Daisy Group confirms how its Surgery Line users fail to comply with NHS Regulations on use of 084 telephone numbers

UPDATE !! (1 March 2012)

Since this blog entry was first published, the content of the Daisy Group document being discussed and linked to below has been removed, being replaced with the legend "Update Coming Soon".

I am not aware of any change to the nature of telephone tariffs that could affect what is needed to achieve compliance with regulations that cannot be amended without the approval of parliament.

When the updated version is published, I will reconsider the comments published below.

In the meantime (for reference purposes only), I have uploaded a copy of the release of the document to which the comments below refer. It may be viewed at this link.

Daisy Group has, perhaps unintentionally, placed NHS GP users of its Surgery Line telephone system in an almost impossible position, if they are seeking to pretend that they can continue to use 0844 telephone numbers.

It has published a document, oddly entitled "Statement of Compliance with NHS Regulations". The statement suggest a possible basis for compliance, but only in the event that all callers to the practice can be shown to fall into certain very particular groups. As this does not include subscribers to the most widely-used landline tariff - BT Unlimited Anytime - it is difficult to see how any GP could possibly comply.

This Statement has to be seen in the context of the recently published confirmation of the relevant regulations, issued by the Department of Health - "The use of 084 numbers in the NHS".

This guidance confirms what is necessary for a user of a 084 number to achieve compliance:

•	The GP must be able to establish that all callers are not paying more to call its number than they would to make an equivalent call to a geographic number.
OR	... if it is unable to do so ...
•	The GP must be able to show that the cost imposed for following any remedy (e.g. migration to the equivalent 034 number) is "unreasonable".

Daisy addresses these points as follows:

•	It suggests ways in which a severely limited and highly selective view of the array of relative call costs incurred under the terms of the many tariffs available to callers could lead one to conclude that callers do not pay more to call the 0844 numbers that it provides to its Surgery Line customers. (See below)
•	It confirms that Surgery Line users may operate the system effectively by using either 084 or 03 numbers. Daisy confirms elsewhere that this includes the 034 range which is reserved exclusively for the purposes of migration from existing 084 numbers (see "Surgery Line - Different Number Ranges"). Daisy offers no evidence to show that it imposes unreasonable charges on those who choose to migrate.

The latter point is especially important, because this dismisses the argument of the BMA, which claims that the costs of compliance which would be incurred on migrating from a 084 to a 034 number are unreasonable (see "BMA disputes DH guidance on premium rate practice phone numbers").

For the statement to offer a full assurance of compliance, and to support the allegations made by the BMA, it would have to provide clear evidence that Daisy imposes "unreasonable" costs for migration.

---

How GPs could be able to comply whilst continuing to use a Daisy 0844 number

The relevant regulations have always allowed for the possibility that 084 numbers could continue to be used under very particular circumstances. It is for the GP to demonstrate that these circumstances exist for their callers.

The Daisy statement offers some such examples, suggesting that its customers may be able to demonstrate that these apply to them. As it is necessary to make a determination "having regard to the arrangement as a whole", calls from all types of telephone service and tariff have to be considered. I highlight a summary of the position for each, as given in the Daisy statement, below.

The statement confirms that Surgery Line customers generally use "type g11" and "type g6" 0844 numbers, "because a portion of the income generated from calls (equivalent to roughly 4p and 5p per minute respectively, including VAT) can go towards funding the cost of the enhanced telephony system and other improvements to the surgery". One might think it foolish to pretend that such income could be provided other than through additional call charges, however Daisy contends that a GP may be able to show that only perverse cases apply to callers to its surgeries, so as to support a claim of compliance with the regulations.

Public Payphones

Daisy states that calls from public payphones represent less than 1% of calls made.

As the rate for calls to all 0844 numbers is greater than that for calls to geographic numbers (£1.00 vs £0.60p for the average duration call claimed by Daisy), a GP seeking to show compliance would have to demonstrate that this low rate of usage of public payphones was in fact zero in the case of calls to its surgeries.

Landlines

Daisy offers only what is described as being the "best possible comparison". These words are well chosen, as is the particular singular example used - "BT Unlimited Weekends". (I refer to "best" as being from the perspective of one seeking to demonstrate compliance - this example is in fact most unusual and even perverse.)

BT is prohibited by regulation from adding to the rate of the revenue share passed on to the benefit of the user of a 0844 number. The rates for these calls are fixed (see above) and they are not included in any Calling Plan. The rates charged by BT for geographic calls are not regulated (this regulation ended in 2007).

BT offers customers the choice of a Call Plan to reflect the times when they make calls. The "Unlimited Weekends" Plan covers calls to geographic numbers made at the weekend. If making calls to geographic numbers at other times there is an "out of plan" penalty charge, currently 7.95 pence per minute for weekday daytime calls.

The most popular Call Plan for BT customers is "Unlimited Anytime", which covers calls to geographic numbers at all times. If any significant number of callers to a GP subscribe to BT Unlimited Anytime" - the most commonly applicable landline tariff, then it cannot comply with the regulations all calls to 0844 numbers will cost more - ensuring non-compliance.

The rates given by Daisy are the "out of plan" charges which apply to " BT Unlimited Weekends" subscribers, for calls to the 0844 numbers provided to its customers (not all 084 numbers, as stated). There is a minor error made in stating the name of the Call Plan - it is given as "the BT weekend anytime plan". I sincerely hope that this error is not likely to cause confusion between the "Weekends" and "Anytime" plans! If anyone were able to show that any such confusion was deliberately generated by Daisy, rather than being the result of an uncorrected error, then this would be a most serious allegation to make.

Choice of this very particular example, exploits the perverse effect of obsolescent regulation on BT (Ofcom proposes to lift this shortly) and ignores the fact that calls originated by BT represent less than 40% of residential landline calls.

A Surgery Line user contemplating a claim of compliance on this basis would need to offer evidence to support Daisy's claim that consideration limited to this one tariff, under which callers incur a penalty charge for "out of plan" calls to geographic numbers, is adequately "comprehensive".

Mobiles - contract

Daisy claims that one cannot consider the possibility of those who benefit from calls to geographic numbers being included in bundles paying more to call 0844 numbers, which are never included. It suggest that to do so one would have to determine an assumed rate for the inclusive call, which it rightly maintains is "virtually impossible to ascertain".

This suggested theoretical approach ignores the reality of the situation, which is that when making a call the caller has already committed to whatever package they have. If the cost of a non-inclusive call is additional (as it would be for anyone who does not exceed their package allowance) then it must be more expensive.

A Surgery Line user contemplating a claim of compliance on this basis would therefore have to offer evidence to show that no caller would be able to call a geographic number within an allowance, i.e. with no additional cost. As many mobile packages offer "unlimited", rather than "bundled", calls to geographic numbers, this would be rather difficult, one could say "virtually impossible".

Daisy refers to evidence about the average cost of "out of bundle calls ... to an 084 number from a contract mobile phone". This data will include calls to the more numerous 0845 numbers, which have a much lower "revenue share" component, are subject to termination rate penalties imposed by BT and are therefore commonly charged at a lower rate. Published tariffs show that "out of bundle" calls to 0844 numbers are frequently far more expensive. This evidence is therefore of no relevance, as it does not address the particular issue. The issue of compliance in respect of callers from contract mobiles is fully addressed above.

Mobiles - PAYG

Daisy points out that PAYG users make fewer calls than contract users. Indeed the high cost of all calls would mean that they would only use them for important calls, such as contacting their doctor.

Daisy claims to have undertaken an analysis of selected providers "having a 55% market share and found that their charges for calls to (unspecified) "non-geographic numbers" were no greater than those of calling geographic numbers. (Daisy makes no comment about the relative cost of calling the particular numbers in question!)

Whilst there could be quibbles about Vodafone, O2 and Tesco Mobile because geographic calls are only cheaper in some cases, there is no question that Orange, T-Mobile, 3, Virgin Mobile and many others invariably charge PAYG users more for calls to 0844 numbers than geographic numbers.

A Surgery Line user contemplating a claim of compliance on this basis would therefore have to show that none of its PAYG callers subscribed to the tariffs of the providers listed above, or, in some cases, not to particular tariffs..

Conclusion

It is theoretically possible for a GP to conduct the extensive research required to establish that all of their callers fall into the particular groups, as suggested by Daisy, and as necessary to prove compliance. One would hope that any PCT verifying compliance would take the trouble to go through this evidence, so as to ensure that no significant possibilities had been missed. It is very difficult to imagine how such an exercise could be undertaken properly, given the numerous possibilities that have to be excluded.

The one important point, and perhaps the "clincher", is that subscribers to BT Unlimited Anytime - the most widely used landline tariff - invariably pay more to call the 0844 numbers used by Surgery Line customers than an equivalent call to a geographic number. It is for Daisy to advise its customers in whatever way it wishes, however it is fair to draw attention to the omission of the most widely used landline tariff from its briefing.

What to do if you are paying too much to call your NHS GP

If your GP is using a 0844 or 0845 telephone number and this costs you more than the cost of an equivalent call to a geographic number, then the practice is in breach of its NHS contract.

(In theory, there may be circumstances in which it is unable to migrate to the equivalent 034 number, but I have seen no evidence of any such case.)

My suggestions for actions you may wish to take follow. Please contact me at any point for detailed advice, support and assistance.

Update - 24 February 2012

This briefing was published before I became aware of the Further Guidance issued by the Department of Health, as covered by this item. My Suggestions are unchanged, as this Guidance does not in any way change the position. The only possibility is that more PCTs and practices will consider complying, if they had previously failed to take the trouble to understand the terms of contract revisions.

The efforts of Which?

I support the efforts of Which? to use its position to collect a large amount of evidence so as to draw attention to this issue. I do not however believe that the failure of the government to take action has got anything whatsoever to do with it being unaware of what is happening.

My Suggestions

♦	Remind the practice that it is under a contractual duty to "ensure that, having regard to the arrangement as a whole, persons will not pay any more to [call the practice] than they would to make equivalent calls to a geographical number".
	ο	Ask if you are considered as being a person who calls the practice - part of the arrangement as a whole.
	ο	Ask for a copy of any confirmation of compliance provided to the Primary Care Trust, which administers the contract. This may cover the relative cost of calling or the inability of the practice to migrate to the equivalent 034 number.
	ο	Let the evidence speak for itself. It is the duty of the Primary Care Trust to enforce the terms of the NHS contract; this has nothing to do with any contractual relationship between you and the practice. Not yet anyway!
♦	Speak to the Primary Care Trust PALS department and ask if they are enforcing the requirement for GPs not to use telephone numbers that cost callers more than the cost of an equivalent call to a geographic number. You will probably need to continue the exchanges in writing.
	Many PCTs have chosen to adopt their own policy of tolerance, rather than enforcing the terms of the contractual requirements.
	ο	If the practice is deemed to be compliant with the PCT policy, ask for a copy of this policy and the evidence provided by the practice to demonstrate compliance with that policy.
	ο	If the PCT indicates that it is enforcing the terms of the contract, ask why this requirement has not been enforced in the case of your GP, as the deadline for compliance was 1 April 2011. Offer your assistance.
♦	Contact your local media to advise that the NHS in your area has been suspended as a universal service and that your rights to access services without charge are not being enforced. They will be keen to know of:
	ο	The reality of the situation for you
	ο	The false evidence of compliance provided by the surgery
	ο	The improper policy being followed by the Primary Care Trust
♦	Raise a complaint with the Health Service Ombudsman against the accountable officer for the Primary Care Trust (the Chief Executive of the PCT "Cluster") for failing to discharge their statutory duty to have regard to the NHS Constitution in exercising their NHS functions.
	ο	The stated policy of the Trust should represent adequate evidence of this failure in respect of:
	ο	The right to access services without charge.
	ο	Failure to apply the principle that NHS services are available to all on equal terms.
♦	Approach your MP to see if they are prepared to support you in presenting a formal complaint to the Parliamentary Ombudsman regarding the failure by the Department of Health to ensure enforcement of the contractual requirements. This failure is most clearly demonstrated by:
	ο	Failure to recognise evidence of breaches, as declared by the Minister in parliament.
	ο	Failure to contradict false statements about the Department approving use of expensive numbers when provided by a certain company. (False allegations about the Department's position have been accepted by many PCTs.)
	ο	Failure to respond to requests for clear guidance from PCTs. Further guidance has been promised to, and expected by, PCTs since April of 2011 - but none has been issued.

I recognise that many will be reluctant to follow all of these steps. I have myself approached every PCT in England over the last two years with briefings and urging them to respect the principles of the NHS. I have also briefed every MP with constituents who are affected.

My own GP is happily one of the many who support the principles of the NHS. The head of practice has confirmed to me that he "would not touch of on those expensive numbers with a bargepole".

Why this is necessary

The current UK government clearly believes that, like its predecessor, it is responding to public demand in seeking to replace our beloved National Health Service, funded by taxation, with an alternative system which will, in time, be largely funded by insurance and cash payments to GPs and other service providers. It can however only do so for England, unless it reverses provisions of the devolution settlements.

It is for those of us who do not wish for this to make it plain that we are not prepared to accept the principles of the NHS being disregarded, whilst they remain in force, and even before the necessary provisions have been placed before parliament. It is important for campaigners to understand that the current Bill does not itself replace the NHS. It simply removes the structures that enable it to work as a National service and replaces them with alternatives suited to a consumerist alternative. Rather than putting in measures to address the inevitable growth in public spending on healthcare, it opens the door to unlimited spending - in the sure knowledge that this cannot come from the public purse.

Tolerance of a few pence or a few pounds cost to provide a subsidy of a few pence on every telephone call is a very modest breach of the principles of the NHS. A clear and determined failure to respond to the challenge to address this abuse cannot but indicate that these principles mean nothing. What is perhaps worse is that they are being disregarded, whilst being defended with worthless words.

Open message to Simon Burns regarding NHS GPs using 084 telephone numbers

To: Simon Burns MP, Minister of State (Health Services)

Cc: MPs attending the debate on 24 January - notably Bob Ainsworth MP, Primary Health Media, Health Bill campaign organisations

Mr Burns

NHS GPs in breach of their contracts by using 084 telephone numbers

In responding to the Westminster Hall debate on this matter, on 24 January 2012, you stated (at Col 55WH):

"People say that there are 1,300 GP practices that charge more than they should; what they do not say is which practices they are, and they do not provide the robust proof that overcharging is happening".

If you were referring to myself and those who have repeated the statements in my briefing "Parliament to debate 'Use of 084 telephone numbers in the NHS'", then you misrepresented my position.

The number of cases

In my briefing, I stated "nearly 1,300 NHS GP surgeries in England continue to use these expensive numbers".

As you appear only to be interested in information presented by "practice", rather than "surgery", I have now taken great efforts to identify the practice to which each of the surgeries presenting a 084 number on NHS Choices belongs.

I have published this list of practices, with links to the relevant surgery entries on NHS Choices, to be accessible via this link - http://tiny.cc/GP084Practices.

There are 1,050 practices listed, with 222 additional surgeries, giving a total of 1,272 surgeries - "nearly 1,300".

"Overcharging" by GPs

I have never suggested that NHS GPs are over-charging. I am most disturbed by your quoted suggestion that NHS GPs "should" be able to impose some charge, but that the permitted level is alleged to be being exceeded.

I recognise that you are currently seeking to defend proposals for a new "patient focussed" health service to replace the UK’s "National Health Service" in England. Under such a consumerist system, costs would naturally be expected to properly fall on the patient, rather than the nation, through charges imposed by the provider. We are however still dealing with the NHS, not some future system in which the principle of "free at the point of need" is replaced, perhaps by "individuals get what they pay for".

The revised NHS GP contract terms address only the cost incurred by callers as a consequence of the choice of telephone number made by the practice, not any charge that is directly imposed. It should be obvious that, when setting their charges, telephone companies pass on the cost of the revenue share, which they incur when originating calls to all 084 numbers.

Apart from a few tariffs where exceptional circumstances apply, this will cause the cost of a call to a 084 number to exceed that of an equivalent call to a geographic number. The contractual requirement to make determinations "having regard to the arrangement as a whole" precludes exclusive use of these exceptional cases.

I have never made the foolish mistake of suggesting that GPs, or any other third parties, exercise any control over the relative call costs. Furthermore, I have continually sought to draw attention to the fact that the relative cost incurred by a caller cannot be affected by the connected telephone system or the provider of the number. You will be aware that the evidence of compliance offered by most 084-using GPs is based on this false assumption.

Links to the published tariffs of widely used telephone call services are published via the link - http://tiny.cc/GP084Costs, where I also summarise the relevant relative call costs in a table.

In summary

I must urge you to turn your attentions away from a pointless search for evidence of "overcharging" by NHS contractors and to look at the evidence of breaches of the actual contractual requirements which I present to you. Arguments about the permitted levels of charging under your proposed "patient-focussed" alternative health service have nothing to do with this issue, until (if ever) it has replaced the NHS in England.

For the time being, your duty is to administer those aspects of our National Health Service for which you are responsible, on behalf of the people of the UK. The same applies to your opposite numbers in the other three responsible governments and all others holding relevant managerial responsibility. Until the statutes which confer this responsibility are superseded, those duties remain in place.

I would be grateful if you would confirm receipt of my evidence, in response to your specific request, and advise how it will be used in discharging your duties. If there is any aspect of this on which you or your officials are unclear, please contact me and I will be delighted to help you further.

I look forward to hearing from you.