The Department of Health and Social Care (DHSC) has updated chapter 4 of the guidance on implementing the overseas visitor charging regulations to clarify that NHS continuing healthcare (CHC) and funded nursing care (FNC) are not chargeable services. The guidance also includes some useful information about access to section 117 aftercare, which is provided to people who have been detained under the Mental Health Act 1983. The guidance applies to overseas visitors charging in England. Different charging rules apply in Scotland, Wales, and Northern Ireland.
What does the guidance say?
The following information is provided in the question and answer section of chapter 4:
Funded nursing care (FNC) and continuing healthcare (CHC)
Q: Is NHS funded nursing care (FNC) or continuing healthcare (CHC) chargeable to overseas visitors?
A: FNC (the NHS funded nursing care component of nursing home fees) and CHC (NHS funded social care for some people with long-term complex health needs) are currently outside the scope of the Charging Regulations as set out in the Department of Health and Social Care’s 2015 consultation exercise and its 2017 response. 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.
Section 117 aftercare
Q: What about health services we may have a duty to provide under section 117 of the Mental Health Act 1983 (MHA) – are they chargeable?
A: S117 ‘After Care’ services aim to reduce the risk of deterioration to a person’s mental health after detention under the Mental Health Act. S117 after care services are outside the scope of the Charging Regulations since they are provided under the MHA rather than the NHS Act 2006, so they do not fall into the definition of ‘relevant services’. There is no express power in the MHA to charge for s117 after-care services either, so if there is a duty to provide s117 after care services then there can be no charge (unless a top up to the s117 aftercare has been agreed).
Relevant providers need to have a clear understanding of the legal provisions under which services are being provided. If the health services the patient requires are instead provided under the NHS Act 2006, rather than the MHA, then charges may be applicable, but note that if the required services are classed as continuing healthcare or funded nursing care then they would not currently incur charges either, as set out above. There is a further possibility that the services required could be those provided under the Care Act 2014 in parallel to those provided under the MHA; if so then any charges would be in accordance with the Care Act charging rules.
Q: How do we know if the services a patient needs are to be provided under section 117 of the MHA?
A: An assessment should be conducted by the local NHS CCG and the local authority to determine if services are to be provided under s117. Once the assessment of needs has been conducted, it should be clearer what s117 services are required, or whether services should be provided as Care Act needs or needs under the NHS Act 2006.
Why is this clarification important?
In 2017, the NHS (Charges to Overseas Visitors) Regulations 2015 were amended to bring more secondary and community services within scope of charging for overseas visitors and to introduce up front charging for non-urgent treatment. Since the Regulations were amended, it has been unclear whether CHC and FNC remained exempt from charging. Although the Government stated - in its response to a 2015 consultation on extending the overseas visitors charging regime - that it would consider further whether CHC and FNC should become chargeable, subsequent DHSC guidance did not confirm that CHC and FNC could be provided free of charge.
Our submission to the 2018 review of the charging regulations requested clarification due to concerns previously raised by councils about the potential impacts of applying charges for CHC and FNC when adults with no recourse to public funds qualify for care and support under the Care Act 2014.
More recently, the Association of Directors of Adult Social Services (ADASS) have worked with DHSC to seek clarification, following concerns being raised about access to CHC and FNC for EU nationals during their EU Settlement Scheme awareness raising sessions for councils and care providers.
It is now clear that when a person qualifies for CHC or FNC, such care must be provided by the NHS free of charge and should not be refused to an individual solely due to their immigration status or overseas visitor charging status. Therefore CHC and FNC can be accessed by people with no recourse to public funds, including those who do not currently have leave to remain.
Although councils will already be aware that section 117 aftercare can be provided free of charge, regardless of a person’s immigration status, the information added to the overseas visitors charging guidance reaffirms this and provides clarification about responsibility for assessing eligibility for aftercare services.
These important clarifications should help to ensure that people with no recourse to public funds can access the care that they require when they have long-term complex health needs, are in need of nursing care, or qualify for aftercare.
For more information about overseas visitors charging, see our rights and entitlements information about NHS treatment. For more information about providing care and support to adults with no recourse to public funds, see our practice guidance.