AC-2023-LON-002171 - [2024] EWHC 132 (Admin)

I will first address the alleged inconsistency in the PCC’s conclusions regarding the dishonesty charges (para 104 above).

I am satisfied that the PCC’s reasoning shows that there was a clear distinction between the findings that it made in respect of charges 4(c) and 6(a) (on the one hand) and its findings on charges 6(f) and 7(a) – (g) (on the other). It is also clear that the misunderstanding concerning the completion of the FP17 forms that Dr Imani relied upon in relation to charge 5(b) (and charges 6(b)(2) and 6(c)) was distinct from her alleged misunderstanding that was rejected by the PCC in respect of charges 6(f) and 7(a) – (g). Accordingly, the inconsistency complaint is without foundation.

As I explained at paras 59 – 61 above, in relation to charge 4(c), the PCC accepted that the treatment that was claimed for 31 March 2015 may have taken place on 19 February 2015 and the fact that it was not recorded as having occurred on the February date may have been due to the Appellant’s chaotic record keeping. Accordingly, this was not an instance where it was established that treatment that had been claimed had never in fact been provided, nor was it an instance where a claim was made before the end of the contract year in relation to treatment that was only provided in a later year. Similarly, charge 6(a) involved an instance where the PCC was satisfied that dental treatment had taken place on 6 August 2013 (the date stated in the claim), albeit the records did not show that it was Band 2 treatment, as claimed (para 71 above).

By contrast, in respect of charges 6(f) and 7(a) – (g), Dr Imani accepted that she had not provided the claimed treatment during the relevant contract year, but said that she believed that unless she claimed for it by 31 March in the year that the course of treatment had been started, she would be unable to do so. Accordingly, this was a specific scenario in which the focus was, necessarily, upon whether or not the PCC accepted Dr Imani’s explanation (as I further address from para 135 below). Moreover, the PCC was fully aware of its earlier findings that certain dishonesty allegations had not been proved and the basis of the same. Indeed, in finding that dishonesty was established in respect of charge 6(f), the Committee referred to this expressly, clearly distinguishing the position (para 75 above); as it had also already done in respect of charge 5(g) (para 70 above).

I have explained at para 63 – 64 above, that the misunderstanding that Dr Imani relied upon in respect of charge 5(b) related to the inter-relationship between Part 3 and Part 5 of the FP17 form and whether she could insert in Part 5 treatment that was only at the planning stage and treatment in Part 3 that had not actually been undertaken. The PCC was prepared to accept that whilst she had been careless, Dr Imani genuinely held the belief that she described and thus was not dishonest. By contrast, as I discuss in more detail below, the PCC did not believe the explanation that Dr Imani advanced in respect of charges 6(f) and 7(a) – (g), that although she had not provided the claimed treatment during the relevant contract year, she believed that as the course of treatment had started, unless she claimed for it at that stage, she would be unable to do so. These were two distinct alleged misunderstandings and the PCC was perfectly entitled to arrive at differing conclusions in respect of them. Mr Hodivala is simply incorrect to say that the evidential position was “identical” in respect of all these charges.

Secondly, I address the contention that the PCC unfairly or wrongly rejected Dr Imani’s explanation as to the misunderstanding that she was under in respect of these charges (para 105 above). I begin by highlighting that although Mr Hodivala’s submission focused upon the Committee’s reliance upon the evidence of Ms Graham, it is apparent that this was just one of a number of factors that undermined the credibility of the Appellant’s explanation, as I discuss below. I also remind myself again of the limited circumstances in which a finding as to credibility made by the first instance tribunal, who had the benefit of seeing and hearing the relevant witnesses giving their evidence, can be overturned on appeal (paras 83 – 85 above).

Ms Graham gave evidence on Day 6 of the hearing and was cross-examined by Mr Hodivala. The following exchanges took place at pages 106H – 107B of the hearing transcript:

“Q A suggestion I am going to put to you...that there was a discussion between yourself and Dr Imani about the fact that there are all these late submitted claims and that if she wanted to get paid for the work, then she had to put the claim in by the end of the year.

A.

On the late submitted claims?

Q.

...there was discussion about the fact that claims had to be submitted by the year end if they were to be paid.

A.

If they were completed claims, then they would have to be submitted by the end – completed by 31 March to ensure that they were included on that year end information.

Q.

Yes, but I am going to suggest to you that there was not any discussion about completed or incompleted, just that there was a discussion about the fact that claims had to be submitted by the end of the year if she was to be paid for those UDAs.

A.

And if the treatment had been completed on or before 31 March of that financial year.” (Emphasis added.)

In her witness statement the Appellant had said: “It was my understanding that if you started a course of treatment in one contract year then you couldn’t carry it forwards to the next year. I was reinforced in this view by a conversation I had with Jill Graham...in about 2014 in which she told me that I had to claim for the work before 31^st March in each contract year” (para 74 above; emphasis added).

In her evidence-in-chief on Day 11 of the hearing, Dr Imani elaborated on her account of the alleged conversation with Ms Graham as follows (page 384D-H of the transcript):

“...And I remembered that time Jill came and showed me a – like a bundle of paper and said – and she had highlighted with yellow/pink...and said ‘These are not paid’ because they were submitted late...

....And so I asked her, I said ‘So you are telling me all this claim that we sent for last year it hasn’t been paid for or UDA hasn’t been given...She said – this was exactly what she said, ‘As long as you sent your claim form before 31 March, you will be paid, or UDA will be claimed for that financial year. Anything that goes to the new financial year is for new financial year’. I don’t think she did anything – said anything wrong. I think the misunderstanding for me what that I thought the late submitted claim that she showed me belongs to those ones that I started the treatment but didn’t finish it in the same financial years. So that’s why she is saying that this hasn’t been paid...So my understanding was that if you don’t finish your UDAs on the previous financial year, you are not going to be paid for them.”

She was cross-examined about this aspect of her account by Ms Barnfather on Day 14 of the hearing, where the following exchanges occurred (pages 474D – 475B of the transcript):

“Q. Did you look at the bundle of papers you say she [Ms Graham] brought highlighted in pink and yellow to see what are those claims she is telling you were late submitted and I have not been paid for?

A.

She just brought that example to show me. I don’t know if she left it with me of she took it with her. I don’t remember. She specifically came and said that these claims that she highlighted there hasn’t been paid because they’re late submitted claims.

Q.

Yes, meaning submitted later than two months since the last date of completion.

A.

I know. I know, but I didn’t think the late submitted claim meant that way.

Q.

But she brought with you on your account the documents to show you, to show you if you like, where you had been short changed UDAs.

A.

Because she thought I knew what late submitted claim meant to be...She just said to me, ‘These are late submitted claims’.

Q.

Why did you not look at the documents she had brought to show you?

A.

I had looked at the highlighted one. I didn’t go specifically to every single one and look at them, no, I didn’t. There were many so I didn’t.

Q. So you took from those documents she had brought you, highlighting late submitted claims, so submitted after the two month window...

...to mean all UDAs have to be claimed by 31 March – yes?

A.

Yes, if they have started in that year.

Q. And a course of treatment started in one year could not continue to the next year?

A. I didn’t think it could. No.

Q. But, Dr Imani, not least from a clinical perspective, that is totally illogical is it not?

A.

I know, but -”

It was plainly appropriate for the PCC to consider whether it accepted Ms Graham’s evidence as to what she would and would not have said to Dr Imani, and then to evaluate the Appellant’s account in light of that and the other relevant evidence. I also note that there was at least a shift in emphasis in Dr Imani’s accounts. In her witness statement and in the version put in cross-examination by Mr Hodivala, it was said that Dr Imani had been specifically told by Ms Graham that she had to claim before the end of the financial year (31 March) in order to be paid and to obtain the UDAs. It was therefore pertinent for the PCC to consider whether it accepted Ms Graham’s evidence that she would only have said this in relation to claims that were completed by 31 March. By the time she gave evidence Dr Imani was suggesting that Ms Graham simply referred to late submitted claims that would not be paid and that she, Dr Imani, had taken from this that all claims had to be made before 31 March, the end of the financial year.

It is also important to appreciate that the question of what was or was not said by Ms Graham was only one part of the factual matrix for the PCC to evaluate when considering the credibility of the explanation given by Dr Imani. I note the following, in particular:

In short, there was ample basis to support the PCC’s conclusion that Dr Imani’s explanation was “implausible and inherently unbelievable” (para 75 above). Whilst its decision referred to the majority of these points, it was unnecessary for the PCC to list every reason why it did not accept the Appellant’s credibility in relation to this aspect of her case. The PCC was entitled to form an overall view and the view that it formed is unassailable.

Thirdly, I turn to the Appellant’s contention that the PCC failed to apply the subjective limb of the Ivey test. For the reasons given below, I reject that contention as well.

It is accepted that the PCC gave itself a correct self-direction as to the Ivey test (para 56 above). It is also clear that when the PCC came to consider each of the dishonesty allegations, it focused upon Dr Imani’s subjective state of belief. During the hearing, Mr Hodivala accepted that the Committee had applied the subjective limb of the Ivey test in making its findings of dishonesty in respect of charges 5(g) and 17(b). It is also quite clear that where the PCC concluded that dishonesty had not been established, this was arrived at after considering the evidence as to the Appellant’s subjective state of mind, as I have summarised in relation to charge 4(c) at para 61 above, charge 4(e)(1) at para 62 above, charge 5(b) at para 64 above and charge 6(a) at para 71 above.

Furthermore, the PCC’s stated reasoning in finding dishonesty proved in respect of charge 6(f) shows that the Committee correctly applied the first limb of Ivey, ascertaining the Appellant’s subjective belief, rather than simply focusing on the objective limb of the test, as Mr Hodivala suggests. As I have already discussed, Dr Imani advanced a positive explanation as to why she had made claims with incorrect premature dates of completion (showing a TCD by 31 March, when in fact the treatment was outstanding at the time), actions which she now acknowledged were wrong. She relied upon a particular misunderstanding, which she claimed that she held at the time. The PCC examined this alleged misunderstanding, but rejected Dr Imani’s account, finding that her professed belief was “inherently unbelievable”. It therefore followed that Dr Imani had not told the truth about the belief that she held at the time when she made the claim. In these circumstances, the PCC, unsurprisingly, went on to conclude that it: “did not find it credible that you did not know that you were not entitled to claim in the financial year for the work you had not yet completed”. In other words, the PCC were satisfied that the Appellant had submitted the claim on a false basis and that she did know that she was not entitled to make the claim in question at the time that it was made. The PCC further reinforced this in indicating it had determined that: “it would have been your genuine belief at the time that you would not have been entitled to claim for Band 2 treatment that had not been completed in that financial year” (para 75 above). It was only after making this finding as to the belief held by the Appellant at the time of making the claim, that it went on to consider the objective limb of the test, namely whether this conduct would be considered dishonest by the standards of ordinary and decent people (para 75 above).

I have discussed the PCC’s reasoning in respect of charge 6(f). It is clear from the decision that the same line of reasoning was then employed in a shorter form in respect of charges 7(a) – (g), with cross reference to the Committee’s reasoning on charge 6(f) (paras 76 – 77 above). It is apparent, for example, from the PCC’s reasoning in respect of charge 7(a), that its focus was again upon Dr Imani’s subjective state of knowledge, and that the Committee found that she knew when she submitted the claim that she did so: “despite knowing that you were not entitled to claim prematurely for incomplete work in that financial year” (para 76 above).