To: Chief Executives of all PCTs in England

cc: Other interested parties (for information)

From: David Hickson - campaigner for the NHS

Implementation of Ban on use of "expensive" telephone numbers by NHS GPs

You will be aware of the recent revisions to the GMS contract which impose a ban on use of "expensive" telephone numbers by NHS GPs.

These mean that GPs must now join NHS bodies and other contracted providers in ceasing use of all telephone numbers beginning 084.

The revisions are published by the Department of Health here - DRAFT Standard GMS Contract Variation Notice – April 2010. I understand that identical variations to the PMS contract are also in hand.

I trust that you are now in the process of issuing the variation notice to your contracted GPs.

In the absence of a full briefing from the government, I offer the following guidance on interpretation of the new contractual requirements and my comments on their enforcement.

Summary

• With reference to the various sub-clauses of clause 29B - ALL numbers beginning 084 fall within the category of those which "persons pay more to make relevant calls than they would to make equivalent calls to a geographical number". Whilst some callers may at some times be subject to greater surcharges for calling geographic numbers, there are NO 084 numbers which are exempt from prohibition under the terms of this provision.
  
• With reference to sub-clause 29B.3 - the relevant contract is that for supply of network telephone service, which must be with an authorised provider. Such providers allow migration from a 084 number to the equivalent 034 number within the term of the contract.
  
• I see there as being no case where the fall back provisions under sub-clause 29B.4 will need to be invoked. All relevant arrangements may be modified satisfactorily, given the will to do so.
  

This issue has a long (and continuing) history of misrepresentation and confusion. I strongly urge you to verify all information provided with great care. I deeply regret the fact that this responsibility has been passed down to many local organisations when all telephone tariffs are set nationally. I will continue to do all I can to ease this burden on your staff.

What is "more expensive"

Put simply, for those using Virgin Media landlines, Contract or PAYG mobiles or Public Payphones, calling any 084 number is always more expensive than an equivalent call to a geographic number.

There are many other cases where this is true, however these depend on various factors.

This confident assertion is often disputed, so whilst urging you to verify it, I will attempt to explain further.

My previous briefing on this topic advised that all 084 telephone numbers are generally more expensive to call than ordinary "geographic" numbers because part of the price paid by the caller is invariably shared with the receiving party's telephone service provider, thereby providing a subsidy to the GP's costs at the expense of patients. The only cases where calls to 084 numbers are not more expensive than those to geographic numbers are due to the perverse effects of partial regulation of BT charges.

This effect applies to some telephone tariffs that may be used by patients, including some, but not all from BT. The tariff which applies to each patient and the rates charged by their chosen telephone service provider are totally beyond the control of GPs, their telephone system providers and their telephone network providers. A share of the revenue derived from the caller is invariably passed on through these companies to benefit all users of 084 numbers. Various factors may cause some patients to be perversely shielded from paying the consequent surcharge directly, however this must not be allowed to confuse the true and general position.

Please refer to this briefing and the material in the many links provided there, which describe the situation and the reasons for it in more detail.

Provisions introduced by Directions to NHS Bodies issued in December 2009 and affecting their sub-contractors are now, by these GMS contract variations, explicitly extended to one group of sub-contractors. It must be noted that, as confirmed by their duties under the Health Act 2009 with reference to the NHS Constitution, all NHS bodies must apply the same principles to the terms of all other contracts. This means that NHS bodies are required to subject other contracted bodies providing NHS services accessed by telephone, e.g. Dentists, Pharmacists and Ophthalmologists, as well as out of hours GP service providers, to the same requirements.

Any GP who has been told that any 084 telephone number is not more expensive to call than a geographic number has been deceived (unless there is a qualification limiting this statement to a few telephone providers and tariffs, so that it applies only to some patients). I suggest that any such claim must be supported by evidence of the telephone tariffs used by all patients and details of the relative costs. I am confident that this cannot include any patient using the telephone services listed above.

In theory, it could perhaps be shown that everyone who may call a particular 084 number is using one of the few particular telephone tariffs which make that number no more expensive to call than a geographic number. In such a hypothetical case, then one would have to permit its use. I am personally prepared to dismiss the possibility of this being achieved in practice.

I present this briefing with total confidence. I must urge you to verify this information with authoritative sources.

GPs requiring special telephone numbers

Whilst all 084 numbers provide the financial benefit of revenue sharing to the user, there are also some technical benefits that can be derived from use of any "non-geographic" number.

Ofcom recently introduced the range of numbers beginning 03 (see its publication - "The 03 alternative"). 03 numbers are for use by those who wish to utilise the technical features of non-geographic numbers, but do not wish callers to pay for them.

All telephone service operators are required by regulation to charge for calls to 03 numbers on the same (or better) terms than for calls to geographic (01/02) numbers. This applies to landlines, mobiles and payphones and to the terms of call inclusive packages. Extensive research shows 100% compliance with this regulation.

The technical benefits available with 03 numbers are identical to those available with 084 numbers. The only difference is the lack of a financial benefit to the user at the expense of callers.

In framing its rulings on telephone numbers, the Department of Health was reluctant to specify particular number ranges, having got such provisions badly wrong in the past (see below). It could have simply said that 084 (and other previously banned ranges such as 087, 070, 09 etc., as well as 080 when not subject to special arrangements) are unacceptable, whereas only 01, 02 and 03 are acceptable. This is precisely what the requirement for the cost of a call to be no greater than that of calling a geographic number means in practice.

GPs, NHS bodies and other contractors wishing to apply the technical benefits of non-geographic numbers must now use only 03 numbers, so as to avoid taking subsidy from patients. The principles of the NHS rightly deny them the opportunity to take advantage of the financial benefits of 084 and other revenue sharing numbers. It is acceptable for a NHS patient to incur the incidental third party cost of an "ordinary" telephone call at the particular rate charged by their telephone company, but not for them to incur a surcharge that provides an indirect subsidy to the benefit of the NHS service provider.

It is important to understand that the financial benefit of use of revenue sharing 084 numbers is rarely seen in the form of a cash payment. It is generally applied as a discount against of the cost of telephone services, or retained in place of a charge being levied on the user. Those who deny "profit" or "income" cannot honestly deny financial benefit and are simply playing with words to create a misleading impression.

GPs with long term contracts for provision of telephone service

The GMS contract revisions recognise the fact that some GPs are using expensive numbers in connection with the use of systems to which they have a long term contractual commitment. Indeed, their contract for the supply of network telephone service may also have some period to run. When considering such cases, it is important to understand the following points:

• Regulations limit the provision of telephone network service to certain authorised operators, such as The Talk Talk Group, the company most involved in this provision of service on 084 numbers to NHS GPs.
  
• Arrangements for the provision of network telephone service on a particular type of number may be closely related to the provision of local switchboard equipment and systems, however the two need to be considered separately. This applies where the equipment and system provider has also acted as a sales agent for the network telephone service provider.
  
• Providers of telephone network service on non-geographic numbers (including the Talk Talk Group) permit, and where appropriate encourage, migration from one type of number to another within the term of a contract.
  

Whatever may be the contractual terms for any switchboard or call handling system, it is the contract for provision of network telephone service that is relevant to the number used. This can only be with an authorised provider of such service as the principal. A sales agent and system provider may be keen to retain the benefits of revenue sharing at the expense of patients, and a GP may be keen to avoid incurring costs that have so far been met by patients. It is therefore possible that the position of the network service provider on the issue of migration from 084 to 034 may be misrepresented.

Migration from 084 to 034

Those currently using revenue sharing 084 numbers have the equivalent 034 number reserved for their use, should they wish to migrate. Network telephone service providers (i.e. those who provide the actual network connection and the numbers) support and encourage such migration within the term of a contract. The Talk Talk Group (trading as Opal Telecom) is the major player in this area, providing well over 90% of the service on expensive numbers used by NHS GPs - I cover its policy on this matter in my briefing "NHS GPs using 0844 numbers can change to 0344". Other similar providers apply similar policies.

Some switchboard systems, notably "Surgery Line", rely on use of non-geographic numbers. This is allegedly for the technical, rather than financial, benefits that these provide (although there are grounds for challenging this allegation). There is however no sound reason why those who are contractually required (or perhaps simply wish) to continue using this type of system could not migrate to the equivalent 034 number so as to retain their telephone system, whilst complying with the terms of the revised GMS contract.

I suggest that any GP claiming that their network telephone service provider (e.g. Talk Talk) will not allow them to migrate to a 03 number within the term of their contract for provision of network telephone service should be asked to provide confirmation of this from that provider. It is important that such confirmation is provided by the actual network telephone service provider - not their sales agent, the system provider, whose interests may suffer as a result of such migration.

You may find this TV clip informative in relation to the degree of enthusiasm about the potential for migration to 03 shown by providers of surgery telephone systems - the position has not changed since this recording made on 16 December 2008.

"Having regard to the arrangement as a whole …"

Because there may be cases where some patients do not pay more to call a 084 number, it is possible that some may seek to invoke the quoted provision to suggest that those who pay more can be disregarded as an insignificant minority. A detailed survey of the specific telephone tariffs applicable to all those who call the number in question (as well as the day of the week and time of day when they call) would be necessary to establish whether there could be any truth in such a suggestion.

I suggest that engaging in any such exercise, or entertaining such a suggestion, would be to miss the point about the NHS. The NHS is a UNIVERSAL service available to all; it is not a consumer commodity where the purpose is to achieve the maximum level of aggregated customer satisfaction. Any arrangement for provision of a NHS service "as a whole" must fully INCLUDE every minority interest.

In principle, having just one patient who may need to call the surgery from a public payphone when their home phone is out of order should be sufficient to demand that a 084 number be determined to be more expensive. In practice, one will find that it does not come down to such an extreme situation, however that would be sufficient.

I trust that you will understand the situation where perhaps 80% of registered patients have BT landlines on tariffs without inclusive daytime calls and may therefore not pay more to call some 084 numbers, whereas 20% have PAYG mobiles and consequently pay twice as much to call 084 numbers. I could go on to say that the 80% may be more eloquent in pressing their interests, however I trust that my point has been taken.

Implementation of the ban

The terms of the GMS contract revisions place the responsibility to acquire the necessary understanding of telephone tariffs on the GP. The BMA GPC suggests in its guidance that this information should be obtained from the GP's own telephone system provider (see GPC Guidance: use of 084 numbers in the NHS). The BMA however totally undermines this unsatisfactory suggestion by referring to a totally false assurance given by one such system provider, who cannot be expected to have any competence in this matter. The company in question is not a network telephone service provider; it is indeed an agent for Talk Talk, which invariably charges all of its customers more than the cost of a normal call to call the 0844 Talk Talk numbers used by the agent.

The BMA initially argued that patients should be allowed to be charged for access to "higher quality" services. This is confirmed in its guidance notes. After having lost that argument, it now changes its tune to implying that expensive numbers are not more expensive. (On a personal basis, I am dismayed to see the BMA firstly opposing the principles of the NHS and then switching to endorse a false statement and encouraging its members to be misled. I doubt that these positions truly represent the general view of its membership. Points from our respective positions were brought out in this Radio 4 Today Programme discussion.)

When enforcing compliance with the terms of the GMS contract the PCT has a duty to ensure that any determination made by GPs regarding the relative cost to patients of calling different types of telephone number is sensible and reasonable. There is quite sufficient evidence available to show that any 084 number is more expensive than a geographic number in general. Any exceptions are for particular patient's tariffs, not for particular 084 numbers.

Those who benefit financially from the revenue share that is provided on every call to a 084 number have long sought to pretend otherwise. In 2005, they were successful in totally misleading the Department of Health into the totally false belief that 084 numbers offered "a guaranteed low rate call" (see Hutton rings the changes on NHS telephone numbers).

The Department of Health has now retreated to a position of uncertainty, as it is no longer prepared to offer any specific guidance. Despite the fact that telephone tariffs are set nationally for each type of number, responsibility for ensuring that each GP is acting properly in this respect has been passed down to PCTs.

I draw your attention to the positions seen to be taken by the various parties, so as to help you understand how we got to where we are and to enable you to appreciate the type of representations that you may be receiving. It is of course for you to make your own determinations and judgements as you serve us in administering "our NHS".

(I will of course be making representations to the new ministerial team at the Department of Health in the hope of getting more solid guidance issued. There may now be a greater willingness to acknowledge a serious error made by an earlier minister than was the case a few weeks ago!)

My position and role

My only interest in this matter is as a patient and part-owner of "our NHS". I have no personal, Political or commercial interests in this, or any related, matter. I am deeply concerned for the principles of our NHS and have conducted extensive research into all of the relevant issues to gain an understanding of the problem and to be sure that there is a fair and workable solution.

"Our NHS" is funded through taxation, supplemented by specific additional charges sanctioned by parliament at set rates and subject to exemptions. Providers cannot be permitted to obtain funding from patients through charges as they use NHS services, either directly or indirectly. This is the vital point of principle which I am fighting to defend.

(Other issues are raised in relation to contributions by patients where spare NHS land is used to provide income from car parking and retail concessions - however these are more complex as they involve the provision of additional non-NHS services.)

In progressing the matter of expensive telephone numbers, I am happy to provide my informal assistance to PCTs. If invited to collate and provide formal evidence about telephone charges in a formal capacity that may be regarded as being authoritative, e.g. through some agency such as NHS Primary Care Commissioning, I would be delighted to assist.

Please feel free to contact me for further information and advice.