Date Legislation considered: 10 February 2023
Date Legislation in Force: 01 February 2023
Potential Right(s) Affected: Residence/Discrimination/Equal Treatment
What does the legislation do?
The Regulations amend the National Health Service (Charges to Overseas Visitors) Regulations 1989 (“the Principal Regulations”).
The Principal Regulations require Local Health Boards and NHS Trusts in Wales to make and recover charges in respect of relevant healthcare services that are provided to overseas visitors not ordinarily resident in the United Kingdom , unless the overseas visitor or the service they receive falls within a charging exemption.
The Explanatory Memorandum provides that the purpose of the Regulations is to “ensure that the Principal Regulations reflect the provisions of Article 18 of the WA and Article 17 of the SA with regard to the charging for treatment of late EUSS applicants, and to ensure that unsuccessful late applicants are afforded equal treatment to those applicants who submitted their application to the EUSS within time.”
In December 2022, the IMA wrote to officials at the Welsh Government highlighting provision within the Principal Regulations and within Guidance that required Local Health Boards and NHS Trusts in Wales to charge unsuccessful late applicants to the EUSS for treatment received during the period in which their application was being determined.
The IMA considers that this is incompatible with Article 18(3) of the Withdrawal Agreement and Article 17(3) of the EEA EFTA Separation Agreement which provide (subject to provisions relating to fraud) for rights under Part 2 of the Agreements to be deemed to apply during the period when an application to the EUSS is being determined.
The Regulations amend the Principal Regulations to remove the requirement to charge unsuccessful late applicants to the EUSS for NHS treatment received during the period when their application was being determined.
They also require that where charges have been paid, they must be repaid by Local Health Boards and NHS Trust. Where charges have been made but not paid, they must not be recovered.
The IMA notes that at paragraph 6.3 of the Explanatory Memorandum, it states that “Local Health Boards have advised the Welsh Government that no individuals with this status have been treated or charged to date. It is not expected that the number of individuals of this status treated and therefore charged would significantly change going forward.” The IMA is continuing to engage with Welsh Government officials in respect of this issue.
The IMA raises no issues of concern with the Regulations at this stage, however any citizens experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal.
Further information about the IMA and guidance on how to report complaints can also be found on the Website.