Guidance

Guidance for non-NHS bodies on implementing the NHS overseas visitors charging regulations

Updated 18 January 2021

Applies to England

Overview

Purpose

This guidance aims to help non-NHS bodies understand and meet their obligations under the NHS (Charges to Overseas Visitors) Regulations 2015, as amended. It signposts them to existing resources available to NHS bodies that will also be of use to non-NHS bodies.

It should be read with the ‘main guidance’: Overseas NHS visitors: implementing the charging regulations.

This guidance applies in England only. Accessing healthcare in Scotland, Wales and Northern Ireland could be different from England if the UK. Check the websites for health services in each country:

• Wales
• Scotland
• Northern Ireland

Background

The NHS is a residence-based healthcare system. Entitlement to free NHS care is largely based on being ordinarily resident in the UK, or being otherwise exempt from charges under the charging regulations. Being ordinarily resident means, broadly, living in the UK on a lawful and properly settled basis for the time being.

Non-EU, Iceland, Norway, Liechtenstein, or Switzerland nationals subject to immigration control are, in addition, required to have an immigration status of ‘indefinite leave to remain’ in order to be ordinarily resident in the UK.

This requirement will also apply to nationals from the EU, Iceland, Norway, Liechtenstein, or Switzerland who came to the UK after 1 January 2021 to live, study or work for a period of 6 months or more.

Nationals from the EU, Iceland, Norway, Liechtenstein or Switzerland who were living in the UK on or before 31 December 2020 will, from 1 July 2021, require a status under the EU Settlement Scheme.

A person not ordinarily resident in the UK is deemed to be an Overseas Visitor.

Providers of ‘relevant services’ (see paragraph 1.8) are required to identify overseas visitors and charge them upfront for relevant treatment where no exemption from charge applies. Charges can be recovered later where a clinician determines that treatment is urgent or immediately necessary. Commissioners are required not to use NHS funds to pay for overseas visitors that are not eligible to access relevant services for free.

Prior to 23 October 2017, the only bodies that could make and recover charges from overseas visitors for providing them with NHS care were NHS trusts, NHS foundation trusts, and Local Authorities when providing public health functions. This meant that an overseas visitor might be charged for receiving NHS services if they were provided by one organisation, but not if the same services were provided by another organisation.

Since 23 October 2017, any provider of ‘relevant services’, including private providers and those from the voluntary, charitable and social enterprise sector, (known as ‘relevant bodies’) must, having made such enquiries that it is satisfied are reasonable in all the circumstances, make and recover charges from an overseas visitor where no exemption applies.

‘Relevant services’ are those provided or arranged under the 2006 NHS Act except for:

• primary medical services provided under part 4 of that Act
• primary dental services provided under part 5 of that Act
• primary ophthalmic services provided under part 6 of that Act and
• equivalent services provided under that Act.

Some relevant services, however, are exempt from charge so they are free to all overseas visitors. These include diagnostic tests and investigations for infectious diseases, and, if positive, treatment for those diseases, and accident and emergency services (not including emergency treatment provided after admission to a hospital). Refer to the regulations for the full list.

Some groups of overseas visitors are exempt from charge for all, or some, of their treatment. Two principal groups are those covered by an immigration health charge (the ‘surcharge’) which was introduced in 2015, and those who are covered by a reciprocal healthcare arrangement.

Where no exemption applies an overseas visitor must be charged for being provided with relevant services.

Resources

Available guidance, tools and training

See extensive guidance main guidance on the charging regulations, associated law and best practice.

An explanation of the main points of this is provided below. However, those tasked with implementing the charging regulations will need a greater understanding and should refer to the main guidance in detail.

For those who may only need an overview of the rules or as a quick reminder, a short explanation of the charging regime is provided at Annex A. This will be useful for those with no experience of the charging regulations to provide a simple overview of the rules and considerations to be made.

The following tools and resources are also available. These can assist providers in the making and recovering of charges:

Supplementary guidance documents:

• ways in which people can be lawfully resident in the UK
• ‘Ordinary residence’ tool
• BRPs – overseas applicant and sponsor information
• information sharing with the Home Office: guidance for overseas patients
• useful links to national organisations who support vulnerable people
• useful contacts for NHS Overseas Visitor Managers

Example letters:

• request for advice from doctor or dentist
• request for patient information
• reminder for patient information
• document acknowledgement: patient non-chargeable
• document acknowledgement: patient chargeable
• no documents received: patient chargeable
• payment request
• advice to doctors and dentists

Example forms:

• undertaking to pay NHS costs form
• pre-attendance form
• information request form

Posters:

• NHS healthcare not free for everyone – visiting England
• NHS healthcare not free for everyone – proof of address
• outstanding debt
• poster – health insurance/surcharge
• poster – British national living abroad

You can also access the toolkit. It is subject to frequent update and improvement.

Forum and e-learning

Further resources can be found within an online forum, offering peer support to overseas visitors managers and those tasked with operating the charging regulations within non-NHS organisations. You will need to set up an account first by emailing nhscostrecovery@dhsc.gov.uk.

There are various e-learning modules for those with a role to play in implementing the charging regulations, now including staff from non-NHS providers, so that they can become trained to the extent necessary to fulfil their requirements.

Where a query is not covered in the main guidance or other tools and resources and cannot be answered for example via the forum, support can be provided by emailing nhscostrecovery@dhsc.gov.uk.

What non-NHS providers of NHS-funded care have to do

Legal obligations

Non-NHS providers of NHS-funded care must have appropriate systems in place to ensure that they meet their obligations under the charging regulations to make and recover charges from overseas visitors when providing relevant services and where no exemption applies. The legal duties of non-NHS providers in this respect are set out in Chapter 2 of the main guidance, including obligations under other legislation such as the Human Rights Act 1998. The Department of Health recommends all relevant bodies have a designated person whose duties include overseeing the implementation of the charging regulations (referred to as an overseas visitors manager (OVM)).

A provider of relevant services has a legal obligation, having made such enquiries that it is satisfied are reasonable in all the circumstances, to make and recover charges for those services from the person liable where no exemption category applies and to update the charging status in the patient’s summary care record.

Relevant services are those provided under the 2006 NHS Act except for primary medical, primary dental, primary ophthalmic and equivalent services provided under the NHS Act. Therefore, primary care services such as those provided by GPs, school nurses and health visitors are not relevant services so overseas visitors cannot be charged for them.

The person liable to pay the charge is usually the overseas visitor who has received the services. Where the patient is a child it is the person with parental responsibility for that child who is liable for the charge.

Exemption categories

Both exempt services that are free to all, and exempt groups of overseas visitors that are exempt from charge for all, or some (depending on the category) of their treatment are listed in Chapter 1 of the main guidance and within Annex A of this document).

More detailed explanation of the categories, including what evidence might be appropriate to demonstrate exemption under a particular category, can be found in the following chapters of the main guidance:

• Chapter 4 (exempt services)
• Chapter 5 (exempt under surcharge)
• Chapter 6 (exempt groups of former UK residents)
• Chapter 7 (exempt groups of vulnerable patients and those detained)
• Chapter 9 (exempt groups of EEA/Swiss citizens)
• Chapter 10 (exemption under international agreements)

Establishing chargeable status

In some cases, especially where the patient is one covered under surcharge arrangements, the chargeable status of overseas visitors may have already been established, and if so, this should be visible on the patient’s NHS record when viewed through the Summary Care Record Application (SCRa) (note that this is different from the Summary Care Record (SCR), for which access is not required to see the chargeable status). Information about accessing the SCRa is available at Annex B.

Where a patient is referred to a non-NHS provider from an NHS trust or NHS foundation trust provider, the NHS trust/FT should have established the patient’s chargeable status before making the referral. The non-NHS provider will need to be satisfied that the chargeable status is accurate. If a chargeable status assessment has not been done, non-NHS providers will need to establish the chargeable status.

Where a patient is referred to a non-NHS provider by a GP practice, it is the non-NHS provider’s responsibility to establish chargeable status. Whilst relevant bodies can work with GPs locally to encourage the sharing of any known chargeable status, GPs are not required to establish this before referring patients and must ensure they comply with data protection requirements before sharing any information for the purposes of establishing chargeability.

Baseline questions

To avoid discrimination and ensure that staff comply with legal duties under the Human Rights Act and Equality Act 2010, the same questions must be asked of every single patient whose chargeable status is not known, in every single department. It is recommended that the standard baseline questions are used although other wording can be used as long as the meaning of the questions remains.

The standard baseline question is: “Where have you lived in the last 6 months?” If the patient has lived anywhere outside the UK, the member of staff asking the question should then ask whether the patient has documentation to demonstrate they are entitled to free NHS care.

Where a patient declares that they have not lived in the UK for the last 6 months, they may not be ordinarily resident here (and if not, they would be an overseas visitor). These patients should then be assessed by someone whose role it is to implement the charging regulations to establish if they are, in fact, ordinarily resident here or, if not, whether an exemption from charge category applies or if charges are liable.

More information about ordinary residence is available in Chapter 3 of the main guidance, and for particularly unusual cases where it is difficult to establish ordinary residence, a tool is available in the toolbox to help.

There is also more information about asking patients questions about their residence status and interviewing them for an eligibility decision to be made in Chapter 11 of the main guidance, and in the upfront charging operational guidance. E-learning modules may also be used.

In some cases, it may be necessary to know a person’s immigration status to know if they are exempt from charge. Chapter 12 of the main guidance sets out how relevant bodies can share non-clinical data with the Home Office for them to provide their immigration status. It is very important that due process is followed correctly.

Process once chargeable status is established

Where it is established that an exemption category applies to an overseas visitor, they will not be charged. Where the exemption is because they are insured for healthcare purposes in another EEA member state or Switzerland and present a valid EHIC from that country, the details should be reported to NHS Business Services Authority’s Overseas Healthcare Team using the OHT portal, so that they can secure funding for the UK for having provided any necessary healthcare to one of their citizens (although it is the commissioner that funds the provider directly). Chapter 9 of the main guidance covers these arrangements in detail.

Where no exemption category applies to an overseas visitor, they must be charged in full for their healthcare. Where, in the opinion of a clinician, the treatment a chargeable overseas visitor needs is non-urgent and can safely wait until the patient returns to their country of residence, payment is required in full before the treatment can be provided. It may be more likely that treatment provided by non-NHS providers is deemed to be non-urgent, but each case should be considered on its own merits.

However, where the treatment needed is immediately necessary (which will include all maternity treatment) or urgent, in that it cannot, in the opinion of a clinician, safely wait until the patient can reasonably be expected to return to their country of residence, the treatment must not be withheld or delayed pending payment. However, the provider is responsible for recovering the charge afterwards, if it has not already been received.

The upfront charging operational framework supplements the main guidance. This also includes information on pricing up the cost of treatment, payment arrangements and risk-sharing arrangements with commissioners.

When it established that charges need to be made and recovered, the relevant body will need to inform the patient with a written explanation of why the charge applies, the estimated charge and how they can pay. The upfront charging operational framework, as well as Chapter 13 of the main guidance, provides detailed advice for providers and commissioners on charging categories, funding arrangements and pricing. Further, a price list has been created by NHS Improvement to support upfront charging which can be used by relevant bodies to estimate costs of treatment.

Where a provider determines that an overseas visitor is chargeable, the commissioner is no longer responsible for funding that patient (who should pay the provider directly). The charge must be calculated at 150% of the NHS national tariff.

Where urgent or immediately necessary treatment is provided to an overseas visitor who does not pay the provider for that treatment, risk-share arrangements are in place between provider and commissioner, whereby the commissioner funds the provider 50% of the tariff which is then returned to the commissioner if the patient pays. This is set out in Chapter 13 of the main guidance with the details provided in NHS England’s guidance Improving Systems for Cost Recovery for Overseas Visitors.

Chapters 11 and 13 of the main guidance set out other points of consideration on implementing the charging regulations effectively and the financial issues to consider.

Vulnerable patients

It is very important to consider the position of vulnerable overseas visitors, including those resident in our communities without immigration permission, both those who are exempt from charge and those who are chargeable. Categories of exemption for vulnerable groups, such as victims of modern slavery, are set out in Chapter 7 of the main guidance, along with detailed explanation. Some services are exempt from charge so that they are free to all overseas visitors (and should be charged to the relevant commissioner, but the commissioner must be informed of the exemption). Some of these might be especially applicable to vulnerable groups, such as services related to domestic violence. The exemptions that are in place to protect vulnerable groups will not change following the UK’s withdrawal from the EU.

Not all people who are in vulnerable positions are in an exempt from charge category, but immediately necessary or urgent care, including all maternity services, must always be provided regardless of whether or not they have yet paid for that care. Where payment has not been received in advance of providing urgent or immediately necessary care, it should be recovered as soon as practical, which might include agreeing a reasonable repayment plan with the patient. Where it is clear that a person is destitute or genuinely without access to any funds, a relevant body can conclude that it is not cost effective to pursue payment and write it off in their accounts.

Chapter 8 of the main guidance for detailed information on providing treatment to those not entitled to it free of charge, which will include some groups who may not be in a position to return to their countries of residence quickly.

Annex A: Explanation of ‘ordinary residence’ in the UK

Unlike some countries, the UK has a residency based healthcare system. This means that entitlement to be treated for secondary care services free of charge is based on ‘ordinary residence’ in the UK, and not nationality or the past or present payment of UK tax or NI contributions. Having an NHS number or being registered with a GP does not equate to being entitled to free NHS secondary care treatment.

So who is ordinarily resident in the UK?

Persons who are properly and voluntarily settled in the UK for the time being, whether of long or short duration, are ordinarily resident here. Persons subject to immigration control must in addition have indefinite leave to remain in order to be ordinarily resident. This can include those who are temporarily absent from the UK and those who also have a residence overseas, as long as they are still properly settled here.

EEA and Swiss citizens who were lawfully residing in the UK by 31 December 2020 remain entitled to NHS-funded healthcare as long as they remain ordinarily resident. They may need to provide evidence of this. From 1 July 2021, they require status under the EU Settlement Scheme in order to be considered as residing lawfully in the UK.

For anyone who is not ordinarily resident here (an ‘overseas visitor’), providers of NHS secondary care have a legal obligation to make and recover charges, unless an exemption category applies in law to either the person, or the service they are accessing (see table overleaf). Full payment must be received in advance of providing the treatment where clinicians consider it non-urgent.

Where an overseas visitor is insured under a reciprocal healthcare arrangement, residents of that country who are temporarily in the UK, will be treatable under the terms of that agreement. Ordinarily, under such agreements with EU countries, the UK is reimbursed for the cost of treatment provided that EHIC details are reported, even for ‘exempt’ services, such as A&E treatment, so providers should report EHIC details to the NHS Business Services Authority Overseas Healthcare Services Team. If an EHIC is not presented, the visitor should be assessed for charges and invoiced appropriately. For free elective care, they must present an ‘S2’ form, and again, the UK can then be reimbursed.

British Citizens and EEA nationals who reside solely outside the EEA, are charged for NHS hospital treatment where no exemption applies. In England they are charged at 150% of the NHS national tariff.

Immigration health surcharge

Temporary migrants (those here six months or more) pay a health ‘surcharge’ with their visa which means they are exempt from charging and can then access the NHS on the same terms as someone who is ordinarily resident(not including assisted conception services) whilst their visa is valid. From 1 January 2021, this applies to EEA and non-EEA nationals. Some groups are not required to pay the surcharge, but they have the same entitlement as a surcharge payer. They are all likely to have a Biometric Residence Permit and information about their chargeable status is available on NHS Spine, visible via the Summary Care Record Application (SCRa).

Visitors (those here lawfully for up to six months at a time, plus those here unlawfully) are charged for their healthcare where no exemption applies. In England they are charged at 150% of the NHS national tariff. For urgent and immediately necessary treatment, the provider’s commissioner funds 75% of this until the money is recovered from the patient. Those patients who after 2 months fail to pay debts over £500 can be denied re-entry to the UK or extension of stay. Providers should follow due process to report these debtors and encourage payment.

Which visitors do not have to pay for NHS hospital treatment in England?

Full details of exempt services and groups are set out in the main guidance.

Exempt services

• A&E services (not including emergency treatment after admission)
• diagnosis and treatment of specified infectious diseases
• diagnosis and treatment for sexually transmitted diseases
• treatment needed as a consequence of sexual/domestic violence, torture or FGM
• family planning services (this does not include terminations of pregnancy)

Charges that a resident would pay, eg prescription charges, may still apply.

Exempt groups (will include family members in some cases)

• UK nationals residing in the EEA on 31 December 2020, who have registered or are eligible for a UK-issued S1, A1 or EHIC document (or their equivalents)
• UK armed forces’ members, war pensioners or former UK residents working overseas for the UK government
• refugees, asylum seekers and some failed asylum seekers, plus children looked after by a local authority
• victims, and suspected victims, of modern slavery, including human trafficking
• prisoners and those detained for immigration or compulsory mental health purposes
• NATO personnel
• visitors from from the EU, Iceland, Norway, Liechtenstein or Switzerland who have valid EHIC, S1 or S2 documents and who are covered by a reciprocal healthcare arrangement
• visitors from Anguilla, Australia, Bosnia and Herzegovina, British Virgin Islands, Falkland Islands, Faroe Islands, Gibraltar, Isle of Man, Jersey, Kosovo, Montenegro, Montserrat, New Zealand, North Macedonia, Norway, Serbia, St Helena, Turks and Caicos Islands, with which the UK has a reciprocal healthcare agreement (usually only for immediate needs)

Charges that a resident would pay, for example prescription charges, may still apply.

All patients have to be assessed for charges. It is never acceptable to target certain patients based on race, language etc. Baseline questioning of all patients and the use of pre-attendance forms is recommended as well as viewing charging information available for some patients on their NHS records when using the Summary Care Record Application as an accredited person.

Protecting the patient

Chargeable patients must never be denied urgent or immediately necessary treatment, or any maternity care. If clinicians consider their need to be immediate or urgent (meaning it cannot be delayed until they return home), care will be provided even if they have not paid in advance, but costs must be recovered afterwards, where possible. However, if clinicians consider the treatment non-urgent or immediately necessary patients must be charged in advance of treatment being provided.

It is important to note that primary medical care is free of charge to both ordinarily resident patients and overseas visitors, except where any statutory charges apply, eg prescriptions or dentistry. GPs can register anyone, including those who are not OR in the UK, as an NHS patient and then provide them with free primary medical services. But being registered with a GP does not mean that NHS hospital treatment is then free upon referral. GPs are encouraged to assist providers by sharing information appropriately on potential chargeable status where known, and alert overseas visitors to potential charges upon referral.

Important – This leaflet is a brief guide only and not a full statement of law. Providers of NHS funded secondary or community care must ensure they understand the full scope of the NHS (Charges to Overseas Visitors) Regulations before levying charges. See full guidance.

Annex B: Summary Care Record Application

Clarification on terminology

The Summary Care Record (SCR) should not be confused with the Summary Care Record Application (SCRa).

The SCR is an electronic record of important patient information, including current medications and allergies, created from GP medical records. It can be seen and used by authorised staff in other areas of the health and care system involved in the patient’s direct care

Providers do not need to access a patient’s SCR to see their recorded chargeable status information.

The Summary Care Record Application (SCRa) is a National Application which can be used to:

• access a patient’s SCR
• view and Edit Demographics Data
• register Births
• view Child Protection plans
• view and Set FGM risk indicators
• view, Set, & Edit Chargeable Status information

Accessing SCRa

Organisations with an ‘N3’ connection can access National Applications (eg SCRa).

Consumers are no longer able to order an N3 circuit as the N3 network expired on the 31/3/2017. Currently all legacy N3 customers are using the Transition Network to obtain connectivity but will migrate to an ‘HSCN’ connection over the coming years. Consumers wanting quick access may contact one of the Transition Network Aggregators to provide a shared connection. Alternatively, quotes for HSCN can be obtained from any Stage 2 compliant supplier.

Application access is managed via Rolebased Account Control (RBAC) and requires local ‘Registration Authorities’ (RA) policies and procedures to manage Smart Cards and user-access to National Applications.

Specifically to access ‘Chargeable Status’ and associated information via SCRa the key RBAC assignments are:

• B0259 – supporting read-only access
• B0266 – providing read/write access (requires accreditation)
• These RBAC assignments will not give user access to the SCR itself.