1.In its letter to the Department of 22nd November 2017, the Committee requested a memorandum on the following point:
Clarify which persons are intended to be covered by the wording “any other person providing relevant services” in the definition of “relevant body” in regulation 2(3), in particular, whether public health services that are commissioned by local authorities such as public mental health services, drug treatment services and other services provided by voluntary sector organisations are intended to be covered.
2.The Department’s response to the Committee’s point is outlined below.
3.The National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017 (“the Amendment Regulations”) amended the National Health Service (Charges to Overseas Visitors) Regulations 2015 (“the Charging Regulations”) to, amongst other things:
4.The Explanatory Memorandum to the Amendment Regulations (paragraph 7.10) explains that the amendments referred to above sought to standardise the charging rules following a consultation on the proposed amendments to the Charging Regulations. The intention behind the Amendment Regulations was to ensure all secondary and community care provided under the National Health Service Act 2006 (“the 2006 Act”), with the exception of those services that are expressly exempted from charge in the Charging Regulations, are chargeable to non-exempt overseas visitors, wherever, and by whomever, they are provided. The removal of the part-exemption for out-of-hospital care and the addition of non-NHS providers to the scope of the Charging Regulations were measures designed to close respective loopholes. The changes intended to add parity in the system and to ensure that all overseas visitors are subject to the same charging regime, wherever the relevant services are delivered.
5.Regulation 2 of the Charging Regulations (as amended) sets out the definition of “relevant body”. Paragraph 7.11 of the Explanatory Memorandum to the Amendment Regulations explains that the definition of relevant body will bring into scope non-NHS providers from 23 October 2017.
6.The obligation to make and recover charges in respect of relevant services provided to overseas visitors is set out in regulation 3(1) of the Charging Regulations and applies to the relevant body providing relevant services rather than the body commissioning the services.
7.The definition of “relevant services” as defined in regulation 2 was not changed by the Amendment Regulations as it remained in line with policy intentions. The definition is now used in the context of all out-of-hospital care provided under the 2006 Act due to the widening in scope of the settings where charging can apply.
8.The intention is that paragraph (d) of the definition of “relevant body” should capture any body other than an NHS foundation trust, NHS trust or a local authority that is providing relevant services. This would include private and voluntary sector organisations if they are providing relevant services. Indeed it was the policy intention to expand the scope of the Charging Regulations to cover a wide range of non-NHS providers, but when doing so the Amendment Regulations did explicitly exempt palliative care services (by the insertion of regulation 9(g)) where they are provided by registered charities or community interest companies (i.e. hospices) and also NHS 111 services (by the insertion of regulation 9(aa)) as these were not considered to be appropriate for charging. Provided that the services are “relevant services”, it does not matter whether the services were commissioned by a local authority or by an NHS body, the intention is that the provider of those services will fall within paragraph (d).
9.The question of whether particular services (including mental health and substance abuse services) are chargeable to non-exempt overseas visitors depends on the contractual arrangements governing the provision of the services and the nature of the services, as providers must consider, on a service-by-service basis, whether the services are relevant services within the definition set out in the Charging Regulations and then whether the service falls within any specific exempt service set out in regulation 9 of the Charging Regulations. There was no policy intention to provide a complete exemption for mental health or substance abuse services. There is detailed guidance published to assist providers with implementing the overseas visitors charging regime. In all cases only services provided, or whose provision is arranged, under the 2006 Act are capable of being relevant services.
10.In summary, voluntary sector organisations that are commissioned by local authorities to provide relevant services are intended to be covered by the wording “any other person providing relevant services”. The Department considers that the amendment in regulation 2(3) of the Amendment Regulations achieves this intention.
Department of Health
28 November 2017
2 Relevant services provided by staff employed to work at, or under the direction of, a hospital were already chargeable under the Charging Regulations.
7 December 2017