AC-2025-LON-000160 - [2025] EWHC 3006 (Admin)

This concerned Patients B, F and K. The claims for the treatment in question for those patients were, as was admitted by Mr Mobasseri, inappropriate because the claims resulted in the allocation of UDAs to the contract year before the one in which they should have been allocated. In other words, the claims were misdated such that the UDAs fell within the previous contract year. The details for each were as follows:

So, in respect of Patients B and F, the clinical records established that the courses of treatment being claimed for were completed in April 2018. However, on the claim form in SoE the treatment completion date recorded that the treatment was completed in March 2018, having the effect of bringing the claims into the previous NHS contract year (2017-2018, instead of 2018-2019). In respect of Patient K, the course of treatment completed in April 2019 (and so the claim ought to have been made in the 2019-2020 contract year), but the claim was made with an incorrect treatment completion date of 27 March 2019, bringing the claim into the 2018-2019 contract year. The treatment acceptance date for Patient K was also wrongly recorded (as 22 March 2019 rather than 27 March 2019) which, although in itself not the trigger date for allocation of the claim to a contract year, might be thought to be more consistent (than one of 27 March) with a treatment completion date of 27 March.

As noted by the PCC, the potential significance of the wrong allocation of claims to an earlier contract year is that where the number of UDAs for a contract year falls below the 4% threshold, the NHS becomes entitled to claw back a certain amount of the monies paid in respect of the UDAs for that contract year.

As I have already noted, Mr Mobasseri admitted that these claims were inappropriate and also that they were misleading. He did not, however, accept that the claims had been made dishonestly.

The first matter to consider is whether the PCC wrongly shifted the burden of proof on to Mr Mobasseri, as contended under ground 3.

In its submissions, the GDC:

In fact, the PCC’s reasoning on this issue was not set out in quite the way as described by the GDC in its submissions:

It seems to me that there are three problems (which are related) as a matter of principle with the PCC’s decision on this point.

First, the way in which the PCC determined this matter did, in practice, amount to a reversal of the burden of proof. The PCC’s introduction of the facts, in particular in relation to patient K (where it described the dates as having been “deliberately manipulated”), suggested that its starting point was that of deliberate conduct, before moving on to state that Mr Mobasseri could offer no other explanation except that the changes were a result of administrative error. Although the PCC went on to say that it made its determination of deliberate action having regard to the totality of the evidence, that does not deal with the burden of proof that it applied in so determining. Its approach cast onto Mr Mobasseri the burden of proving his alternative explanation, of administrative error, rather than the GDC of proving its case of deliberate conduct and dishonesty. This was exacerbated by the PCC’s failure to deal with Mr Mobasseri’s case in the two ways I identify below. In particular, the PCC’s failure to consider administrative error as a cause of the changes of date effectively required Mr Mobasseri to produce a positive explanation for how the inappropriate claims had come to be submitted, in the absence of which the PCC concluded they must have been submitted deliberately and dishonestly.

The fact that, as relied on by the GDC, the PCC recited at paragraphs 8 and 9 of its determination that the GDC bore the burden of proof does not stand in the way of the above analysis. Although that is what the PCC said in those introductory paragraphs, when it came to its decision in relation to Patients B, F and K, that is not the approach that it followed. Similarly, the fact that in respect of Patient E, having examined the evidence, the PCC concluded that an error could not be ruled out such that the PCC was not satisfied that dishonesty had been proved, does not demonstrate that the burden of proof was applied correctly in the decision relating to Patients B, F and K.

Second, whilst recording that Mr Mobasseri had suggested that the changes in dates must have been the result of administrative error, nowhere did it go on to consider that suggestion, or the likelihood of that having been the case. Although the PCC stated that it determined Mr Mobasseri had deliberately changed the dates “having regard to the totality of the evidence”, and therefore perhaps implicitly rejecting administrative error, nowhere did it expressly consider it or explain why that was being rejected as an explanation. When the PCC moved on to say that it could identify no other reasonable explanation for the alteration of dates, other than that Mr Mobasseri had changed them deliberately, the PCC’s expansion on that focussed on it being Mr Mobasseri, rather than another member of staff, who must have made the changes or at least directed the changes to be made, rather than whether the relevant entries had been made in error. Indeed, the PCC’s reasoning on this point, in saying there would be no reason for the administrative staff to have “manipulated” the dates suggests it was at this point of the reasoning assuming deliberate change, and therefore not examining whether it might have been done in error.

Third, although the PCC recorded Mr Mobasseri’s contention that he would not have had any motive to bring the claims into the previous contract year, as there would not have been a shortfall such as a trigger a clawback, the PCC did not go on to deal with that. Whilst, as I have noted, motive might not have been a legally necessary part of what the PCC needed to find, it was related to its reasoning in explaining why it could not identify any other reasonable explanation (including saying Mr Mobasseri would have been the only person potentially to have benefited from the changes in dates). Moreover the PCC itself had set out what it was looking for in terms of dishonesty in this case when articulating that the issue was whether the claims were “dishonestly inappropriate and submitted for financial gain as opposed to doing so as the result of administrative or computer error.” Mr Mobasseri’s case was that the Camden Practice was not close to a shortfall, such that the addition of these UDAs to the previous contract year would not have made any difference at all to what he was paid under the NHS contract. The PCC did not address that or consider any evidence relating to it; nor did it explain whether it rejected it and, if so, on what basis.

Therefore, having due regard to the deference to be paid to a decision of the PCC, which had the advantage of having seen and heard the witnesses, and more generally had familiarity with all the evidence in the case, as well as broader expertise in making factual determinations in such matters, this is a point on which the appeal court should intervene. The PCC did not adopt the correct approach (by, in practice, not applying the correct burden of proof) and gave no consideration (or, at least, no express consideration) to the two matters raised by Mr Mobasseri as to why he was not dishonest and why the conduct was not deliberate.

In relation to Mr Mobasseri’s case that he had no financial motive to make the changes to the dates, it was not controversial that he would only have benefitted from any “manipulation” of the claims into the preceding contract year if the effect of doing so avoided a clawback. Such a clawback would only arise if the practice had a shortfall of 4% or more against his contractual target. For the years in question, as I have already noted, the Camden Practice was contracted to provide 18,111 UDAs. To trigger a clawback, therefore, there would have to have been a shortfall of 725 UDAs. To put that in context, the claims for Patients B and F (which were wrongly claimed in the 2017-2018 year) were together worth 24 UDAs; the claim for Patient K (which was wrongly claimed in the 2018-2019 year) was worth 12 UDAs.

There was no evidence that the Camden Practice was close to a shortfall. On the contrary, Mr Mobasseri gave evidence that it was not. For example:

In relation to the suggestion that the changes must have been the result of administrative error, as I have noted above, this was not dealt with directly by the PCC. The evidence the PCC did not consider included his account that, whilst it was the dentist’s responsibility to open and close a course of treatment on the system, because Mr Mobasseri was not available at the Camden Practice the whole time he had given access to his managers and his practice team to log in on his behalf, and that sometimes other members of the team would close the treatment. There was no evidence given (for either side) by anyone else as to how matters at the Camden Practice were run in this respect – Nurse A did not give evidence about how claims were opened, closed and submitted to the NHS.

Whilst Mr Mobasseri was not able to articulate a particular theory of precisely how the errors might have been made, and by whom, that was not particularly surprising in the context of the evidence that was given. However, the chance of an error could not have been dismissed out of hand. Moreover, the PCC’s own lens through which it set out to assess dishonesty, was whether the claims had been submitted for financial gain. There was no evidence that they had been. The evidence Mr Mobasseri gave was inconsistent with the claims being deliberately misdated and submitted with financial gain in mind (and, as I have said, no evidence to the contrary was advanced).

It was the GDC’s burden to prove dishonesty on Mr Mobasseri’s part in relation to these claims (and not his burden to prove an innocent explanation). The PCC made it clear what it was looking for – that the claims were “submitted for financial gain” – but the evidence was against that. Moreover, in the absence of any financial reason to change the dates on the claims, it is difficult to see why anyone would have deliberately changed them – there was certainly no suggestion of any such other reason before the PCC or on the appeal. In the circumstances, the PCC’s finding of dishonesty in respect of the ground 5(i) conduct must be set aside.