I have been provided with a copy of a draft document issued by NEG (part of Daisy Group) in May 2011, intended as a model for how a NHS GP user of its Surgery Line product, using a 0844 telephone number, should respond to an enquiry from Which?.
I cannot be sure that this document has been used for the suggested purpose, nor have I seen the text of the circular from Which? which it is intended to address. I received it as a result of it having been sent to a PCT to provide evidence of compliance with contractual conditions.
If Which? has received messages reflecting these comments from NEG, then I very disappointed that they have not been published and subjected to criticism from Which?, similar to that offered below. The standing and natural authority held by Which? would enable its criticism to be briefer and more effective, not to mention more widely read, than my remarks which follow.
I do however recognise that it is a more serious matter to successfully mislead a PCT, than to attempt to mislead Which?.
Some of the comments made by NEG are erroneous or seriously misleading. A view about how compliance with the ban on use of expensive telephone numbers should be assessed is offered, however this is based on a false premise and cannot be of any relevance to the particular requirements. This view effectively proposes that no judgement can be made.
I publish the copy document at http://tinyurl.com/dhtiny/doc?NEG_to_Which.pdf. I have highlighted the specific points which I quote below, and on which I comment.
I also quote from the relevant terms of the contract, which are published at http://tinyurl.com/dhtiny/doc?GMS29B.pdf.
| • | "“NHS 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.”" | ||
Much of the document argues the benefits of "Enhanced Telephony". This was discussed at length in the course of the public consultation. The final determination, which led to the contract revisions imposing the requirement, fully supported use of any type of technology, "providing that patients are not charged more than the equivalent cost of calling a geographical number".
The requirement makes no reference to any specific number range. It recognises that Ofcom may introduce regulatory changes and new ranges at any time. At the time when the requirement was introduced, Ofcom was specifically considering changes to the regulations covering 0845 number. Many expected that this would include adding 0845 to a list of other ranges for which call charges may not be greater than those for calling geographic numbers. Ofcom's considerations have now been widened, however no change has yet been made and the specific option for 0845 referred to is most recently stated as having been removed from active consideration.
Under actual current circumstances, there is NO 084 number for which it can be said that "patients are not charged more …". See the widely used tariffs, which are summarised and linked to on this page.
| • | "084 numbers are not always more expensive to call than a geographic number" | ||
This statement, as it is phrased, is accurate. It is however used as the basis for a false conclusion regarding compliance.
It is equally true to say that "there is no 084 number that is not sometimes more expensive to call than a geographic number. It is the variation between tariffs which makes the statement true, not some characteristic of particular 084 numbers. To achieve compliance with the specific regulations, one would have to be able to reverse the sequence of the words "not" and "always" to give "… always not more expensive …", but that would make the statement false.
As shown on this page, there are some circumstances under which a provider of telephone service to the caller sets their call charges for geographic calls, for some callers at some times, to be greater than (or equal to) the call charges for some 084 numbers. There is however no 084 number which is not more expensive for a significant proportion (in many cases probably a sizeable majority) of callers.
In the context of the terms of the relevant contractual conditions imposed on NHS GPs, the fact that there may be some callers who do not pay more to call a particular 084 number is not the point at issue. The requirement is: "to ensure that, having regard to the arrangement as a whole, persons will not pay any more to make relevant calls to the practice than they would to make equivalent calls to a geographical number".
If "having regard to the arrangement as a whole", a user of a 084 number cannot claim compliance, unless all "persons" are subject to the exceptional circumstances identified. (Further points address this in more detail.)
| • | "The telephony provider therefore has the ability, if they so choose, to set the rate at which a call to their number is charged at the geographic rate or below. … | ||
| "This is precisely what our telephony supplier, Network Europe Group, has done and, in doing so, has ensured that we have complied with DH regulations and the relevant BMA guidance to its members." | |||
The telephony provider which has the stated ability is the provider of telephone service to the caller.
This statement would only be of any relevance if NEG were the provider of telephone service to all those who call the practice. NEG is not a provider of residential telephone service to anyone, NHS services are only available to individuals not corporate bodies, so NEG is not the provider to any NHS patient.
What NEG has done in setting its charges is therefore of no significance whatsoever to the "DH regulations".
| • | "… the long-standing industry practice in comparing the costs of calling numbers, adopted by all organisations and public bodies … is to compare against the OFCOM-regulated BT call rate. | ||
| "The reason for this is that all other rates are not regulated by OFCOM and therefore can be changed by the provider at literally a day's notice without any notification or consultation. | |||
| "Because of the volatile nature of the telephony market, this means that it is impossible for any organisation to provide a comparison against myriad providers' costs which would not run the risk of being out of date within days." | |||
The requirement which is contained in the relevant regulations requires comparison between the cost of a call to the number used by the practice and the cost of an equivalent call to a geographic number. As Ofcom does not regulate the cost of calls to geographic numbers, for BT or any other provider, one cannot therefore limit consideration to only those rates which are regulated by Ofcom.
Ofcom does currently regulate BT, but only in respect of the pence per minute element of its charges for calls to 0844/0843/087/09 (and some other non-geographic) numbers. This regulation is expressed in absolute terms, not with any reference to the rate of charge for calls to geographic numbers. These rates are fixed, in that BT alone is not permitted to add anything to the fixed amount which is paid on by every originating telephone company to the telephone company used by the person called. (The call set-up fee is a separate item. No other provider is subject to any such regulation.)
The industry therefore does indeed use BT rates when quoting the pence per minute element of call costs for these numbers in absolute terms. This is because they are both fixed and the lowest likely to be found - most businesses take a margin on a service, when not prevented from doing so! These costs may be compared, one with another, but they cannot be compared with the cost of a call to a geographic number - the ASA and the Trading Standards bodies act when such false comparisons are made. The practice of doing so may have been long-standing, but it (should have) stopped in 2006, when it ceased to be valid.
As all BT residential customers are now under the terms of Call Plans, whereby calls to geographic numbers (of up to one hour) are subject to a zero call charge, calls to 0844 numbers (which are not included in the Call Plans) will invariably be more expensive.
The exceptional and perverse case with BT arises when calls are made to geographic numbers outside the terms of the selected Call Plan, e.g. if a customer chooses a Call Plan for calling only at Weekends or Evenings and Weekends, but then makes a weekday daytime call to a geographic number. The (unregulated) penalty charge which is imposed for these "out of plan" calls is currently greater than the (regulated) charge for calls to all 084 and some Premium Rate Service 087 numbers.
If it could be shown that all callers were subject to these unregulated and frequently changing "penalty charges" from BT, this could provide a basis for a claim of compliance. NEG seeks to imply that these "penalty charges" are regulated and therefore provide the only valid basis for comparison. The basis for this is however simply untrue. Ofcom ceased regulation of BT's charges for calls to geographic numbers on 31 July 2006.
Any attempt to deal with the absolute costs for a large number of providers, for both geographic calls and calls to the number used by the practice would indeed be likely to require regular updates. (The BT "penalty charges" increase frequently - 3 times during 2011).
That is however not what is required. The requirement is for an assurance that calls to a particular number will not cost more than the cost of an equivalent call to a geographic number. If that assurance cannot be provided, then the number cannot be used. It is clearly absurd to suggest that any number may be used if there is a chance that the current relationship between the cost of calling it and that of calling a geographic number may change in the future. If unregulated charges should be disregarded, then the comparison demanded by the regulations on GPs cannot be made with confidence, so no non-geographic number may be used.
The obvious case which is not referred to is 03 numbers (more on this below). Ofcom regulates the cost of calls to 03 numbers, for all providers, to be no greater than the cost of an equivalent call to a geographic number. If seeking an assurance regarding numbers for which the call cost is regulated in respect of that of an equivalent call to a geographic number, numbers from the 03 range fit the requirement perfectly. "Revenue sharing" is however prohibited on 03 numbers, denying the opportunity for the costs of the telephone system to be subsidised by callers, thereby causing the user to both see and pay its full cost.
| • | "You asked why your surgery currently uses an 0844 number for patients to call? The answer is very simple. | ||
| "We do so because it enables us to provide a much better service to our patients, to increase access to the surgery and to offer a better quality patient experience." | |||
All non-geographic numbers offer additional facilities. These are used by the Surgery Line system to provide the benefits stated. The same benefits would be provided if a 080, 087, 070, 09 OR 03 number were used.
Where the features of non-geographic numbers may be required by a system (such as Surgery Line) in order to offer particular benefits, then 03 numbers provide the obvious means for a NHS service provider to take advantage of them. This possibility is specifically covered by the terms of the regulations which allow use of non-geographic numbers, "providing that patients are not charged more than the equivalent cost of calling a geographical number". That stipulation provides a precise definition of the call charge regulations covering 03 numbers. Indeed, the 03 range is the only range of non-geographic numbers, currently in use and as currently regulated, which meets this stipulation.
| • | "You asked if our continued usage of an 0844 number is due to contractual obligation, and if there are there plans for a review when the contract ends. | ||
| "I can assure you that we constantly review out arrangements to ensure patients get the best possible service, in line with DH and BMA guidance." | |||
Regardless of any DH and BMA guidance, the practice is under a contractual obligation to "take all reasonable steps, including in particular considering [… varying the terms of the contract or arrangement …], to ensure that, 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".
As NEG offers migration to the equivalent 034 number for the 084 number in use (see Surgery Line: Number Ranges) the practice was required to take this step "before 1st April 2011", unless it could show that the terms offered by NEG were not "reasonable".
Conclusion
NEG is free to argue the merits of its system. During the consultation period, NEG was free to argue, as it did in common with the BMA, that NHS GPs should be allowed to use expensive telephone numbers if they are providing a better service to patients. Like any individual or corporate citizen, NEG is free to argue that "co-payment" should be a feature of our publicly funded healthcare system. ("Co-payment" is explicitly prohibited, and cannot be permitted, within the NHS, as currently constituted.)
The fact is that the requirements imposed DID NOT permit use of expensive numbers. The representations in respect of allowing the existing situation to continue, from the BMA and from NEG, were not carried forward, although they were "accepted" as being valid arguments. The regulations do not specify which particular numbers are banned, so as to make them sustainable through forthcoming changes.
Daisy Group should now accept that whilst the NHS remains in place, patients cannot be used as a source of finance for its system as they access NHS services. It may propose all manner of odd ways of interpreting the regulations; however PCTs are under a statutory duty to have regard to the NHS Constitution in performing their functions. This duty demands that all patients must be considered when "having regard to the arrangement as a whole" and their right to access NHS services without incurring a charge to the benefit of the provider (albeit indirect) must be enforced.
Prohibition of use of 084 numbers is both a natural informed interpretation of the regulations and the only interpretation that is compatible with the statutory duty to have regard to the NHS Constitution - which also applies to NHS GPs.
Continued use of a 0844 number, by a Surgery Line user, could only be permitted (on a technicality) if there were proof that the terms for migration to 034, as offered by Daisy Group, are not "reasonable". The BMA claims that this is the case and Daisy Group claims that its customers are compliant. Neither has offered evidence to show that the terms which Daisy Group imposes for migration to 034 are unreasonable.
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