefit relative to the resources required to provide advice.

It should be noted that this list of criteria is not intended to be an exhaustive list, and it may be necessary for the Panel to take other factors into consideration. 

Given the Panel’s current workload, the limited scale of patient impact, and the overlap with previously reviewed issues, the Panel determined that it would not accept the Barkhill case. 

The Barkhill decision demonstrates the Panel’s evolving stance: while the request met all eligibility requirements, it was declined on prioritisation grounds due to limited capacity and the relatively modest scale of patient impact. The Panel also noted that the issues raised had already been addressed in previous reviews, reducing the potential value of further advice.

Our thoughts

Although the Panel declined to accept Barkhill’s request for advice regarding the provider selection, the decision serves as a valuable illustration of how the Panel approaches this matter.

Initially, following its establishment, the Panel operated with minimal caseload and was able to consider all requests submitted. However, as awareness of the Panel’s role has grown, the volume of cases presented for review has significantly increased. On 23 March 2025, it was reported that the Panel had heard six cases. However, to date, the Panel has now heard a total of twenty cases since its establishment. This increase has necessitated a more structured and selective approach to case acceptance, guided by both the eligibility and prioritisation criteria.

This trend raises questions: 

• As demand for the Panel’s input continues to grow, should its capacity be expanded? By expanding the capacity, the Panel would allow itself to be fit for purpose to hear all cases where there had been a breach.  Otherwise, there is a risk that a provider is left in a position where it has no legal remedy to address legal non-compliances by a Commissioner that could have a material adverse impact on its business (other than a potential judicial review). 
• If the Panel agrees to hear a complaint, how does the prioritisation then work in practice? If another compliant emerges that has greater merits, but the Panel is at full capacity, is that case rejected, or does it jump the queue to replace what is considered to be the lowest priority of the remaining cases?  

The full decision can be found: here.

If you would like to discuss any of the above, please contact a member of our dedicated Healthcare team.

This article written by Jade Gillett and Patrick Parkin.