The National Health Service (Charges to Overseas Visitors) Regulations 2011

PART 1INTRODUCTION

Citation, commencement and application

1.—(1) These Regulations may be cited as the National Health Service (Charges to Overseas Visitors) Regulations 2011 and come into force on 1st August 2011.

(2) These Regulations apply in relation to England(1).

Interpretation

2.—(1) In these Regulations—

“the Act” means the National Health Service Act 2006;

“authorised child” means a child who—

“authorised companion” means a person who has been granted leave to enter the United Kingdom to accompany a person who is obtaining a course of treatment in respect of which no charge may be made or recovered under regulation 13;

“child” means a person who is—

“Continental Shelf” except in reference to a designated area of the Continental Shelf means the seabed and subsoil of the submarine area (other than in the Baltic or Mediterranean Seas, including the Adriatic and Aegean, or the Black Sea), adjacent to the coasts, lying north of the latitude of 25 degrees north and between the longitude of 30 degrees west and 35 degrees east, of the territory (including islands) of—

where the submarine area is outside the seaward limits of the territorial limits of those countries and the Republic of Ireland and is an area with respect to which the exercise by any of them of sovereign rights in accordance with international law is recognised by the Government of the United Kingdom;

“designated area of the Continental Shelf” means any area which is for the time being designated by an Order in Council under section 1(7) of the Continental Shelf Act 1964(4) as an area within which the rights of the United Kingdom with respect to the sea-bed and subsoil and their natural resources may be exercised;

“NHS trust” means an NHS trust all or most of whose hospitals, establishments and facilities are situated in England;

“overseas visitor” means a person not ordinarily resident in the United Kingdom;

“reciprocal agreement” means arrangements mutually agreed between the Government of the United Kingdom and the Government of a country or territory outside the United Kingdom for the provision of health care;

“relevant NHS body” means an NHS foundation trust, an NHS trust, a Primary Care Trust, a Strategic Health Authority or a Special Health Authority;

“relevant period” means the period from 9th July 2012 to 12th September 2012;

“relevant services” means (except in regulation 8(2)(c)) accommodation, services or facilities provided under section 3(1) of the Act (Secretary of State’s duty as to provision of certain services), other than primary dental services, primary medical services or primary ophthalmic services;

“ship or vessel” includes a hovercraft;

“treatment the need for which arose during the visit” means—

(2) In calculating a period of residence in the United Kingdom for the purposes of these Regulations, any interruption by reason of temporary absence of not more than 182 days must be disregarded. The temporary absence cannot include an absence where the overseas visitor was not lawfully entitled to enter or remain in the United Kingdom.

PART 2PROVISION FOR MAKING AND RECOVERY OF CHARGES

Obligation to make and recover charges

3.—(1) A relevant NHS body must make and recover charges from the person liable under regulation 4 where it provides an overseas visitor with relevant services and the condition specified in paragraph (2) applies.

(2) The condition specified in this paragraph is that the relevant NHS body having made such enquiries as it is satisfied are reasonable in all the circumstances, including in relation to the state of health of that overseas visitor, determines that the case is not one in which these Regulations provide for no charge to be made.

(3) A relevant NHS body that makes and recovers a charge in accordance with paragraph (1), must give or send to the person making the payment a receipt for the amount paid.

(4) Where—

(a)a relevant NHS body has determined that an overseas visitor is exempt from being charged for relevant services under these Regulations;

(b)that overseas visitor has received relevant services from a relevant NHS body as part of a course of treatment; and

(c)prior to the course of treatment being completed, a relevant NHS body determines that that overseas visitor is no longer exempt from being charged for relevant services under these Regulations

a relevant NHS body may not make and recover charges under paragraph (1) in respect of relevant services provided as part of that course of treatment during a period where the overseas visitor has remained in the United Kingdom without absence.

(5) Paragraph (4) does not apply where a relevant NHS body determines that a person is exempt from being charged for relevant services as a result of receiving fraudulent or misleading information.

Liability for payment of charges

4.—(1) The person liable to pay charges under these Regulations is, unless paragraph (2), (3) or (4) applies, the overseas visitor in respect of whom the relevant services are provided.

(2) Where an overseas visitor is employed to work on and for the purposes of a ship or vessel and is present in the United Kingdom in the course of such employment, the person liable to pay charges under these Regulations is the owner of the ship or vessel on which the overseas visitor is employed.

(3) Where an overseas visitor is employed to work on and for the purposes of an aircraft and is present in the United Kingdom in the course of such employment, the person liable to pay charges under these Regulations is the employer of that overseas visitor.

(4) Where an overseas visitor is a child to whom no exemption under these Regulations applies, the person liable to pay charges under these Regulations is the parent or legal guardian of that child.

Repayments

5.—(1) Where a sum has been paid in respect of a charge for relevant services by or on behalf of a person who—

(a)at the time that those services were provided was not an overseas visitor in respect of whom the charge was payable; or

(b)did not receive the services for which the charge was payable,

a claim for repayment of the sum may be made in accordance with this regulation.

(2) A person making a claim for repayment of a sum must provide to the relevant NHS body—

(a)the receipt for payment of the sum;

(b)a declaration in support of the claim signed by or on behalf of the claimant; and

(c)such other evidence in support of the declaration as the relevant NHS body may require.

(3) The relevant NHS body must repay to the claimant the amount of the sum if it is satisfied that the sum was not payable by virtue of these Regulations.

(4) For the purposes of this regulation, the relevant NHS body is the one to which the sum was paid.

PART 3EXEMPTIONS

Services exempted from charges

6.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor which fall within the following paragraphs—

(a)accident and emergency services, whether provided at a hospital accident and emergency department, a minor injuries unit, a walk-in centre or elsewhere, but not including any services provided—

(i)after the overseas visitor has been accepted as an in-patient; or

(ii)at an outpatient appointment;

(b)services otherwise than at, or by staff employed to work at, or under the direction of, a hospital(5);

(c)family planning services;

(d)treatment in respect of a disease listed in Schedule 1;

(e)treatment for sexually transmitted infections, but in the case of services which relate to infection with Human Immunodeficiency Virus, only to the extent that they consist of a diagnostic test for evidence of infection with the Virus and counselling associated with that test or its result;

(f)services provided to an overseas visitor who is liable to be detained in a hospital or, received into guardianship under the Mental Health Act 1983(6) “(the 1983 Act)” or any other enactment authorising detention in a hospital by reason of mental disorder, or subject to a community treatment order under the 1983 Act(7);

(g)treatment which is provided in circumstances where—

(i)a requirement to submit to the form of treatment concerned is imposed by, or included in, an order of a court; and

(ii)paragraph (f) does not apply.

Overseas visitors exempt from charges - lawful residence for 12 months

7.—(1) No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who has resided lawfully in the United Kingdom for a period of not less than 12 months immediately preceding the time when such services are provided.

(2) Paragraph (1) does not apply to a person who has leave to enter the United Kingdom for the purpose of undergoing private medical treatment, or a person in relation to whom a determination under regulation 13 has been made.

(3) Where a person meets the residence qualification in paragraph (1) on a date during a course of treatment for which charges could have been made prior to that date, no charge may be made in respect of services subsequently received.

Overseas visitors exempt from charges - presence for work, study etc., or to settle

8.—(1) No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is shown to the satisfaction of the relevant NHS body for any purpose specified in paragraph (2) to be present—

(a)in the United Kingdom;

(b)in a designated area of the Continental Shelf;

(c)in or over any area of the Continental Shelf; or

(d)on a stationary structure within the territorial waters of the United Kingdom.

(2) The purposes specified for this paragraph are—

(a)engaging in employment with an employer which has its principal place of business in the United Kingdom or which is registered in the United Kingdom as a branch of an overseas company;

(b)being a self-employed person whose principal place of business is in the United Kingdom;

(c)working as a volunteer with a voluntary organisation that is providing a service similar to a relevant service as defined in sections 64 and 65 (financial and other assistance to certain voluntary organisations) of the Health Services and Public Health Act 1968(8), or a service to which Article 71 (arrangements with and assistance to voluntary organisations) of the Health and Personal Social Services (Northern Ireland) Order 1972(9) applies;

(d)pursuing a full time course of study which is—

(i)substantially funded by the Secretary of State, the Welsh Ministers, Northern Ireland departments or the Scottish Ministers; or

(ii)of at least six months duration; and

(e)taking up permanent residence in the United Kingdom.

Overseas visitors exempt from charges – EU Rights

9.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who has entitlement to the provision of the services in question under or by virtue of any of the following—

(a)regulations made under article 48 of the Treaty on the Functioning of the European Union;

(b)an agreement entered into between the European Union and any other country;

(c)any other enforceable EU right(10).

Overseas visitors exempt from charges - reciprocal agreements

10.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor where those services are provided in circumstances covered by a reciprocal agreement with a country or territory specified in Schedule 2.

Overseas visitors exempt from charges – refugees, asylum seekers and children in care

11.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who—

(a)has been granted temporary protection, asylum or humanitarian protection under the immigration rules made under section 3(2) (general provisions for regulation and control) of the Immigration Act 1971(11);

(b)has made an application, which has not yet been determined, to be granted temporary protection, asylum or humanitarian protection under those rules;

(c)is currently supported under section 4 or 95 of the Immigration and Asylum Act 1999(12); or

(d)is a child, taken into local authority care under the Children Act 1989(13).

Overseas visitors exempt from charges – human trafficking

12.—(1) No charge may be made or recovered in respect of any relevant services provided to an overseas visitor, where the competent authorities—

(a)consider that there are reasonable grounds to believe that person is a victim within the meaning of Article 4 of the Convention, and the recovery and reflection period in relation to that person under Article 13 of the Convention has not yet expired; or

(b)have identified that person as a victim within the meaning of Article 4 of the Convention.

(2) In this regulation, “the competent authorities” means the competent authorities of the United Kingdom for the purposes of the Convention, and “the Convention” means the Council of Europe Convention on Action Against Trafficking in Human Beings(14).

Overseas visitors exempt from charges - exceptional humanitarian reasons

13.—(1) Where an overseas visitor who has been granted leave to enter the United Kingdom for a course of treatment applies (or someone on his behalf applies) for exemption from charges for relevant services, and the Secretary of State determines that exceptional humanitarian reasons justify it, then no charge may be made or recovered in respect of that overseas visitor and that course of treatment.

(2) Such a determination may only be made by the Secretary of State if the Secretary of State is satisfied in the case of that overseas visitor that—

(a)the treatment specified is not available in that person’s home country;

(b)the necessary arrangements have been made for temporary accommodation for that person, any authorised companion and any authorised child for the duration of the course of treatment; and

(c)the necessary arrangements have been made for the return of that person, any authorised companion and any authorised child to their home country when the course of treatment is completed.

Overseas visitors exempt from charges - diplomats

14.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is a diplomatic agent for the purposes of the Articles of the Vienna Convention on Diplomatic Relations set out in Schedule 1 to the Diplomatic Privileges Act 1964(15).

Overseas visitors exempt from charges - NATO forces

15.—(1) No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is a person to whom Article IX(5) of the North Atlantic Treaty Organisation Status of Forces Agreement(16) applies.

(2) This regulation applies where the services in question cannot readily be provided by the medical services of the armed forces of the overseas visitor’s own country, or those of the United Kingdom.

Overseas visitors exempt from charges - long term visits by United Kingdom pensioners

16.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor whilst in the United Kingdom, who is—

(a)in receipt of a retirement pension under the Social Security Contributions and Benefits Act 1992 or the Social Security Contributions and Benefits (Northern Ireland) Act 1992;

(b)resident in the United Kingdom for more than 182 days, and in another EEA state or Switzerland for less than 183 days each year; and

(c)not registered as a resident of another EEA state or Switzerland.

Overseas visitors exempt from charges - war pensioners and armed forces compensation scheme payment recipients

17.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is in receipt of—

(a)any pension or other benefit under a Personal Injuries Scheme or Service Pensions Instrument as defined in regulation 2(1) (interpretation) of the Social Security (Overlapping Benefits) Regulations 1979(17); or

(b)a payment made under article 15(1)(c) (description of benefits - injury) or article 29(1) (description of benefits - death) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011(18).

Overseas visitors exempt from charges – Her Majesty’s United Kingdom Forces, Crown servants and others

18.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is any of the following—

(a)a member of Her Majesty’s United Kingdom forces;

(b)a Crown servant (other than a person falling within sub-paragraph (a)), recruited in the United Kingdom and employed by, or in the service of, the Government of the United Kingdom;

(c)an employee, recruited in the United Kingdom, of the British Council or the Commonwealth War Graves Commission;

(d)working in employment that is financed in part by the Government of the United Kingdom in accordance with arrangements with the Government of some other country or territory or a public body in such other country or territory.

Overseas visitors exempt from charges – former residents working overseas

19.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who—

(a)has at any time had not less than ten years continuous lawful residence in the United Kingdom; and

(b)is employed or self-employed outside the United Kingdom, provided that the period of employment or self-employment has lasted for no more than five years.

Overseas visitors exempt from charges - missionaries

20.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is working as a missionary for an organisation that is established in the United Kingdom, regardless of whether the missionary—

(a)derives a salary or wage from the organisation; or

(b)receives any type of funding or assistance from the organisation for the purposes of working overseas for the organisation.

Overseas visitors exempt from charges - prisoners and detainees

21.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor—

(a)whose detention in prison or in an institution provided by the Secretary of State under section 43(1) (remand centres and young offender institutions) of the Prison Act 1952(19) is for the time being authorised by law; or

(b)who is detained under any of the following provisions—

(i)Schedule 2 (administrative provisions as to control on entry etc) or 3 (supplementary provisions as to deportation) to the Immigration Act 1971(20);

(ii)section 62 (detention by Secretary of State) of the Nationality, Immigration and Asylum Act 2002(21);

(iii)section 40(7)(c) (searches: contracting out) of the Immigration, Asylum and Nationality Act 2006(22);

(iv)section 2 (detention) or 36 (detention) of the UK Borders Act 2007(23).

Overseas visitors exempt from charges - employees on ships

22.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is employed on a ship or vessel registered in the United Kingdom.

Overseas visitors exempt from charges for treatment the need for which arose during the visit only

23.—(1) No charge may be made or recovered in respect of any relevant services, consisting of treatment the need for which arose during the visit, provided to an overseas visitor who is any of the following—

(a)in receipt of a pension or benefit under the Social Security Contributions and Benefits Act 1992 or the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and has at any time had—

(i)not less than ten years continuous lawful residence in the United Kingdom; or

(ii)not less than ten years continuous service as a Crown servant employed by, or in the service of, the Government of the United Kingdom;

(b)resident in an EEA state, Switzerland or in a country or territory specified in Schedule 2 (except Israel) and has at any time had not less than ten years continuous lawful residence in the United Kingdom;

(c)a national of a state which is a contracting party to the European Convention on Social and Medical Assistance 1954(24) or the European Social Charter 1961(25) and is—

(i)lawfully present in the United Kingdom; and

(ii)without sufficient resources to pay the charge;

(d)an authorised child or an authorised companion; or

(e)an individual who is in the United Kingdom as part of the “Games Family”, as defined in Schedule 3, during the relevant period.

(2) For the purposes of this regulation, “treatment” includes medical, dental and nursing services required for—

(a)the care of women who are pregnant or in childbirth; or

(b)the prevention or diagnosis of illness.

Family members of overseas visitors

24.—(1) Where paragraph (2) applies, no charge may be made or recovered in respect of any relevant services provided to a member of the family of an overseas visitor, where that family member is lawfully present in the United Kingdom.

(2) Paragraph (1) applies in relation to an overseas visitor who is exempt from charges under any of the following regulations—

(a)regulation 12 (human trafficking);

(b)regulation 15 (NATO forces);

(c)regulation 18 (Her Majesty’s United Kingdom Forces, Crown servants and others);

(d)regulation 20 (missionaries).

(3) Where paragraph (4) applies, no charge may be made or recovered in respect of any relevant services provided to a member of the family of an overseas visitor, where the member of the family is lawfully present on a permanent basis with the overseas visitor whilst the overseas visitor is residing in or visiting the United Kingdom.

(4) Paragraph (3) applies in relation to an overseas visitor who is exempt from charges under any of the following regulations—

(a)regulation 7 (lawful residence for 12 months);

(b)regulation 8 (presence for work, study etc., or to settle);

(c)regulation 9 (EU rights);

(d)regulation 11 (refugees, asylum seekers and children in care);

(e)regulation 14 (diplomats);

(f)regulation 16 (long term visits by United Kingdom pensioners);

(g)regulation 17 (war pensioners and armed forces compensation scheme payment recipients);

(h)regulation 19 (former residents working overseas);

(i)regulation 21 (prisoners and detainees);

(j)regulation 22 (employees on ships).

(5) Where paragraph (6) applies, no charge may be made or recovered in respect of any relevant services consisting of treatment the need for which arose during the visit, provided to a member of the family of an overseas visitor, where the member of the family is lawfully present on a permanent basis with the overseas visitor whilst the overseas visitor is residing in or visiting the United Kingdom.

(6) Paragraph (5) applies to an overseas visitor who is exempt from charges under regulation 10 (reciprocal agreements), or regulation 23(1)(a) or (b) (treatment for needs arising).

(7) For the purposes of this regulation “member of the family of an overseas visitor” means—

(a)the spouse or civil partner of an overseas visitor; or

(b)a child in respect of whom an overseas visitor is a parent or legal guardian.

(8) None of the provisions of this regulation affect any entitlement which any member of the family of an overseas visitor may have to the provision of any relevant services by virtue of an enforceable EU right.

PART 4REVOCATIONS AND CONSEQUENTIAL AMENDMENTS

Revocations and consequential amendments

25.—(1) The instruments specified in column (1) of Schedule 4 are revoked to the extent specified in column (3) of that Schedule.

(2) The amendments set out in Schedule 5, which are consequential on the revocation of the National Health Service (Charges to Overseas Visitors) Regulations 1989(26), have effect.