NHS (Charges to Overseas Visitors) Regulations 2015
Summary of Information
In December 2022 the IMA wrote to the Department for Health & Social Care (“DHSC”) who are responsible for policy on health in England to highlight two concerns it had been made aware of in relation to the National Health Service (Charges to Overseas Visitors) Regulations 2015 (as amended) (“the Regulations”) and Guidance on implementing the overseas visitor charging regulations published on 14 July 2022 (“the Guidance”) concerning the charging of late applicants to the European Union Settlement Scheme (EUSS). These Regulations and Guidance tell NHS bodies in England who they must charge for some NHS services.
Specifically, the IMA was concerned that there was provision within the Regulations which required health bodies in England to charge late applicants to the EUSS for treatment received during the period in which their application was being determined. In addition, paragraphs 9.11, and 9.19 – 9.22 of the Guidance provided that both in-time and late applicants to the UK’s EU Settlement Scheme were required to be charged for NHS treatment for the period of their application in the event that their application is unsuccessful.
The IMA’s view was that this amounted to a breach of Article 18 (3) of the EU Withdrawal Agreement and Article 17 (3) of the EEA EFTA Separation Agreement, which provide for rights under the Agreements to apply to EU and EEA EFTA citizens and their family members during the period in which their application is being determined
As a result of the breach, there was also concern about the potential consequences for those EU and EEA EFTA citizens, who might have been incorrectly charged for NHS services.
The IMA has been in contact with DHSC and worked together to agree how to resolve the issues identified.
Summary of actions and evidence
Upon receiving correspondence from the IMA, the DHSC took action to review the policy and confirmed that they have undertaken the following actions:
- Amended the Regulations to remove the requirement to charge unsuccessful late applicants to the EUSS for relevant NHS services received during the period that their application was under consideration and require that any charges for such services which have already been made should either not be collected or, if already paid, should be refunded. The Regulations were laid before Parliament on 27 January 2023 and came into force on 18 February 2023;
- Revised and issued updated guidance to NHS England (and the individual Trusts) published on 26 January 2023;
- Continued to work through communication channels and Q&A information to send out to the NHS Trusts (who are already aware of the changes and are starting the process of identifying those affected), including via the Overseas Visitor Manager (OVM) forum and the Overseas Visitor Manager newsletter.
Importantly, as part of ongoing work DHSC have committed to working with the IMA to assist in a fact-finding exercise with a selection of NHS Trusts to enable the IMA to understand the processes which individual NHS Trusts have in place for identifying and refunding any citizens who have been incorrectly charged for NHS treatment during the period in which their application was being determined. The purpose of this introductory work is to determine next steps.
Summary of decision
On the basis of the actions that the DHSC have already undertaken and the proposed actions going forward, the IMA believes that the potential concerns identified can be resolved and the issue concluded as an Early Case Resolution.
To allow the investigatory work with DHSC to take place, a Monitoring Period of six months from the date of publication of this statement has been agreed.
In the meantime, the IMA welcomes representations from any citizen or interested who believes they may have been erroneously charged for NHS treatment or service.
DHSC would advise anyone who believes they were incorrectly charged for their EU Settlement Scheme application period to contact the relevant NHS trust, so they can investigate whether you should be reimbursed for any charges which may have been made incorrectly.
Since this matter came to the IMA’s attention in late 2022 and following publication of the original statement on our website on 3rd August 2023, we have not received any complaints from EU and EEA EFTA citizens who believe they may have been erroneously charged for NHS services.
At the time the error was highlighted, DHSC undertook proactive remedial work, including:
- amending and laying the relevant Regulations;
- revising and issuing updated guidance to NHS England (and the individual Trusts);
- and ensuring NHS Trusts are aware of the aforementioned changes by utilising the Overseas Visitor Manager (OVM) forum and the Overseas Visitor Manager newsletter.
DHSC also committed to working with the IMA to assist in a fact-finding exercise with a selection of NHS Trusts to enable the IMA to understand the processes which individual NHS Trusts have in place for identifying and refunding any citizens who have been incorrectly charged for NHS treatment during the period in which their EUSS application was being determined. This work has concluded and limited information has been received from respective NHS Trusts and there is nothing to suggest that this is a live issue.
Based on the information available, the IMA is not aware that any citizens have been incorrectly charged for NHS Services and if this were to be the case in the future, the relevant persons within the NHS Trusts i.e. the Overseas Visitor Managers are now sighted on the correct process for redress.
As such, The IMA now consider that this matter can be concluded but would encourage citizens who believe they may have been erroneously charged for NHS treatment or service to report this to us in the usual way.
