DR Solicitors Blog

How to support improvements to primary care premises

[fa icon="calendar"] Sep 18, 2018 4:43:58 PM / by Bethan Dodd

Bethan Dodd

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The surgery premises are generally the biggest asset and the largest liability within a GP partnership.  Suitable premises are a critical part of delivering high quality care, but they are widely considered to be in crisis. There has been a longstanding lack of government capital funding, and GPs are increasingly unwilling to shoulder the burden of long term leases or to invest in developing their own freehold surgeries. This is a key driver of the ‘last man standing’ problem. 

Recognising the issue, NHSE have asked for solution proposals in their General Practice premises policy review. It is important that any ‘solutions’ are achievable, affordable, and address the differing issues for freeholds and leaseholds. We have set out below some of our ideas which we have formally submitted in response to the policy review.

Leasehold surgeries

The biggest concern on leasehold surgeries is whether a GP can walk away from the lease when they want to retire, or if for some reason the practice has to close. The lease is a bit like riding a bicycle: so long as you keep pedalling the bicycle will stay up. From the perspective of the NHS a long lease is only a small risk: the NHS has an obligation to provide services to all patients so premises will always be needed and someone has to keep pedalling. From the perspective of an individual GP or GP practice the risk is much larger: at some point they will want to retire and if they cannot find a person to take over their lease obligations they will have to keep pedalling themselves. The NHS, rather than retired GPs, are more likely to have legs strong enough to keep the wheels of the bicycle turning and as such, an obvious opportunity is to transfer this risk from the individual GPs onto the NHS.   There are no significant financial implications for the NHS in doing so, because one way or another the NHS would have to fund the premises in order to ensure continuity of patient care. From a legal perspective there are a couple of ways this could be achieved:

  1. by way of a public body taking a headlease of the premises on market terms and granting an underlease to the primary care provider on more flexible terms than would otherwise be available (eg by linking the term to the core contract); or 
  2. by the primary care provider taking a lease directly from a landlord but entering into a separate ‘step-in’ agreement with a public body.  The step-in agreement would allow the primary care provider to hand the lease over to the public body in certain circumstances (eg, when the core contract comes to an end).

In both scenarios, the primary care provider will still be accepting responsibility for the day to day running costs of the premises.  However, they both limit the extent of that liability by linking the term of the lease to their core contract.

We believe a decrease in the risk associated with commercial leases should encourage more GPs to sign up to them, or to join partnerships which operate out of premises leased in this way.  In turn, this should improve recruitment and retention of GP partners, and also drive up investment and innovation in primary care premises from third party investors due to an increase in demand for the space. 

From the public body’s point of view, any small increase in risk can be managed by a proper estates strategy: the proposed guarantee would only be extended to surgeries which were consistent with the estates strategy, thereby speeding up the closure of those buildings which are no longer fit for purpose. The policy might even have the effect of reducing rental costs by improving the ‘covenant strength’.

Freehold Surgeries

Whilst one obvious ‘solution’ on freeholds is for the NHS to offer to buy them, we have assumed that this is unaffordable. An alternative is therefore to reduce the risk of them ever standing empty with no funding stream. 

One way to do this would be for the NHS to agree a ‘put-option’ whereby the freehold owner can require a short-term lease to be entered into with a public body in the event of a core contract coming to an end. This would not only give owners the comfort of an income stream if the contract comes to an end, but again provide the public body with certainty of premises to provide continuity of patient care in the event that a practice folds. This is what usually happens anyway, but by providing certainty in advance to all parties GPs would be more inclined to invest in their surgeries. If the worst happened, freehold owners would have the time to plan what to do with their investment rather than be forced into a ‘fire-sale’

Once again, the expected result of our proposal is that it should drive up investment in primary care premises by reducing risk for GP practices. There would be an incentive on the NHS to develop premises strategies to determine which buildings should benefit from the put option, and the approach should be cost neutral for the NHS since this is generally anyway what happens in practice.

Conclusion

If the ‘last man standing’ risk can be reduced in the ways proposed, buying into a freehold premises and taking on long leases will be a more attractive option for GP Partners. This will lead to more stable partnerships and more investment in the development and construction of new, fit for purpose, medical centres. We also believe this can be done in a way which is at little or no cost to the NHS. With practices under so much pressure, now is the time to act.

If you would like to discuss any particular concerns you may have relating to surgery premises, then please contact Bethan Dodd,  b.dodd@drsolicitors.com

How to agree a GP surgery lease

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The content of this blog is provided for general information purposes only and does not constitute legal advice to any person.  Before undertaking any new venture you should always obtain specific legal advice relevant to your matter.  No warranty express or implied is given in respect of the contents of this blog and DR Solicitors Ltd accepts no liability in relation to any reliance on the information contained in it. 

Topics: Property

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