Where a person has been charged and has a debt of £500/£1000+, the Immigration Rules state that such applications ‘will normally’ be refused but there are circumstances when the Home Office may decide not to refuse leave to remain. The Home Office cannot refuse an application on the basis that treatment has been received where the person has not been charged. However, if the Home Office has been notified of a debt that the NHS later decides not to pursue collecting, this may still be considered when a person makes a future immigration application.
Some people with no recourse to public funds will be subject to charging depending on their immigration status and the type of treatment they require. For example, people without any current immigration permission will be required to pay for most types of hospital treatment and can only receive non-urgent treatment with full upfront payment. People who have accrued NHS debt must inform their legal representative so that this can be properly addressed in their immigration application.
Who is not exempt and must pay?
The people (including children), who do not fall under the exemptions include:
- Visa overstayers
- Illegal entrants
- Refused asylum seekers (unless they are receiving asylum support from the Home Office or are accommodated by a local authority under the Care Act 2014)
- Visitors with leave to enter for a period of six months or less
Charges will apply to people who have the above types of immigration status and are accommodated by local authorities under section 17 of the Children Act 1989, the leaving care provisions of the Children Act or the Care Act 2014 (unless they are a refused asylum seeker).
When will a person be charged for treatment?
Since 23 October 2017, all providers of NHS funded secondary and community healthcare have been required by law to collect the full estimated charge of a course of treatment before it is administered unless doing so would prevent or delay the provision of immediately necessary or urgent treatment. The NHS has published a tariff of indicative charges, which are set at a rate of 150% of the actual cost of treatment.
If no payment is made before immediately necessary or urgent treatment is provided then the healthcare provider is required to recover costs after the course of treatment has finished, so an NHS debt will still be accrued, and patients should be advised of this. Parents will be liable for charges applicable to their children. Hospitals have been required to charge patients for a number of years and already have processes in place to do this. It is unclear how other NHS and non-NHS providers, who are providing services that were previously free to all, are going to implement charging.
What if a person cannot afford to pay for treatment?
A payment plan can be set up to enable a person to pay the charge in instalments for urgent or immediately necessary treatment, as this can be provided before full payment has been received. Non-urgent treatment cannot be paid for in instalments as full payment must be made in advance. Although the NHS can write off a debt for accounting purposes where it is not cost effective to pursue the debt (e.g. the patient is a destitute migrant with no immigration permission, who does not have funds to pay their debt), this does not mean that the debt has been permanently erased and the person may be contacted for payment at a later date. A debt is only likely to be cancelled if the charges it relates to are found not to have applied in the first place. A person who is struggling to pay an NHS debt should check that the charge is correct and seek advice from a debt adviser.
What can a person do if they are refused treatment?
If a person believes that they should receive free secondary or community healthcare but is told they must pay or is refused what they believe to be immediately necessary or urgent treatment, then they can seek legal advice from a solicitor specialising in community care law. Even if a person does not fall under one of the exemptions, there may be scope for the challenge if they are refused treatment but believe that the exemptions are discriminatory and do not comply with the Equality Act 2010 or Human Rights Act 1998.
Disclaimer:
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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