New House of Commons Library briefing on NHS charges for overseas visitors

As new NHS charging rules for overseas visitors come into force today, the House of Commons Library has produced a useful briefing providing an overview of the rules.

Image credit: UK GovernmentYou can read the full briefing below.

A summary of the new rules can be found here on GOV.UK.

BBC News also has more on the new charges here. BBC News says providers of planned, non-urgent NHS treatment are required from today to make sure patients in England are eligible for free care and to charge them up front if they are not.

Health Minister Lord O'Shaughnessy was quoted by BBC News as saying: "We have no problem with overseas visitors using our NHS as long as they make a fair financial contribution, just as the British taxpayer does. The new regulations simply require NHS bodies to make enquiries about, and then charge, those who aren't entitled to free NHS care."

The British Medical Association (BMA) warned, however, that the changes could prevent vulnerable people getting treatment they need.

The BMA's Dr Chaand Nagpaul told the BBC: "It is vital that patients do not face bureaucratic or financial obstacles that prevent acutely sick and vulnerable individuals from seeking necessary treatment. This would be morally unacceptable and could end up costing the NHS more money due to lack of timely treatment."

A group of health professionals and charities led by Doctors of the World, Asylum Matters, the National AIDS Trust and Freedom from Torture said in a statement today that the new rules are unworkable and put the health of vulnerable people at serious risk.

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HOUSE OF COMMONS LIBRARY

BRIEFING PAPER
Number CBP03051, 23 October 2017

NHS charges for overseas visitors

By Thomas Powell
Alex Bate

Inside:
1. Introduction
2. Changes introduced by the 2015 charging regulations
3. Policy developments since 2010
4. The extent and cost of NHS use by non-residents
5. GP services and charges for overseas visitors
6. NHS overseas charging rules applying to other parts of the UK

www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | papers@parliament.uk | @commonslibrary

Contents
Summary
1. Introduction
1.1 Background to the charging regulations
1.2 Which services are subject to charges under the overseas visitors regulations?
1.3 Which overseas visitors are exempt from charges?
1.4 Former UK residents
1.5 How are the charges administered?
2. Changes introduced by the 2015 charging regulations
2.1 The health surcharge for non-EEA temporary migrants
2.2 2017 amendments to the regulations
3. Policy developments since 2010
3.1 Immigration sanctions for those with unpaid NHS debts
3.2 2012 review of overseas charging regulations
3.3 2013 consultations on migrant access to the NHS
Responses to the 2013 consultations
3.4 Visitor and Migrant NHS Cost Recovery Programme
Financial incentives to identify chargeable patients
3.5 2015 consultation
4. The extent and cost of NHS use by non-residents
5. GP services and charges for overseas visitors
6. NHS overseas charging rules applying to other parts of the UK

Summary

The NHS is built on the principle that it provides a comprehensive health service, based on clinical need, not ability to pay. However, regulations impose a charging regime in respect of NHS treatment for persons who are not ordinarily resident in the UK. The charging regime provides for some categories of non-residents to be exempt from charges, and EU regulations and other international agreements provide reciprocal healthcare that benefits visitors from and to participant countries.

The principle that NHS services are free at the point of use, unless charges are explicitly allowed for by statute, applies throughout the UK but decisions about specific charges are devolved and these may differ in the different countries of the UK. This note describes the position in England but see section 6 for links relating to other parts of the UK.

This note is intended to help Members of Parliament with questions from constituents and provides an overview rather than a detailed account of the rules. The NHS Choices website provides general guidance for overseas visitors about charges for NHS services and, according to their circumstances, where they may be exempt from charges. The main legislative provisions are contained in regulations, and the Department of Health has also issued Guidance on implementing the overseas visitor charging regulations.

GP services are excluded from the overseas visitor charging regulations, however, the guidance on the implementation of the regulations sets out some information on registering overseas visitors in primary care (see section 5 of this note).

Hospitals, community healthcare services and GPs have a duty to provide free of charge treatment which they consider to be an emergency or immediately necessary, regardless of whether that person is an overseas visitor. It should be noted however, that being registered with a GP, or having an NHS number, does not give a person automatic entitlement to access free NHS hospital treatment

The Immigration Act 2014 makes provision for non-EEA temporary migrants (for example, workers, students or family members, who do not have indefinite leave to remain) to pay an obligatory 'health surcharge' in addition to the visa application fee. The migrant is then entitled to free NHS services for the duration of the visa (with certain limited exceptions). Visitor visa holders cannot pay the surcharge in order to get access to free NHS care. The Act also adopts a revised definition of qualifying residence, with non-EEA migrants required to be current residents with indefinite leave to remain to qualify for free NHS treatment on the basis of ordinary residence. Further information is provided in the Library briefing on the Immigration Health Surcharge: common casework questions.

The UK Government has consulted on a number of other proposals including measures to improve the system for identifying patients who should be charged. In July 2014 the Government published its Visitor and Migrant NHS Cost Recovery Programme Implementation Plan 2014–16.

In December 2015 the UK Department of Health consulted on proposed changes to further extend charging for overseas visitors and migrants who use the NHS, including exploring changes in:

• primary care

• secondary care

• community healthcare

• current residency requirements

Amendments to the regulations introduced in 2017 included several of these proposed changes, including the addition of community healthcare services and NHS funded healthcare services provided by a non-NHS body to the list of chargeable services.

Other proposed changes, such as charges for A&E and ambulance services are awaiting further Government decisions. However, GP consultations are expected to remain free of charge, in part due to fears that overseas visitors with communicable diseases would fail to seek help if they were ill.

1. Introduction

Summary

The 2015 charging regulations [1] place a legal obligation on all bodies providing NHS services (including NHS trusts, NHS foundation trusts and local authorities), to establish whether a person is an overseas visitor to whom charges apply, or whether they are exempt from charges. When charges apply, the relevant body must make and recover charges from the person liable to pay for the NHS services provided to the overseas visitor, and since October 2017, this must be done in advance. However, the NHS has the option to write off debts and not pursue them when the chargeable person is genuinely without funds.

A list of exempt services and exempt categories of overseas visitor can be found in the guidance on the 2015 overseas visitor charging regulations. [2] Sections 1.2 and 1.3 of this briefing provide an overview of the main exempt services and exempt categories of visitor.

It is for the relevant body (usually through an Overseas Visitors Manager (OVM)) to determine whether a patient is ordinarily resident, based on the circumstances of the individual patient. In recent years the rules have been subject to changes, both through legislation and through case law, it is therefore advisable to check the latest position.

1.1 Background to the charging regulations

The NHS is built on the principle that it provides a comprehensive service, based on clinical need, not ability to pay, and the National Health Service Act 2006 requires the Secretary of State to promote a comprehensive health service that must be free of charge unless a charge is expressly provided for by legislation. The Act itself makes provision for some charges, for example, it enables regulations to raise charges for prescriptions, dental services, optical appliances, and NHS services provided to anyone who is not ordinarily resident in the United Kingdom.

Legislation permitting persons who are not ordinarily resident in the UK to be charged for NHS services dates back to 1977, and subsequent regulations, first introduced in 1982, impose a charging regime in respect of hospital treatment for overseas visitors. The regulations define an overseas visitor as someone who is not ordinarily resident in the UK but the term is not defined, either in the 2006 NHS Act or in the regulations.

Box 1: Ordinary residence Ordinary residence is a common law concept, which was the subject of a judgment in the House of Lords in 1982 that has since been taken to have wider application to the NHS overseas visitor charging regulations. In order to take the House of Lords judgement into account, when assessing the residence status of a person seeking free NHS services, a body providing the services will need to consider whether they are: "…living lawfully in the United Kingdom voluntarily and for settled purposes as part of the regular order of their life for the time being." UK citizenship, past or present payments of UK taxes or National Insurance contributions, being registered with a GP, having an NHS number, or owning property in the UK are not directly taken into account in the way that ordinary residence has been defined. Ordinary residence can be of long or short duration and there is no minimum period of residence that confers ordinarily resident status. In the past, the Department of Health has suggested that someone who has been here for less than 6 months is less likely to meet the "settled" criterion for ordinary residence but it is important to realise that this is only a guideline. The Department of Health guidance on the 2015 charging regulations provides advice on the way that ordinary residence should be established in practice, and how those who are not ordinarily resident should be identified.

The current legislative provisions are contained in the NHS (Charges to Overseas Visitors) Regulations 2015 (SI 2015/238), as amended, which came into force on 6 April 2015. [3] The 2015 charging regulations apply where a person who is not ordinarily resident in the UK needs NHS secondary treatment (GPs and other primary care services are not currently covered by the regulations).

Prior to 23 October 2017, secondary NHS care provided by a non-NHS body, and NHS services provided outside of hospital (such as community health services), were not services for which overseas visitors could be charged.

The Department of Health has issued detailed guidance for relevant organisations about procedures for implementing the charging regulations, Guidance on implementing the overseas visitor charging regulations.

1.2 Which services are subject to charges under the overseas visitors regulations?

NHS (Charges to Overseas Visitors) Regulations 2015 create a general rule that providers of NHS services must charge overseas visitors (defined as people who are not ordinarily resident in the UK) for the NHS services that they provide. Under the regulations, charges only apply to certain secondary care services. However, certain secondary care services provided by the NHS are specifically excluded from the charging requirement in the regulations, namely:

• Accident and emergency services, whether provided at a hospital A&E department a walk-in centre or minor injury unit (in respect of services similar to those at a hospital A&E) but not emergency treatment given elsewhere in the hospital;

• family planning services (not including termination of pregnancy);

• treatment of certain communicable diseases, where treatment is necessary to protect the public health; [4]

• treatment for a sexually transmitted disease at an STD clinic or on referral from one [5];

• treatment required for a physical or mental condition caused by: torture; female genital mutilation; domestic violence; or sexual violence; and

• compulsory psychiatric services (e.g. treatment given to people detained under the Mental Health Act 1983 or other legislation).

The NHS (Charges to Overseas Visitors) (Amendment) Regulations 2017 excluded two further services from the charging requirement:

• Services provided by the NHS 111 telephone advice line; and

• Palliative care services provided by charities or community interest companies.

The NHS must always provide immediately necessary or urgent care, including maternity care, to any chargeable patient, regardless of whether or not they have yet paid for that care. The Department of Health guidance on implementing the overseas visitor charging regulations explains that failure to provide immediately necessary treatment may be unlawful under the Human Rights Act 1998. [6]

1.3 Which overseas visitors are exempt from charges?

As explained in the previous sections, the requirement to charge overseas visitors applies to NHS secondary care services (with certain exceptions) provided to people who are not ordinarily resident in the UK. The regulations also contain a number of exemptions for people who are not ordinarily resident. These include:

• Non-EEA nationals who have paid the immigration surcharge (see section 2.1), except in the case of assisted conception services

─ Children born in the UK to those who have paid the surcharge are exempt from charge up to the age of three months, providing they have not left the UK since birth.

• Those with an enforceable EU right to free healthcare, including:

─ Someone insured for healthcare in another EEA member state or Switzerland and who, for medically necessary treatment, presents either a European Health Insurance Card (EHIC) from that member state. [7]

─ EEA/Swiss residents referred to the UK for pre-planned treatment with an S2 Form. [8]

─ Any UK state pensioner resident in another EEA member state or Switzerland who has registered an S1 document in that state.

• Vulnerable patients and those detained, including:

─ Refugees, (those granted asylum, humanitarian protection or temporary protection by the UK).

─ Asylum seekers, (those applying for asylum, humanitarian protection or temporary protection whose claims, including appeals, have not yet been determined).

─ Asylum seekers and failed asylum seekers who are receiving section 4(2) or section 95 support from the Home Office under the Immigration and Asylum Act 1999, or receiving support from a local authority under Part 1 of the Care Act 2014.

─ Children who are looked after by a local authority.

─ Victims, and suspected victims, of human trafficking or modern slavery.

─ Anyone in whose case the Secretary of State for Health determines there to be exceptional humanitarian reasons to provide a free course of treatment.

─ Anyone receiving compulsory treatment under a court order or who is detained in an NHS hospital or deprived of their liberty (e.g. under the Mental Health Act 1983 or the Mental Capacity Act 2005), who is exempt from charge for all treatment provided, in accordance with the court order, or for the duration of the detention.

─ Prisoners and immigration detainees.

• UK Government employees and war pensioners, including:

─ UK armed forces members.

─ UK Crown servants who were ordinarily resident prior to being posted overseas.

─ Employees of the British Council or Commonwealth War Graves Commission who were ordinarily resident in the UK prior to being posted overseas.

─ Those working or volunteering in employment overseas that is financed in part by the UK Government, who were ordinarily resident in the UK prior to being posted overseas.

─ Those receiving war pensions, war widows' pensions or armed forces compensation scheme payments.

• Those covered by reciprocal healthcare agreements and other international obligations:

─ Anyone entitled to free healthcare in the UK under the terms of a reciprocal healthcare agreement with a country outside the EEA (usually limited to immediate medical treatment). [9]

─ Nationals of states that are contracting parties to the European Convention on Social and Medical Assistance or the European Social Charter and who are lawfully present here and without sufficient resources to pay. Free treatment is limited only to that which cannot wait until the overseas visitor can return home for it, and if the person did not come to the UK for the purpose of seeking treatment.

─ NATO personnel, when the services required cannot readily be provided by armed forces medical services, plus their spouse/civil partner and children under 18 provided they are lawfully present in the UK.

The NHS (Charges to Overseas Visitors) (Amendment) Regulations 2017 removed the exemption for employees on ships registered in the UK that had previously been in place.

The list should not be taken as a full account of the conditions applying to the exemptions. It is based on the description contained in the Department of Health guidance on the charging regulations. [10] Some of these exemptions also apply to the spouse, partner or child of the person concerned although there may also be a requirement that the spouse, partner or child is living with the person in the UK.

1.4 Former UK residents

The Guidance on implementing the overseas visitor charging regulations explains that former UK residents who have emigrated and no longer reside in the UK are usually chargeable on visits to the UK. However, it notes that it is important for OVMs to consider whether:

a. the patient is still ordinarily resident in the UK or returning to resume properly settled residence in the UK, and, if not,

b. are they exempt from charge under the Charging Regulations?

The Guidance states that British citizens, EEA nationals and non-EEA nationals with indefinite leave to remain returning to resume properly settled residence in the UK will meet the ordinary residence test (assuming their residence is lawful and voluntarily adopted), most likely from the date of their arrival.

Exemptions under the Charging Regulations may apply to former UK residents who are not ordinarily resident in the UK but living in the EEC or countries with reciprocal healthcare agreements with the UK (see Chapter 9 and 10 of the Guidance on the 2015 Regulations for further information).

As noted in section 1.3 former residents who are working abroad as part of an armed service, as a Crown servant, or in UK Government funded employment abroad may be exempt from charges.

Former residents who are war pensioners and armed forces compensation recipients are also exempt from charges while visiting the UK.

1.5 How are the charges administered?

It is the responsibility of the organisation providing the chargeable treatment to identify patients that may be liable for charges.

The Department of Health recommends that relevant NHS bodies have a designated person, known as an Overseas Visitor Manager (OVM), to oversee the implementation of the charging regulations.

Since 23 October 2017, organisations providing secondary care are required to recover an estimate of the charges in advance of providing any treatment. However, this requirement to obtain payment upfront should not delay or prevent treatment that is urgent or immediately necessary. The Department of Health guidance on the charging regulations states that:

Only clinicians can make an assessment as to whether a patient's need for treatment is immediately necessary, urgent or non-urgent. In order to do this they may first need to make initial assessments based on the patient's symptoms and other factors, and conduct further investigations to make a diagnosis. These assessments and investigations will be included in any charges. [11]

Where a patient feels that they have been charged incorrectly, they can claim a reimbursement from the service provider at a later date, providing sufficient evidence can be provided that they were entitled to free treatment at the time. [12]

Organisations may also choose to write off debts in certain circumstances, for example where:

• the NHS chargeable patient has subsequently died and recovery from their estate is impossible; or

• given the NHS chargeable patient's financial circumstances, it would not be cost effective to pursue it (e.g. they are a destitute illegal migrant or are genuinely without access to any funds or other resources to pay their debt); or

• all reasonable steps have failed to recover the debt (e.g. the NHS chargeable patient is untraceable or there are no further practical means of pursuing debt recovery). [13]

2. Changes introduced by the 2015 charging regulations

Significant changes have been made to the exemption categories by the 2015 charging regulations, which came into force on 6 April 2015. Please refer to the guidance for details of exemptions that have been expanded, limited or removed under the 2015 regulations (and subsequent amendments). A Department of Health press release on the 2015 charging regulations also provided the following information:

People living in an EEA country or Switzerland.

As is the case already, most people, who live or work in another EEA country or Switzerland will continue to get free NHS care using a European Health Insurance Card (EHIC) issued by the country they live in. This means the NHS can reclaim healthcare costs from the original country of residence.

UK state pensioners who live elsewhere in the EEA will now have the same rights to NHS care as people who live in England. This applies to all pensioners who receive a UK state retirement pension and registered for healthcare in Europe with an S1 form.

However, people who live elsewhere in the EEA or Switzerland who are not working and are under the UK retirement age should either use their EHIC if they're entitled to one, or make sure they have health insurance if they need NHS care when visiting England. Otherwise they will have to pay for their care. This includes former UK residents, and ensures that people who already live and work in the UK do not end up paying through their taxes for visitors who are not economically active.

People living outside the EEA

People who live outside the EEA, including former UK residents, should now make sure they are covered by personal health insurance, unless an exemption applies to them. Anyone who does not have insurance will be charged at 150% of the NHS national tariff for any care they receive. [14]

2.1 The health surcharge for non-EEA temporary migrants

The Immigration Act 2014 provides for non-EEA/Swiss temporary migrants (those subject to immigration control who do not have indefinite leave to remain – generally speaking, people who come to the UK as workers, students or family members) to pay a health surcharge; it also adopts a revised definition of qualifying residence, with non-EEA/Swiss migrants required to be current residents with indefinite leave to remain in order to be eligible for free NHS hospital treatment. [15]

From 6 April 2015 temporary migrants coming to the UK for six months or more from outside the EEA/Switzerland have been required to pay an 'immigration health surcharge' in addition to the immigration application fee (unless exempt, or payment is waived). Payment of the health surcharge entitles the person to free NHS services on the same basis as an ordinarily resident patient while their visa remains valid. [16] This is true except in the case of assisted conception services, which since August 2017 are no longer available for free to overseas visitors who have paid the immigration surcharge.

Non-EEA/Swiss nationals who have indefinite leave to remain in the UK and are ordinarily resident here are not required to pay the health surcharge. Non-EEA/Swiss nationals who are visiting the UK for six months or less including on a multiple entry visa, or who are in the UK without permission, must be charged for services they receive at the point of accessing care, unless exempt from charges under other categories of the 2015 charging regulations.

The health surcharge has been set at £200 per person per year and £150 per year for students, payable upfront at the point of applying for immigration permission, and for the total period of time for which migrants and their dependants are seeking permission to stay in the UK. Refunds are available if the immigration application is withdrawn or refused. In setting the surcharge levels, the Government considered the range of free health services available to migrants alongside the contribution they make.

The proceeds of the charge will go directly from the Home Office to the health departments in England, Scotland, Wales and Northern Ireland. The Government has estimated that the charge could raise as much as £1.7 billion additional funding for the NHS over 10 years. [17]

A 2016 report by the National Audit Office found that in the first year of the immigration surcharge (2015/16), it raised an additional £164 million for the NHS across the UK. [18]

Further information is provided in the Library briefing on the Immigration Health Surcharge: common casework questions.

2.2 2017 amendments to the regulations

The NHS (Charges to Overseas Visitors) (Amendment) Regulations 2017 brought in a number of amendments to the charging requirements introduced by the 2015 regulations. These included:

• All organisations that provide eligible NHS services, not just NHS bodies, are now responsible for charging patients;

• Removal of the exemption of secondary care services provided outside of a hospital setting – such as community health services. These are now included in the charging requirements;

• NHS providers of chargeable services to recover an estimate of the costs upfront (except where this would delay or prevent the provision of urgently necessary treatment);

• Palliative care provided by charities or community interest companies to be exempted from the charging requirements;

• NHS 111 services to be exempted from the charging requirements;

• Overseas visitors who have paid the immigration surcharge to be charged for assisted conception services;

• Removal of the exemption for workers on UK-registered ships (although the ship-owner is liable for paying any NHS charges);

• NHS trusts and foundation trusts are required to record when a person is an overseas visitor against their NHS number.

3. Policy developments since 2010

3.1 Immigration sanctions for those with unpaid NHS debts

In February 2010 the Home Office ran a consultation on proposals to withhold access to the UK where a visitor has an outstanding material debt for NHS treatment. [19] Following consideration of the issues raised by respondents to these consultations, in March 2011 the Government announced they would amend the immigration rules to allow a person with an outstanding debt to the NHS of £1,000 or more to be refused a new visa or extension of stay until the debt is paid (this came into force on 31 October 2011). [20]

3.2 2012 review of overseas charging regulations

In May 2011 the Government announced it would undertake a fundamental review of the rules and practices around charging overseas visitors, including reviewing the procedures to screen for eligibility and to make and recover charges. In announcing the review, the then Health Minister Anne Milton stated that:

...it is increasingly clear that the overall charging regime is neither balanced nor efficient. Overall entitlement to free healthcare, through residency or other qualifying exemptions, is often more generous to visitors and short-term residents than is reciprocated for UK citizens seeking treatment in many other countries. Charging regulations only cover hospital treatment, so visitors may receive free primary care and other non-hospital-based healthcare services. Although hospitals have a statutory duty to enforce the regulations, effective enforcement by hospitals appears to vary considerably.

For these reasons we believe that a further fundamental review of the current policy is needed. The review will include: • qualifying residency criteria for free treatment;

• the full range of other current criteria that exempt particular services or visitors from charges for their treatment;

• whether visitors should be charged for GP services and other NHS services outside of hospitals;

• establishing more effective and efficient processes across the NHS to screen for eligibility and to make and recover charges; and

• whether to introduce a requirement for health insurance tied to visas. Access for European Union residents is determined by separate EU regulations. The review will not consider changes to these regulations. [21]

The 2012 Review of overseas visitors charging policy found that there were significant weaknesses in the rules for charging overseas visitors, in systems for identifying chargeable patients, and in the recovery of charges. The review's findings and recommendations were published in July 2013, alongside two linked consultation documents about overseas visitors' access to the NHS. [22]

3.3 2013 consultations on migrant access to the NHS

In July 2013 the Home Office and Department of Health published two linked consultations about migrant access to the NHS, asking who should be charged in future, what services they should be charged for, and how to ensure that the system was better able to identify patients who should be charged. Proposals included:

• that temporary migrants – those non-EEA migrants subject to immigration control who do not have indefinite leave to remain – should in future have to contribute to their healthcare costs;

• the adoption of a revised definition of qualifying residence, with non-EEA migrants required to be current residents with indefinite leave to remain, rather than just having to meet the more generous ordinarily resident test;

• measures to improve the system for identifying patients who should be charged; and that

• the extension of charging to primary and community healthcare.

The Government's response to the consultation was published in December 2013 [23] and the Department of Health has since worked to design and implement key improvements through its Visitor and Migrant NHS Cost Recovery Programme (see section 3.4).

Responses to the 2013 consultations

Most responses to the July 2013 consultations accepted that there was a need to protect the public purse by limiting access to healthcare in some circumstances and preventing the deliberate misuse of scarce resources. However, a number of responses highlighted concerns about the lack of evidence to justify the proposals (see section 4). For example, responses submitted by the National Voices (coordinated by National Voices' member, the African Health Policy Network) raised concerns about the Government's lack of evidence of the scale or financial impact of 'health tourism'.

3.4 Visitor and Migrant NHS Cost Recovery Programme

In July 2014 the Government published the Visitor and Migrant NHS Cost Recovery Programme Implementation Plan 2014–16, which set out a timeline for how the programme was to be rolled out. The plan outlined four phases of work:

• Phase 1 – Improving the existing system

Improves existing systems; develops and delivers financial incentives, encourages sharing of best practice, provides for a training curriculum for NHS staff, and establishes a cost recovery support team to deploy to NHS trusts.

• Phase 2 – Aiding better identification of chargeable patients

Works with delivery partners to make changes to our existing identity verification mechanisms and registration processes within the NHS (primary and secondary care).

• Phase 3 – Implementing the health surcharge

Delivers legislative change to support the introduction of the health surcharge (introduced through the Immigration Act 2014) and possible amendment of existing exemptions.

• Phase 4 – Extension of the current charging

Reviews current overseas visitor charging rules and explores extending the scope of charging in secondary care, and the possibility of introducing charging in certain primary care settings.

The Department of Health's 2015 to 2020 Shared Delivery Plan set a target of recovering up to £500 million per year by the end of 2017/18.

Financial incentives to identify chargeable patients

As part of its cost recovery programme the Department of Health introduced financial incentives to support the NHS in identifying chargeable visitors and migrants using the NHS. These incentives recognise the administrative and financial burdens that can face bodies providing NHS services in the recovery process and aim to counterbalance these.

The 2015 charging regulations introduced a new financial incentive to increase the level of cost recovery from chargeable patients from outside the EEA. From 6 April 2015 NHS providers in England will be able to bill chargeable non-EEA patients at a rate of 150% of standard NHS tariff for the cost of the care provided. The Department has said it will keep the rates of the incentives under review to ensure that it is effective and is driving change.

On 1 October 2014 the Department of Health also introduced a new financial incentive for hospitals to improve their reporting of EEA patients through the EHIC scheme, in order to improve cost recovery. The new financial incentive will be paid to NHS trusts who improve EHIC reporting, in order to compensate them for the administrative tasks involved in recording EHIC details from EEA patients.

In the first year of the EEA incentive scheme, NHS trusts recorded information on 12,611 EHICs, which was more than double the amount recorded in the previous year. [24] However, the 2016 National Audit Office (NAO) report on NHS charges for overseas visitors found that the non-EEA incentive scheme appeared to have had a more limited impact. [25]

The Visitor and Migrant NHS Cost Recovery Programme Implementation Plan 2014–16 also envisaged a process of sanctions whereby a fine would be levied against a provider if they are found to be failing to identify chargeable patients. This was intended to act in unison with the positive financial incentives to drive behavioural change from both sides

These sanctions were introduced in April, and allowed for Clinical Commissioning Groups (CCGs) to withhold payment for services if an NHS trust had failed to take reasonable steps to identify and recover charges from a patient. This provision was also included in the NHS Standard Contract. [26]

Despite the incentive and sanction regimes, the NAO identified significant variation between NHS trusts:

In 2015-16, just 10 trusts, all in London, accounted for half of the total amount charged to visitors from outside the EEA. Ten trusts, distributed more widely across the country, accounted for more than a quarter of the total amount reported through the EHIC scheme for EEA patients. In 2015-16, eight of the 154 acute and specialist trusts did not charge any patients from outside the EEA at all, and 22 reported no EEA patients through the EHIC scheme. Our analysis indicates that the variation cannot be fully explained by factors such as trust size, type and region. [27]

3.5 2015 consultation

On 7 December 2015, a consultation was launched on the extension of charging overseas visitors and migrants, covering the following areas:

• Primary Medical Care

• NHS Prescriptions

• Primary NHS Dental Care

• Primary NHS Ophthalmic Services (Eye Care)

• Accident and Emergency (A&E)

• Ambulance Services

• Assisted Reproduction

• Non-NHS providers of NHS Care and Out-of-Hospital Care

• NHS Continuing Healthcare

• EEA National's residency definition

• Overseas visitors working on UK-registered ships [28]

Following the consultation, changes were made to the regulations on the proposals related to overseas visitors on UK-registered ships, non-NHS providers of NHS care and out-of-hospital care, and assisted reproduction services (see section 2.2).

In light of the EU Referendum, and ongoing Brexit negotiations, the Government decided not to proceed with any of the proposed changes to residency definitions for EEA nationals.

The Government's response to the consultation, published in February 2017, also confirmed the Government's intention to extend charges to primary care at a later date, when further contractual and legislative changes could be made. This would mean that GPs would become responsible for identifying when a patient is chargeable, and overseas visitors who previously qualified for free prescriptions, dental care and optical vouchers (for example due to their age), would subsequently have to pay the standard charge for these services.

GP and nurse consultations will remain free for overseas visitors however. This is largely due to concerns about the detection and prevention of infectious diseases:

Opinion on the proposal to retain free GP/nurse consultations for all

Support for this proposal was widespread, but not without some opposition that it would mean the UK remained overly generous. There was much recognition that seeing GPs is an effective way to ensure that infectious diseases and other public protection issues are identified, so that this was often supported both by those who were opposed to other services becoming chargeable and those who were not. One organisation said, 'Maintaining free GP and nurse consultations to all is a sensible measure to ensure that opportunities to identify infectious disease during routine consultations are not lost'.

However, some felt there was no need for all consultations to be free of charge to all in order to protect the public. One organisation said they agree 'that the initial consultation should be free to comply with public protection requirements, but believe subsequent visits should incur charges, unless the presence of infectious disease or sexual health infection has been diagnosed.' Another respondent said: 'we feel that initial GP consultations should remain free to all, however Nurse Consultations should be chargeable.' [29]

Other consultation respondents felt that charges for GP services would mean many patients with irregular immigration status may not seek any medical help, and this could be particularly detrimental for children and those in need of maternity care.

The Government also committed to make a final decision on charging for A&E and ambulance services later in 2017. The original consultation argued that current exemptions on charges for A&E services can cause confusion for patients, and that the UK is an outlier in not charging for these services. However, the Government's response acknowledged some concerns from consultation respondents:

A number of respondents had concerns about the practicalities of charging in such a high-pressure environment and the potential delays to necessary treatment as eligibility was established. Concerns were also raised about people choosing not to call an ambulance or go to A&E through fear of charging. [30]

The proposals on A&E and ambulance services were the only ones with which more than 50% of respondents disagreed.

4. The extent and cost of NHS use by non-residents

The Department of Health's 2012 Review of overseas visitors charging policy commented on the lack of detailed evidence on the extent of NHS use by non-residents and the cost to the NHS, although a summary of the limited evidence available was still presented. [31] The review provided the following conclusions while acknowledging the high degree of uncertainty around the analysis due to the weakness of the evidence base:

• The NHS appears to be recovering gross income of £15-25 million for treatment provided to chargeable visitors and non-residents.

• This represents less than 20% of estimated chargeable costs.

• This low recovery is accounted for by only 30% - 45% of chargeable income being identified, and 60% of the charges levied not being recovered.

• Administering the current system (in NHS hospitals) may be costing over £15 million, suggesting that the overseas visitor charging system may at best be generating a small net gain and possibly none at all. [32]

The review found that while improved practices could increase both identification and recovery from the current very low levels, the circumstances of the main chargeable groups and inherent process weaknesses limit the potential improvement. [33]

The review team estimated that if all currently chargeable overseas visitors were identified, they would expect chargeable income to increase by £45-115 million. However, given the low recovery rate, they said it is unlikely that this would generate more than £20-50 million of recovered income. The review went on to state that more significant revenue could be realised by charging some or all of those currently exempt although it highlights significant problems facing the NHS in identifying and charging a small subset of patients for their treatment. [34]

The 2012 review noted that the power to charge those not ordinarily resident has only been enacted for secondary care in NHS hospitals (and not other new providers of NHS-funded services), although this has been changed with the 2017 amendments to the regulations.

No specific charges for overseas visitors can currently be made for services including primary medical services or for prescriptions. Together these exempted services comprise around 40% of NHS treatment expenditure (at the time of the review). The estimated cost for all temporary residents and short-term visitors (including EEA nationals) was up to a further £550 million. Practical operational issues and related administrative costs may limit the scope to extend charges to some of these. The review team estimated that the total healthcare cost of non-EEA temporary residents and visitors to be around £1 billion. [35] The review also drew this final conclusion about overseas visitors charging policy:

Although there may be good policy reasons, and potentially significant income opportunities in extending the scope of charging, the NHS is not currently set up structurally, operationally or culturally to identifying a small subset of patients and charging them for their NHS treatment. Only a fundamentally different system and supporting processes would enable significant new revenue to be realised. [36]

In October 2014, the Government published a Quantitative Assessment of Visitor and Migrant Use of the NHS in England. The research found that that EEA visitors and non-permanent residents cost the NHS about £305 million, of which £220 million is recoverable under the EHIC scheme. The Department of Health accounts for 2012-13 show that only about £50 million was recovered from EEA countries. The report also stated that the £50 million the UK recovers "is less than is paid out for British visitors to EEA countries, namely £173 million." [37]

5. GP services and charges for overseas visitors

GP services are excluded from the overseas visitor charging regulations, however, the guidance on the implementation of the regulations sets out some information on GPs and primary care:

• Anyone in England, including overseas visitors, can register as an NHS patient and consult with a GP without charge.

• There is no minimum time that someone must have been in the UK to register with a GP.

• GPs have some discretion to refuse to register patients, but this cannot be on the grounds of race, gender, class, age, religion, sexual orientation, appearance, diversity or medical condition.

• GPs have a duty to provide free treatment which they consider to be immediately necessary or in an emergency, including to overseas visitors.

• It is the responsibility of the body providing chargeable NHS services to identify chargeable patients, not the responsibility of the GP.

• OVMs should consider establishing formal contacts with GPs to help identify chargeable patients in advance of admission for chargeable treatment. [38]

Since July 2017, GPs are required to provide all new patients with the revised GMS1 form, which includes a section for patients to self-identify as eligible for NHS charges, or to identify themselves as an EHIC holder or a patient with an exemption from the charging requirements.

The Government's 2012 review of the rules and practices around charging overseas visitors, and the subsequent Department of Health consultation in 2013, considered charging for GP services and other NHS services outside of hospitals delivered by non-hospital providers. [39] However, as outlined in its response to the consultation, the Department of Health has said that in the interest of public health, it has no intention of making GP and nurse consultations in primary care chargeable for patients who would not otherwise be eligible for free NHS treatment. This includes people who are illegally in the UK or on temporary visitor visas. [40]

Although in its response to the 2015 consultation the Government committed to introducing changes to the charging rules for primary care more generally, the same outcome as in 2013 was decided upon with regards to retaining free GP consultations (see section 3.5).

6. NHS overseas charging rules applying to other parts of the UK

In general, health policy is a devolved matter and there is separate guidance relating to NHS overseas charging rules in Wales, Northern Ireland and Scotland. However the devolved administrations currently retain a broadly similar framework of regulations on charging visitors.

The guidance on charging for overseas visitors in Scotland can be found here; the guidance for Wales here. A useful summary of the legislation and guidance applying to Northern Ireland, and across the UK, can be found on the Law Centre of Northern Ireland's website, here.

The UK Government has responsibility for immigration matters and the health provisions in the Immigration Act 2014, including the health surcharge, apply across the UK. The UK Government has said that proceeds of the surcharge will go directly from the Home Office to the health departments in England, Scotland, Wales and Northern Ireland. [41]

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[41] A Home Office press release (March 2015) provides more background on the introduction of the health surcharge on 6 April 2015 (see also the Lords debate on the introduction of the 2015 charging regulations: HL Deb, 10 March 2015, GC197 )