On 6 April 2015, the new NHS (Charges to Overseas Visitors) Regulations 2015 came into force. The Regulations seek to improve the identification and recovery of NHS costs from overseas visitors and migrants, as part of the Department of Health’s aim to recover up to £500 million annually by 2017/2018. They replace the 2011 Regulations by the same name.

Background

Research commissioned by the Department of Health suggested that there is a potential chargeable amount of £388 million each year in respect of overseas visitors, but that the NHS currently only recovers around £73 million. Further, the 2011 Regulations were considered to be ‘overly generous’ in terms of the exemptions that were available.

To ensure that the NHS receives fair contribution for the cost of healthcare, the new Regulations:

  • Reflect the new immigration health charge.
  • Provide for commercial charging of some overseas visitors.
  • Remove overly generous or superfluous existing exemptions.
  • Introduce new, or expand existing, exemptions from charges for particularly vulnerable overseas visitors.

The key changes

Implementation of the immigration health charge

Since April 2015, an immigration health charge is now payable by non-EEA nationals who apply for a visa to enter or remain in the UK for longer than six months. Such payment enables the individual to access NHS-funded healthcare on the same basis as someone ordinarily resident here. Accordingly, regulation 10 of the Regulations provides an exemption from NHS charges for overseas visitors:

  • who have paid the immigration health charge for as long as their leave to enter or remain in the UK is in effect;
  • who are exempt from paying the immigration health charge (unless that exemption from the immigration health charge only applies because they are a visitor to the UK or they are planning to stay for less than six months in which case they are still liable for NHS charges unless another exemption applies); and
  • for whom the Secretary of State has exercised his discretion to waive, reduce or partially refund the immigration health charge.

Regulation 11 exempts those who have already made an application to enter and remain in the UK prior to 6 April 2015 i.e. before the commencement of the immigration health charge. They will not be required to pay the charge retrospectively. Instead, as a transitional measure, regulation 11 provides that they are exempt from NHS charges until their existing visa expires, at which time, should they make a further application for leave to remain in the UK, they will have to pay the new immigration health charge.

Children of individuals covered by regulations 10 and 11 are also exempt from charges while aged 3 months or younger, provided they do not leave the UK.

Commercial charging

For the first time, charges to overseas visitors who are not ordinarily resident in another European Economic Area (EEA) state or Switzerland will contain an element of profit. Charges will be calculated at 150% of the national tariff rate for the relevant services provided.

The Regulations detail how prices should be set and dealt with when local and national variations are considered.

Commercial charging is a new concept to the NHS and may incentivise identifying chargeable visitors from outside the EEA and Switzerland.

Vulnerable overseas visitors and the reduction of health inequalities

The Regulations introduce and expand various exemptions in order to address the needs of vulnerable visitors and to reduce health inequalities, consistent with wider government policy.

Relevant services will not be chargeable when provided to overseas visitors as a result of a condition caused by torture, female genital mutilation, domestic violence or sexual violence provided that the overseas visitor has not travelled to the UK solely for this treatment.

No charge may be made or received in respect of relevant services provided to an overseas visitor who is a victim of human trafficking.

The Regulations introduce new exemptions and amend some of those contained in the 2011 Regulations with regards to asylum seekers in order to ensure they are compatible with both policy intentions and the Equality Act 2010. In particular, they ensure that disabled and able-bodied failed asylum seekers who are in comparable circumstances are equally entitled to free NHS hospital care. Further, the exemption in relation to children in the care of a local authority is extended to apply to those children in respect of whom there is no care order.

The Secretary of State for Health may also decide that ‘exceptional humanitarian circumstances’ warrant an exemption from charge.

Conclusion

Given the huge financial pressures in the NHS, the policy objective behind these Regulations is clearly understood. However, it is expected that implementing this new approach may not be plain sailing.

Trusts are encouraged to review the Department of Health’s guidance on the Regulations which is available here and to seek legal advice if in doubt.

The Department of Health expects the impact of these Regulations to be low, but with high rewards. An evaluation is taking place during implementation, with publication expected in autumn 2015 and a full review in 2017/2018. It remains to be seen if the ambitious target of £500 million per annum will materialise.