NHS GPs remaining in breach of their contracts by using 084 telephone numbers
This simplified briefing lays out the position and the current situation for England.
Despite revisions to their contracts, many GPs continue to use 084 telephone numbers, nearly a year after they should have disappeared. The terms of the contract revisions are clear, although there has been no formal guidance issued to indicate what is necessary in order to comply. This vacuum has been filled with advice from those who were initially opposed to the intentions of the provisions. A large number of officers of the NHS have allowed themselves to be misled by this advice.
The contract changes
Following a public consultation, amendments were made to the contracts held by all NHS GPs to prohibit the use of telephone numbers which caused callers to pay more than they would to make an equivalent call to a geographic number. These applied from 1 April 2010. Those using such numbers at that time had until 1 April 2011 to ensure that this ceased, by taking the necessary reasonable steps, including varying their arrangements for provision of telephone service, where appropriate.
The relevant terms, which were applied to all contracts, can be viewed at this link.
The implications for GPs using 084 numbers
Because changes to the Ofcom regulations covering charges for calling some 084 numbers are expected, it was wise not to specify any particular number range in the contract revisions. This means that each GP has to check out the relative cost of calling its number, to determine if it may be used. An objective view shows that, barring some quite exceptional circumstances with regard to the telephone tariffs applicable to all those who call a practice, all 084 numbers are effectively banned under present conditions.
The table found at this link shows the relative costs of calls to the various types of 084 number used by GPs, as against those of calling geographic numbers. It covers sufficient widely-used telephone tariffs to illustrate the point. Because consideration has to be made "having regard to the arrangement as a whole" the fact that some may not pay more, as shown by the table, is of no relevance. All that matters is that a significant number of callers do pay more.
It is clear from the table that there is no 084 number that could be shown not to cost more, for at least a significant number of callers.
Misrepresentation of the requirements
Certain parties, who responded to the public consultation by opposing the idea of prohibiting use of numbers that may cost more, have suggested some rather particular ways of undertaking the necessary consideration to meet the requirements. These suggestions are entirely groundless, with reference to the actual requirements as drafted, and must be viewed with suspicion, given that they originate from known opponents of the intention of the provisions. I regret that many officers of the NHS have been seen to be gullible.
For example, it has been suggested that there is a provision in the requirements which excludes consideration of the cost of calling from mobile telephones, or that only one particular tariff from a single call provider should be considered. There is no such provision, indeed the reference to "the arrangement as a whole" specifically requires that the scope of the consideration must be universal, as indeed is the NHS.
It has been suggested, by the BMA GPC, that GPs do not need to "review the arrangement" themselves, but that they can simply take advice from an interested party who is known to have a particular view on how the requirements should be interpreted.
Both of these approaches have been dismissed by government ministers - see below.
The requirement to consider "reasonable steps" and take the necessary action
Some suggest that the only way in which GPs using 084 numbers could correct the situation is by totally terminating their current arrangements for their telephone service and the associated systems. This is totally untrue.
Many GPs use the revenue earned from use of 084 numbers to pay off a lease on locally installed telephone equipment. Their provision of network telephone service is linked in with the long term wider arrangement, including the lease. In such circumstances it would be foolish to consider terminating the whole arrangement, thereby having to pay off the outstanding balance of the lease and incurring penalty charges for early termination.
The obvious "reasonable step" is to migrate to the 034 equivalent of the 084 number being used. Calls to all 03 numbers are guaranteed (by regulation) to cost no more than the cost of an equivalent call to a geographic number. It is normal practice in the telecoms industry to allow customers to migrate from one type of non-geographic number to another at any point during the term of a contract. It is known that the main providers of surgery telephone systems offer this facility, specifically that of migration to 034 numbers - see my comments and a link to the relevant statement at this link.
It is known that, in many cases, it is only the foolish (and thereby unacceptable) option of total termination of the arrangement, covering both the network telephone service and other elements, that has been considered. A failure to consider the explicitly stated option of "varying the terms of the contract or arrangement" would itself represent a technical breach of the terms of the contract as drafted, however it is the failure to actually take this, or some other, step that is the breach which permits a continuing breach of the principles of the NHS.
Non-compliance and non-enforcement
In many cases, these odd ideas have been adopted as policy by the Primary Care Trusts (now arranged in 50 Clusters), who are responsible for enforcing compliance with the terms of the GP contracts. The consequence has been widespread, tolerated non-compliance. My listing of the surgeries where 084 numbers are used, derived from NHS Choices, still shows nearly 1,300 cases. A tiered summary of totals may be accessed starting from this link. The full list of (currently 1,292) cases may be viewed at this link.
When viewed alongside the table of call costs, these cases clearly provide evidence of non-compliance. I am also currently collecting evidence of non-enforcement, by a series of exchanges with Cluster Chief Executives, which began with the message quoted at this link.
The Westminster Hall debate - 24 January 2012
This matter was recently raised again in Parliament, in a Westminster Hall debate led by Bob Ainsworth MP and answered by Simon Burns MP, Minister of State (Health Services). The full text of the debate can be viewed at this link. My responses to certain comments may be seen at this link. Mr Burns claimed to be unaware that there was any problem with compliance and challenged those with evidence of non-compliance to "Send us the evidence".
He confirmed that "We do not need anecdote or the friend of a friend', who has said this or that. We need precise, concrete evidence, to be able to pursue this matter." (see Hansard). He also confirmed that "The regulations cover landlines, mobiles and payphones equally." (see Hansard). These statements help to quosh the misrepresentations of the requirements referred to above.
There is strong clear evidence to show that, in general, 084 numbers are more expensive, at least for some callers in every case, and that those tied into contracts have the opportunity to migrate to a 03 number. I believe that it is therefore for GPs who continue to use 084 numbers to prove that they are indeed an exceptional case. Because they were obliged to undertake consideration of these matters by the terms of their contract, production of evidence that this has been done, and the conclusion is properly supported, should require no additional effort.
Although Mr Burns stated clearly that he did not want to see anecdote, Which? is currently inviting members and readers to send in copies of phone bills, with a view to sending these on to Mr Burns as "evidence" - see the piece at this link. I support this exercise, but have to question its likelihood of success, as Mr Burns referred to the briefing which I had circulated and published in advance of the debate (found at this link). That briefing includes links both to the table of call costs and the lists of cases referred to above. Mr Burns stated, referring to myself and others who had quoted from my briefing, "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" (see Hansard).
If Mr Burns cannot distinguish between surgeries (some of which are "branches") and practices, thinks that GP practices determine telephone tariffs and cannot follow a simple hyperlink in a document published on the internet, then one has to wonder what evidence he would be prepared to accept.
Further information and comment
I invite those with comments to make on this issue in general, rather than on specific blog entries, to present them on this page.