PCTs failing to understand DH Guidance

... on use of expensive telephone numbers to contact NHS providers

Introduction

Contrary to the understanding of many PCTs, the Department of Health position on the topic of use of expensive telephone numbers to contact NHS providers is very clear, simple and unqualified.

It is specified in the wording of Directions to NHS bodies [Directions] and revisions to the GMS contract [GMS] - NOTHING MORE.

Additional clarification of the Directions was provided in a "Dear Colleague" [letter]. No further guidance has been issued by the Department. This position has been confirmed in many written answers (see below).

The requirement is very simple, it amounts to -

prohibition of the use of telephone numbers which can cost
NHS Patients more than equivalent calls to a geographic number

Despite the clarity of the statement, there is a widespread mistaken assumption that the requirement is much more complex. In particular, there is a failure to recognise that the NHS is a universal service, with rights that extend to all patients, not just to a select group, even if that represents a majority.

For the record, and with apologies for the necessary repetition, I will quote all of the relevant references from the publications referred to above. Some quotations cover what is permitted, others what is prohibited (please use the respective links given above to confirm the context):

"... having regard to the arrangement as a whole, persons will not pay more to make relevant calls to the practice than they would to make equivalent calls to a geographical number." - GMS 29B

"... having regard to the arrangement as a whole, persons pay more to make relevant calls than they would to make equivalent calls to a geographical number ... " - GMS 29B.2.1

"... having regard to the arrangement as a whole, persons will not pay more to make relevant calls than they would to make equivalent calls to a geographical number ..." - GMS 29B2.2

"... having regard to the arrangement as a whole, persons will not pay more to make relevant calls to the NHS body than they would to make equivalent calls to a geographical number." - Directions 2(1)

"... having regard to the arrangement as a whole, persons pay more to make relevant calls than they would to make equivalent calls to a geographical number ... " - Directions 2(3)(a)

"... having regard to the arrangement as a whole, persons will not pay more to make relevant calls than they would to make equivalent calls to a geographical number ..." - Directions 2(3)(b)

"... prohibiting the use of telephone numbers which charged the patient more than the equivalent cost of calling a geographical number to contact the NHS." - Letter para 1.

"... contact telephone numbers which have the effect of the patient paying a premium above the cost of a call to a geographical number." - Letter para 2.

"These Directions do not prohibit an organisation from using specific number ranges for the purpose of contacting NHS services. Organisations remain free to use non-geographical number ranges such as 084, providing that patients are not charged more than the equivalent cost of calling a geographical number to do so." - Letter para 3.

Could it be any clearer?

Possible Omission

The only clarification that may have been omitted is the possible need for PCTs to understand that in the UK we purchase telephone call services from telephone call service providers, not from the person we are calling.

The person called may receive a financial benefit, but they do not determine the charge we pay, relative to the cost of an equivalent call to a geographic number. Obviously callers can expect to incur the cost of this benefit, however neither the person called, nor any agent of theirs, can control any further additional cost we may incur, simply due to the existence of "revenue sharing" on the call. (In some cases a benefit of 2p per minute, causes callers to incur an additional cost of 41p per minute).

We pay the charges set by our chosen provider under the terms of our chosen tariff. These are subject only to the charge regulations that are currently in force - not the regulations which some may wish to see, or mistakenly believe to be in effect. We pay the charges which are set, not those which some may argue "should be charged".

All telephone call service providers set rates for the UK as whole. Certain services are only provided to residents of the Kingston-upon-Hull area and other services are not available in all areas - there are however no local price differences.

Telephone call service providers publish their various tariffs, so these are available for inspection by GPs, telephone system providers to GPs, PCTs and all other persons. All parties may wish to determine the cost of calling particular numbers as against the cost of an equivalent call to a geographic number. NHS providers have a duty to make themselves aware of whether or not any caller pays more than the cost of an equivalent call to a geographic number to call their number.

I have prepared a summary of relevant charges from widely used providers, with links to their published tariffs for verification - a regularly updated version may be viewed here.

It would have been helpful for the Department of Health to have done something similar to save the cost of the same exercise being repeated by each practice and PCT, not to mention the danger of it being done ineffectively or not at all, however it chose not to do so.

A further Omission

It would perhaps have been helpful of the Department of Health to advise that those who are committed to a long term contract for systems which require the features of a non-geographic telephone number are able to migrate to a 03 number at any point during their telephone service contract without penalty.

Migration to 03 guarantees compliance with the terms of the Directions and Contract Revisions because all telephone service providers (under regulation) charge no more for calls to 03 numbers than for equivalent calls to geographic numbers.

The contract renewal, contract termination and "call back" provisions in the Directions and Contract Revisions are totally unnecessary, because this change to the arrangements for telephone service can be made in every case and at any time. Lease contracts on surgery telephone equipment and service contracts for telephone system software may be maintained notwithstanding revisions to a contract for provision of network telephone service. The possibility of premature termination of such contracts is of no direct relevance to the issue of use of expensive telephone numbers.

It is deeply regrettable that many practices and PCTs are unaware of this fact. Much energy is being wasted on the issues of contract termination, non-renewal and arranging to call back to patients.

The current position

The deadline for compliance with the requirements was 31 March 2011. This listing shows the PCTs with GPs in breach - cases are listed and shown on a map.

The Department of Health was, and remains, correct to say that "Organisations remain free to use non-geographical number ranges such as 084, providing that patients are not charged more than the equivalent cost of calling a geographical number to do so."

The Department clearly wished to cover the possibility of forthcoming changes to telephone charges, as Ofcom had indicated the imminent possibility of regulatory changes affecting 084 numbers (0845 in particular). The regulations cover the reality of what callers actually pay, which is potentially subject to change. I address the current position in the following statement.

For a large number of commonly used tariffs 1, i.e.

BT Anytime 2, BT Basic, ALL Virgin Media landline tariffs 3,

ALL commonly used Mobile contract and Mobile PAYG tariffs

and the tariff for public payphones,

weekday daytime calls to 084 numbers cost more

than an equivalent call to a geographic number.

Notes: 1 Adherence to the terms of the tariff is assumed. 2 BT Anytime exceptionally includes calls to 0845 numbers. 3 Some Virgin Media tariffs offer cheaper calls to some 0844/3 numbers under some circumstances.

Unless it can be shown that no "person" would ever call under the terms of the tariffs listed then no 084 number can be used.

There are tariffs and circumstances under which unregulated penalty charges imposed for calling geographic numbers outside the terms of the Call Plan in effect exceed the regulated charge for calling 084 numbers. These perverse and anomalous cases are likely to disappear if the current Ofcom proposals for revised regulation are taken forward to meet the declared objective of simplification.

(These new Ofcom proposals will enable BT to join its competitors by being able to raise an "access charge" on calls to all 084 numbers and require the "service charge" element of currently bundled rates to be declared by users. The expectation, by the Department of Health and others, that revenue sharing would be removed from 0845 was not met. Further announcements from Ofcom are expected in the Autumn of 2011.)

To maintain that use of any particular 084 number is compliant one must disregard the possibility of any call being made under the terms of one of the tariffs listed above.

By permitting use of a 084 number, a PCT excludes those subject to any of these tariffs from the meaning of a "person" in the terms of the Directions and Contract Revisions.

Misrepresentation

The Guidance issued by the Department of Health is the Guidance issued by the Department of Health. Certain parties may have their own ideas about the Guidance which they would have wished the Department to have issued. They are entitled to their opinions, but they cannot claim that the DH Guidance is anything other than what is actually published by the DH. Any definitive statement about the Guidance issued by the Department, or its policy position, must include the appropriate references if it is to carry any authority.

Sadly, there are materials in circulation which make allegations about Guidance from the Department of Health, and its position on relevant issues, which cannot be sustained in the way that they have been understood. From the quotations in the following section of this briefing it would appear that some have been misled into believing that what is stated below represents the position of the Department of Health.

I offer quotes, highlighting key phrases and adding brief comments:

From - "GPC GUIDANCE: USE OF 084 NUMBERS IN THE NHS" January 2010, issued by the BMA and published here.

"GP practices (and all others bodies within the NHS using 084 numbers) should obtain written confirmation from their phone service supplier that the charge for a call to their number is no more expensive than making an equivalent local call. The DH has been assured by the main phone service supplier, NEG (Network Europe Group, a national provider of telephony services such as Surgery Line), that this is the case."

The competence of a particular "phone service supplier" to consult the tariff tables published by the various suppliers to callers is no greater than that of any other party. The idea that NEG is in any better position to provide the necessary assurance about the charges levied on callers than any other person is mistaken. NEG cannot be accountable for anything other than the accuracy of its reading of information published by others, and ensuring that the extent of its research is sufficiently comprehensive to cover all those who may call the practice.

There is no basis for an apparent claim that the Department of Health believes NEG to have privileged access to the tariffs of telephone companies, knowledge of which tariffs apply to callers, or particular skill in reading and interpreting publicly available documents.

Whilst NEG may have sent a document offering an "assurance" to the DH, there is no evidence that the DH has accepted it as such. It is likely that the DH will recognise that because NEG has an interest in the matter, as the reseller of Talk Talk numbers, it may have difficulty in approaching the task of investigating competitors' call charges with the necessary objectivity.

"As long as the tariff is equivalent to local rates, and the practice obtains a written guarantee from their phone supplier (usually NEG) that they are charging rates in line with local geographic calls, then they will be deemed to have fulfilled their medical services contract."

Rates charged by NEG (or any other supplier of surgery switchboard systems) to unspecified persons are of no relevance whatsoever to compliance with the relevant Directions and Contract Revisions. It is the charges imposed on callers by their telephone call service provider which are relevant. (See also the comment below the next quotation.)

There is no indication that "will be deemed" represents anything more than an opinion held by the BMA. There is no evidence whatsoever to show that the DH or anyone else would share the rather odd view that some unspecified charge levied by NEG had anything to do with compliance with the relevant contractual requirements.

"Practices can also ask their supplier to provide the information necessary to demonstrate that their call charges are in line with geographic call charges, as required by the new legislation."

This comment touches on the Omission from the guidance highlighted above. It falsely implies that it is charges imposed by the practice's telephone system provider ("their call charges") rather than those incurred by callers which are covered by the Directions and Contract Revisions.

In drafting the Directions and Contract Revisions, the Department refers only to the cost incurred by callers, whether they take service from NEG or any other provider. In fact, NEG does not provide network telephone service to private individuals, so no NHS patient pays charges set by this company.

From - Circular letter "Dear Surgery Line User" issued by NEG - 19 January 2010, copied and distributed by many Surgery Line Users - copy published here.

"The Government recognised that some telecoms providers (e.g. NEG) 'have chosen to charge no more for an 084 call than a call to a geographic number when dialing from a fixed line'"

Although it has failed to address this point in its Guidance, one must assume that the Department of Health is aware that NEG does not set the costs which callers incur (relative to that of an equivalent call to a geographic number) when calling NHS providers. The original reference was to the telephone company (BT) that chooses to impose unregulated "penalty charges" for 'out of contract' calls to geographic numbers, which exceed the regulated charge for calling 084 numbers, and those others who mirror its charges.

The Directions and Contract Revisions make no reference to "dialing from a fixed line". If this qualification applies to subsequent comments from NEG, then it is not stated.

"The Directions from the Secretary of State make clear that any NHS organisation is free to choose to continue with an 084 number. All that is required is for the NHS organisation to satisfy itself that the cost of calls to the NHS body is no higher than equivalent calls to geographical number.

"Having held many meetings with the Department of Health over the past year, we understand that the Department of Health would be happy for an NHS body such as yours to get this reassurance in the form of this letter from NEG to you confirming that the cost of calls via the Surgery Line solution is no higher."

There is no evidence to show that the Department of Heath regards all Surgery Line users, including GMS contractors, as "NHS organisations" or "NHS bodies".

There is no reason why NEG could not consult the relevant telephone tariffs so as to establish the relative cost incurred in calling any particular number to which the Surgery Line system is connected, as against that of an equivalent call to a geographic number. If somehow reaching the false conclusion that the cost was no greater, then there is no reason why NEG could not provide the reassurance which it wishes to offer with reference to the actual requirement stated by the Department of Health.

There is however no evidence to show that the Department of Health would be happy with such a reassurance if it were ill founded. As NEG offers no indication of the extent of its research into telephone tariffs, nor the period for which this is thought to be valid, one must have cause to question the reliability of its reassurance.

"During the consultation period, we provided evidence to the Department showing the comparative cost of calls to NEG Surgery Line under your existing contract compared with the OFCOM regulated tariff cost of calling a geographic number. The Department accepted our evidence, ..."

Ofcom does not regulate the cost of calling geographic numbers. BT is the only telephone service provider subject to absolute regulation of some of its charges - this does not include any of its charges for calling geographic numbers. There is no evidence that the Department of Health accepted this simple falsehood. This apparent misunderstanding (or deliberate misrepresentation) of the nature of telephone charge regulation should give any reader cause for concern.

The actual evidence submitted by NEG was flawed in a number of respects, not least because it only covered only one provider and only one of its tariffs, whilst claiming to make a universal point. The actual figures given were even incorrect with reference to that tariff, to the point where they inverted the proper conclusion. I covered this at length at the time - see this commentary.

There is no evidence to show that the Department of Health did anything more than acknowledge receipt of this submission. It may have accepted the document, this does not mean that it accepted the arguments advanced on this point! (At a different point in its submission NEG argues that patients are prepared to pay more if this means that they can thereby enjoy a better telephone service from their GP!)

"your decision to continue to deliver excellent services for your patients using NEG Surgery Line has the full support of the Department of Health"

The Department of Health may well support use of the Surgery Line system - that is not the point at issue. Given that the letter addresses only the regulations covering use of expensive telephone numbers as a means of funding the system, it would not be unreasonable for the reader to wrongly infer that this represents an allegation of Department of Health support for the funding arrangements.

Misunderstandings

I quote below extracts from recent communications from Primary Care Trusts, indicating how they are interpreting their duty to enforce the terms of the Directions and GMS Contract Revisions. In many cases they seem to believe that the additional qualifications which they have applied to the strictly drafted terms reflect DH Guidance and policy.

Every one of these statements indicates some degree of failure to understand the simply drafted terms of the Directions and Contract Revisions and a failure to recognise the option for re-arrangement which is available to every user of 084 numbers.

I quote extracts from various statements below. These were generally provided in response to being challenged over a failure to enforce the terms of the Directions and Contract Variations. In each case, I will be happy to provide full references and copies of the entire item from which I quote.

I have underlined key phrases. Please read these comments recalling that the significant, unqualified guidance from the Department of Health is expressed in the phrase "persons will not pay more".

From Berkshire West PCT (updated 19 Jul)

"The advice given by the Department of Health was that the cost of calling the 0844 numbers should be in comparison to the cost of using a fixed line to call a geographical number at the local BT rate."

From Surrey PCT

"... some telephone packages mean that patients don’t have to pay for daytime phone calls, but the 0844 might not be included in this and therefore they will be charged for these numbers.  If this is at a local call rate – patients should still be expected to pay. ... if practices are meeting the terms of the Department of Health directive we are unable to influence this."

From West Kent PCT

"Generally calls made to NHS contractors using 0844 number should be charged at a local rate if calls are made from callers with a BT Standard Rate Tariff only. However if a customer is not on a Standard Rate Tariff their Service Provider can charge more for the call, if that is the case the customer should follow this up with their Service Provider as customers are informed of the T & C their Service Provider offer and this is so as there is freedom of choice as to which Service Provider a person signs up to for their phone service"

From East Berkshire PCT

"GP practices across east Berkshire are committed to ensuring patients pay no more than they need to when contacting their local surgery. The PCT is encouraging practices to fully explore all options when current contracts are up for renewal."

From Dorset PCT

"We can confirm that we have three practices in Dorset which use 084 numbers. These practices comply with the regulations, which means a call to them would cost no more than a call to a geographically equivalent number."

From Norfolk PCT

"We are working with practices to make sure they put in place arrangements which are convenient to patients and consistent with contractual requirements."

From Bournemouth and Poole PCT

"Within the NHS Bournemouth and Poole area there are nine practices using an 084 number, all of which report to be charging local rates. We have requested that a contract variation is signed which commits practices to reviewing call costs to ensure they are in line with guidance so that calls to their 084 number are charged at a local rate for fixed lines."

From Warwickshire PCT

"Primary Care Trust NHS Warwickshire said it was happy that no surgeries broke rules"

From Rotherham PCT

"The majority of our practices use the 0844 numbers or a local number. Calls to 0844 numbers are charged at the same rate as a local call when dialed from a landline."

From Barnsley PCT

"While for some it is still possible to be charged more than the cost of a landline call when phoning from a mobile, we are committed to supporting those GPs that operate 084 numbers to make changes"

From Leicester City and Leicester County and Rutland PCTs

"We do recognise the use of this number is a problem for patients"

"if practices were unable to renegotiate or terminate contracts they should consider a system where a patient can ask for a call back from the surgery"

From Suffolk PCT (Added 30 July 2011)

"We are in discussion with the practices and the provider to try and find a way of exiting earlier from the contracts."

From Bedfordshire PCT (Added 31 July 2011)

"We have been assured by the GP practices using 0844 numbers that their phone providers do not charge patients more than the cost of calling a local geographical number. However, neither NHS Bedfordshire nor the practices have access to details regarding the cost levied by patients’ own telephone providers for calling these numbers."

The accountable officers of these PCTs (and others) must be made to recognise that they are deciding to limit the scope of the simply drafted requirements for themselves. They are not guided, directed or bound by the Department of Health to apply any qualification to the simple phrase "persons will not pay more".

ALL patients must be able to access NHS services without charge from the provider, as the first of their rights under the terms of the NHS Constitution. The Health Act 2009 places PCTs under a statutory obligation to have regard to these rights.

Confirmation of the duty of PCTs

Many written ministerial answers from the Department of Health have confirmed the position. The most recent was on 14 June 2011, as follows:

"The Department issued guidance and directions to national health service bodies in December 2009 on the cost of telephone calls, which prohibit the use of telephone numbers which charge the patient more than the equivalent cost of calling a geographical number to contact the NHS. It is currently the responsibility of primary care trusts to ensure that local practices are compliant with the directions and guidance."

One may also read the same essential point being made as follows:

9 June 2011

8 June 2011 (again)

8 June 2011

5 May 2011

11 February 2011

25 January 2011

At the time of publishing this blog entry I am hoping that further clarification will emerge when this matter is raised in Questions to the Secretary of State for Health on Tuesday 12 July 2011.