Request

‘This request relates to penalties for non-payment of NHS costs in England and Wales.

The purpose of this request is to provide training to FCA-authorised and local authority debt advisers, to ensure that advice provided to those with NHS penalties is accurate and comprehensive.

1. Please could you provide details of the circumstances (if any) in which a penalty may be repaid in instalments, and any operational guidance which covers this situation

2. Please could you provide details of the circumstances (if any) in which a penalty may be waived, and any operational guidance which covers this situation

3. A redacted copy of a document entitled NHS Dental & Penalty Charges and Debt Recovery Rules dated June 2012 has previously been released (see https://www.rightsnet.org.uk/?ACT=39&fid=11&aid=902_bNJxVR7wPwbRdBNBFVBK&board_id=1). Please could you provide a current version of this document or any successor document.

4. Please could you confirm a. Which external debt collection agencies (if any) are currently contracted to seek recovery of unpaid penalties b. After a penalty is issued and is unpaid, how long would it take before it is passed to an external debt collection agent c. Once a penalty is passed to an external debt collection agent for recovery, how long would that agent attempt to recover it

5. Please could you provide the following data for the calendar years 2019, 2020 and 2021: a. Number of penalty charges issued b. Number of penalty charges cancelled or waived following contact from the patient c. Number of penalty charges passed to an external debt collection agency for recovery action d. Number of penalty charges which have resulted in County Court proceedings’

Response

Question 1

We can confirm that Penalty charges can be repaid in instalments by setting up a Direct Debit on our website, we also consider individual payment arrangements on a case-by-case basis.

Question 2 – Guidance

Currently, due to the current upload functions of our publication scheme we are unable to upload a copy of this document. Please contact nhsbsa.foirequests@nhs.net to request a copy of this. You will see that certain information in this document has been redacted (blacked out). The below explains the reasons for this, the exemptions which apply.

Section 31(1) – Crime Prevention

Some of the information you requested is being withheld as it falls under the exemption in section 31(1) of the Freedom of Information Act. In applying this exemption, we have balanced the public interest in withholding the information against the public interest in disclosing the information. The link below sets out the exemption in full, as well as the factors considered when deciding that in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

https://www.legislation.gov.uk/ukpga/2000/36/section/31

Please see the below factors in favour of maintaining the exemption, and in favour disclosure of the information.

Factors for Disclosure • Provide the public with an opportunity to challenge the basis of the processes used by the NHS to check patient prescription charge exemption claims

• NHS Business Services Authority needs to be held to account to ensure its resources are being used effectively to detect fraud

• The public need to know that there is a rigorous system in place to detect fraudulent claimants of free prescriptions, and ensure that proper checks are carried out

• Where people are receiving free prescriptions when they should not be, this is a misuse of public funds, and therefore the public should be made aware it.

Factors for Withholding • Disclosure would allow an increase in fraudulent claims by patients of entitlement to prescription charge exemptions;

• Increased cost to the tax payer of paying for any increase in fraudulent prescription exemption changes;

• There is a strong public interest in avoiding the likely prejudice to the prevention of crime.

Section 40(2) – Personal Data

Please be aware that I have decided not to release full details of staff as this information falls under the exemption in Section 40 subsections 2 and 3(A)(a) of the Freedom of Information Act.

This is because it would breach the first data protection principle as: a) It is not fair to disclose these people’s personal details to the world and is likely to cause damage or distress to staff. b) These details are not of sufficient interest to the public to warrant an intrusion into the privacy of those staff.

Please click the below web link to see the exemption in full.

https://www.legislation.gov.uk/ukpga/2000/36/section/40

Proof of Entitlement

Following the issue of a penalty charge notice, entitlement to a remission will be confirmed if the patient proves entitlement to one of the appropriate benefits/or that he/she had been issued with a valid certificate at the time they signed the declaration on the prescription/dental form.

Exceptional Circumstances

There are exceptional circumstances where it would not be in the patient’s interest to apply a penalty charge, although the patient’s liability is established.

An administrative easement may apply to the penalty charge, only where the patient has a compelling reason for having claimed exemption incorrectly.

There is no liability for a penalty charge where a patient can show that they did not act wrongfully, or with any lack of care, in respect of the charge in question.

A person who acted with a lack of care is defined as follows:

The person avoided the original charge by being reckless or careless about their obligation to pay, i.e. they did not take the normal amount of care that could be expected of a person in their circumstances, for instance they did not check that they were getting the correct type of benefit, or that their certificate was still valid.

A person who acted wrongfully is defined as follows:

The wrongful act occurs when the patient or their representative claims help with NHS charges to which they are not entitled by completing and signing the declaration.

Vulnerable Patients

It is policy to recover prescription/dental charges where exemption has been claimed incorrectly and to collect penalty charges and surcharges where appropriate. The NHSBSA will take into account the individual circumstances of patients and will deal sympathetically with patients who are in vulnerable groups.

Question 3

The NHSBSA does not hold a document which is the equivalent of the one linked to in your request.

Question 4

a. Which external debt collection agencies (if any) are currently contracted to seek recovery of unpaid penalties.

I am writing to advise you that the information you requested is not held by the NHS Business Services Authority. This is because Debt collection Agencies are not directly contracted to the NHSBSA. They are sub-contracted via our contract with Indesser.

b. After a penalty is issued and is unpaid, how long would it take before it is passed to an external debt collection agent. Section 43(2) – Commercial Interests

Please be aware that I have decided not to release full details of staff as this information falls under the exemption in Section 43(2) of the Freedom of Information Act. In applying this exemption, we have balanced the public interest in withholding the information against the public interest in disclosing the information. The link below sets out the exemption in full, as well as the factors considered when deciding that in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

https://www.legislation.gov.uk/ukpga/2000/36/section/43

Factors for Disclosure • Provide the public with an opportunity to challenge the basis of the processes used by the NHS to check patient prescription charge exemption claims

• NHS Business Services Authority needs to be held to account to ensure its resources are being used effectively to detect fraud

• The public need to know that there is a system in place recoup fraudulent claim fines

Factors for Withholding • Detailed information on the NHSBSA’s approach to debt recovery would be likely to affect debtor behaviour

• Affect the NHSBSA’s ability to recoup funds owed to the public purse.

• Increased cost to the taxpayer

• There is a strong public interest in avoiding the likely prejudice to the prevention of crime.

c. Once a penalty is passed to an external debt collection agent for recovery, how long would that agent attempt to recover it.

The time taken by agents to recover a debt will vary.

Question 5

a. Number of penalty charges issued

2019 1,488,298 2020 130,903 2021 35,252

b. Number of penalty charges cancelled or waived following contact from the patient

2019 121,915 2020 35,156 2021 3,582

c. Number of penalty charges passed to an external debt collection agency for recovery action

2019 40,454 2020 0 2021 1,332

d. Number of penalty charges which have resulted in County Court proceedings

I am writing to advise you that following a search of our paper and electronic records, I have established that the information you requested is not held by the NHS Business Services Authority. As yet, no patients have faced court action. The NHSBSA, in collaboration with NHS England, is currently considering its approach with regard to unpaid prescription charges and penalties to agree the most appropriate action to take as a deterrent to claiming free prescriptions when no valid exemption exists.

Data Queries

If you have any queries regarding the data provided, or if you plan on publishing the data please contact nhsbsa.foirequests@nhs.net ensuring you quote the above reference. This is important to ensure that the figures are not misunderstood or misrepresented.

If you plan on producing a press or broadcast story based upon the data please contact nhsbsa.communicationsteam@nhs.net. This is important to ensure that the figures are not misunderstood or misrepresented.

The information supplied to you continues to be protected by the Copyright, Designs and Patents Act 1988 and is subject to NHSBSA copyright. This information is licenced under the terms of the Open Government Licence detailed at: http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/

Should you wish to re-use the information you must include the following statement: “NHSBSA Copyright 2022” This information is licenced under the terms of the Open Government Licence:

http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/

Failure to do so is a breach of the terms of the licence.

Information you receive which is not subject to NHSBSA Copyright continues to be protected by the copyright of the person, or organisation, from which the information originated. Please obtain their permission before reproducing any third party (non NHSBSA Copyright) information.