NHS Continuing Healthcare & NHS Funded Nursing Care Provision to Foreign Nationals: Is there entitlement without charge?

INTRODUCTION

In May 2022, the Department of Health & Social Care provided updated Guidance on implementing the NHS (Charges to Overseas Visitors) Regulations 2015 (“the Charging Regulations”). In this article, we examine clarification in relation to whether the provision of NHS Continuing Healthcare (“NHS CHC”) and NHS Funded Nursing Care (“NHS FNC”) are chargeable under the Charging Regulations.

It is important to say at the outset that this is not an article about NHS CHC or NHS FNC eligibility – it pre-supposes that any individual has been formally assessed, the outcome of which is that they do require and meet the eligibility criteria for either of these services. 

Therefore, the key issue is whether, having been found eligible, the NHS should provide these particular services to a foreign national without charge.

Is there entitlement to NHS Services without charge?

The Charging Regulations place a legal obligation on various organisations. This includes, for example, NHS bodies in the exercise of public health functions in England where there is a requirement to establish whether a patient is eligible for free healthcare or if the patient is an overseas visitor to whom charges may apply, or whether there is an exemption from charges for any reason?  This exemption could be for many reasons, including, for example, because the Charging Regulations do not apply to the particular type of care or treatment that the patient is receiving (namely, the Charging Regulations do not apply to all forms of healthcare).

The above is often undertaken in the context of ordinary residence, which broadly means, “living lawfully in the UK voluntarily and for settled purposes as part of the regular order of a person’s life for the time being, whether of short or long duration”.

A person who is not ordinarily resident in England at the time NHS services are required is not automatically entitled to those services without payment (save for some exempted services). A person who is ordinarily resident is entitled to NHS services and is not subject to the charging regime. 

It is important to note that a person does not become ordinarily resident in England simply by being registered with a GP, having an NHS Number, or paying taxes. It is a question of fact whether a patient is an ordinary resident in light of their individual circumstances. There is no minimum period that confers ordinary residence status; but there must be a sufficient degree of continuity to be properly described as settled.

However, as indicated, irrespective of ordinary residence, there are certain exemptions to the Charging Regulations in any event, and where these apply, an NHS body is unable to recoup the costs for that care provision. 

Exemption: NHS Funded Nursing Care and NHS Continuing Healthcare

As indicated, in May 2022, the Department of Health & Social Care updated their Guidance on ‘Implementing the Overseas Visitor Charging Regulations’ (“the Guidance”). The Guidance applies to the charging of overseas visitors in line with the statutory Charging Regulations, and deals directly with the issue of whether NHS FNC and NHS CHC is chargeable to overseas visitors outlining:

“Funded Nursing Care (the NHS funded nursing care component of nursing home fees) and CHC…are currently outside the scope of the Charging Regulations…This means that where it has been determined that an overseas visitor qualifies for such an FNC or CHC package, they cannot currently be charged for it. This applies to any kind of overseas visitor including those who do not have settled or pre-settled status under the EU Settlement Scheme or who have not applied for either of those statuses”.

Over recent years, the Government embarked on a consultation program seeking to extend the regime for charging overseas visitors, with some changes implemented in April 2017. Whilst the Government indicated as part of its response to a 2015 consultation process that, in the future, it would consider whether NHS FNC and NHS CHC should become chargeable, it has not done so.  Consequently since NHS FNC and NHS CHC continue to fall outside of the Charging Regulations, where a person qualifies for either one (i.e. has been assessed as eligible), such care must be provided free of charge and should not be refused to an individual based on their immigration status or overseas visitor charging status. This applies to any foreign national (not just to individuals from the EU).   

CONCLUSION

In summary, if an individual has been found to be eligible for NHS CHC or NHS FNC, having applied the usual statutory processes to determine it, then the Charging Regulations do not apply and their immigration status is not relevant. The care should be provided free of charge. 

For further information, please contact Jane Bennett, Associate or Susan Trigg, Partner.

Please also see our attached document - Health & Social Care Law – Issues for Foreign Nationals in the UK, which outlines areas of work in which Bevan Brittan LLP can offer specific advice and support.