(10 years, 8 months ago)
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Baroness Meacher
“Domestic abuse and female genital mutilation
No charge may be imposed for health services—(a) relating to injuries sustained as a result of domestic abuse as defined in Home Office Circular 003/2013 “New government domestic violence and abuse definition”, or(b) relating to injuries sustained as a result of female genital mutilation as defined in the Female Genital Mutilation Act 2003.”
Baroness Meacher (CB)
In moving Amendment 62, I shall speak also to Amendment 62A. The purpose of Amendment 62 is to ensure that treatment for any injury resulting from domestic abuse or female genital mutilation is exempted from NHS charges even if the victim does not have permanent leave to remain, or indeed if her immigration status is not clear. I should explain at the outset that these are probing amendments and I understand from the Minister that these matters will be dealt with by the Department of Health in regulations. Having said that, this amendment provides an opportunity for this House to try to influence those regulations. I think that I am right that there will be no further opportunity to do that.
Clause 34 defines for the first time the term “ordinarily resident”. If the person is not ordinarily resident they may be charged for health treatment. If they have paid the surcharge they should be covered for health services but many other people are already living in this country—I understand in the realm of about half a million—who have not paid the surcharge and are eligible for NHS charges. Further, Clause 34 brings ordinary residents into line with permanent residents. That means that instead of being here with a visa for a settled purpose such as a job, a university course or to reunite with a spouse for a minimum of one year, an immigrant will need to be here for a minimum of five years in most cases before they are fully covered for healthcare. This is why Amendment 62 is important and relevant to health charges, as I understand it.
In his letter of 12 March, the noble Lord, Lord Taylor, said that short-term visitors and those without lawful immigration status will,
“continue to be liable to pay overseas visitor charges for secondary care treatment under NHS regulations”.
This is similar to the letter from the Minister for health quality, who said that,
“illegal non-EEA migrants and short-term visitors (under 6 months) will continue to be liable to NHS treatment charges as they are now”.
I am told that this is not precisely the case, as the National AIDS Trust’s excellent briefing points out. In fact, the Government plan to introduce new charges for primary care, apart from GP and nurse consultations, and for A&E services for this group and for any migrant who cannot show that they have paid the levy. The need to assess patient entitlement in primary care or A&E would be an unhelpful distraction in an emergency situation. This might be done after someone receives treatment—but that, too, is an alarming position for someone who may have little or no money.
In his subsequent note and his latest briefing, the Minister gave assurances about a number of vulnerable groups who will not be subject to the surcharge or charges for treatment under the NHS charging regulations. There is no mention of the victims of domestic violence or FGM in relation to either. Do the Minister and his colleague, the Minister for Health, intend to exclude these two groups from the surcharge and, in the case of those already here without permanent residence, from NHS charges? If not, it is a matter of great concern that the moral and humanitarian case previously accepted concerning these groups appears to have been set aside.
As to the practical difficulties in determining who the exemptions for domestic abuse and FGM would apply to, I understand that medical checks would be needed if these groups are to be exempt from the surcharge. I appreciate that could be problematic in the circumstances, but in the case of NHS charges for failed asylum seekers, irregular or undocumented migrants, short-term visitors and others without permanent residence, does the Minister not agree that if a patient in any of these groups has been domestically abused or damaged by FGM, they should not be charged for treatment? It would be helpful to have clarification on this point on the Floor of the House, if the Minister is able to give it, albeit that such provisions would ultimately be made in Department of Health regulations.
If irregular migrants and refused asylum seekers who would not have paid the surcharge cannot access primary care services, apart from GP and nurse consultations to address comparatively minor health problems, they will eventually present elsewhere—probably at an A&E department—at much greater cost, as I referred to in relation to an earlier amendment.
A different but important point is whether the NHS will be expected to report back to the Home Office if a patient’s migration status requires them to be charged for NHS services. There is a concern about this in view of the comment of the Home Office Permanent Secretary to the Home Affairs Select Committee that the Home Office intends,
“to improve its radar screen into the NHS”.
I find that rather chilling. If it became known that a visit to the doctor could lead to a report to the Home Office, people could be deterred from seeking healthcare. Can the Minister assure the House that this will not be the case?
The Government have previously recognised the important role of the NHS in identifying victims of abuse and helping them to recognise, consider and exercise their option to escape from that abuse. Also, in the case of FGM—where we have not had a single prosecution—the NHS is seen as probably the best hope of identifying perpetrators and providing evidence to support the prosecution case. I look forward to hearing the Minister’s view on that.
On Amendment 62A, the Government have agreed that no charge will be made for health services to victims of human trafficking. I am dealing with this issue separately because, in a sense, these people are in a different situation. The aim of the amendment is to put this commitment in the Bill and to require the Government to produce a strategy and procedures to ensure that the victims of human trafficking are promptly and effectively identified for the purposes of the clause. This is a probing amendment which I hope the Minister can endorse, thus assuring the House that there will be regulations in place to achieve its aims so that victims receive the necessary medical treatment. The UK would thus satisfy our international obligations.
According to the Catholic Bishops’ Conference, the UK Human Trafficking Centre shows that more than half—54%—of trafficking victims were not recorded by the national referral mechanism in 2011. UKHTC notes that people who have been trafficked are often treated as irregular or illegal migrants. They may, of course, have been given false, stolen or genuine but fraudulently obtained identity documents. They will most likely then be treated as immigration offenders despite not acting under their own volition. This is quite understandable but it will need attention to avoid this kind of thing happening.
As the Bill is currently worded, these victims would not be exempt from the charges for health services if they are in one of these obscure groups. Also understandably, people who have been trafficked and coerced into criminal activities are often treated as offenders rather than victims. They are unlikely to benefit from exemption from health charges. A 2013 report by Anti-Slavery International highlighted a lack of awareness of trafficking indicators among authorities. If these victims are not identified, they are likely to get a criminal record, go missing, be deported and be retrafficked. They become victims a second time round.
All this will increase the fear of victims and their suspicion of the authorities. Help with later investigations is less likely to be forthcoming. At the moment, the authorities rely on those who are trafficked to disclose their status quickly or face detention—and, for obvious reasons, often that does not happen. If not identified immediately on arrival, trafficking victims are unlikely to be identified subsequently, and hence the importance of subsection (2) of the amendment. There is a need for,
“a strategy and procedures to ensure that victims of human trafficking are promptly and effectively identified”.
We are particularly concerned about trafficked children. I understand that at the moment social workers receive no mandatory training in identifying a trafficked child. We know that in the context of the draft Modern Slavery Bill there is a commitment to roll out specialist training and other measures. Can the Minister give the Committee a commitment that rigorous enforcement of health charges will not be introduced until the safeguards associated with the Modern Slavery Bill are rolled out?
Let us get things in the right order. Does the Minister agree that before the planned safeguards are introduced, they will be put before the modern slavery commissioner, who is to be appointed under the modern slavery legislation? Indeed, to clarify these matters, can he provide the Committee with information about the planned timing of the introduction of the new enforcement rules for health charges and of the implementation of proposals in relation to the Modern Slavery Bill? I beg to move.
Baroness Finlay of Llandaff (CB)
My Lords, my noble friend Lady Meacher has introduced this group of amendments with great clarity. I have added my name to Amendment 62 and I will speak to Amendment 64. Other Peers who have added their name send their apologies for not speaking at this late hour. I do not want to add much more to what has been said about domestic abuse and female genital mutilation except to say that I have a major concern as to how this will actually work in practice unless these groups are exempt.
What happens if a girl comes into the country, her status is not established, and she has infected wounds? What happens to the girl who has been mutilated and has urinary and voiding difficulties or suffers chronic pain? What happens during pregnancy, when delivery can be incredibly complicated? If it is not properly managed, a woman may literally burst because scar tissue is not elastic. We recognise FGM as an absolutely awful form of abuse and it is shameful that there have not been prosecutions already. If we put these women into the charging category, we will almost reverse the message we have sent to society about this terrible act.
The other problem arises with domestic abuse. If a woman arrives at A&E with severe facial injuries including fractures to the bones of her face or her chest wall, they may be life-threatening. If her ribs have been stoved in, it may be a life-threatening injury such as a pneumothorax and treatment will have to begin straightaway. Emergency service personnel are going to be put into a terribly difficult position. Another problem is that, in the societies from which many of these women come, sadly they are not afforded the rights they have in our society, and they are not given the respect they deserve. I am fearful that there may be a tendency to blame the woman if attempts to stay fail because she is a burden on the man, thus making it more difficult for him to stay.
Amendment 64 is about people who are released from detention. Currently, people can receive treatment while they are being held in an immigration detention centre and the course of treatment will be ongoing when they leave, but this may not be the case in the future. The consequences will be particularly acute in the area of mental health. It is well documented that the experience of an immigration detention centre is damaging to the mental health of many detainees. Without ongoing support, those mental health problems will be exacerbated rather than ameliorated at the point of release. The problem we are faced with is where to set the boundary and how it will actually be implemented.
These are probing amendments, but when regulations come before the House we will not be able to amend them. We will be faced with either accepting or rejecting them. That is why we need to tease out these issues very carefully at this stage.
Baroness Cumberlege (Con)
My Lords, I shall speak to Amendment 66A on behalf of the noble Baroness, Lady Masham of Ilton, who sadly has another commitment that she has to honour this evening. Successive Governments have very good track records in safeguarding the public’s health. When I was a Minister, I was deeply involved in the Health of the Nation strategy, which was lauded at the time by the World Health Organisation as a model for other countries to follow. Since then, through the Labour Government and now our present Government, we have concentrated on looking after the public’s health. Indeed, Ministers were saying only in November last year that nothing will be done to worsen public health. Two years ago, this Government extended free treatment regardless of immigration status to include treatment for HIV infection. As was said at the time:
“Reducing transmission will reduce the risk of new infections in the wider UK population and … reduce … NHS costs”.—[Official Report, 29/2/12; col. 1397.]
They have confirmed that treatment for communicable diseases and sexually transmitted infections will remain free to all.
These are really welcome and important commitments but we have to be very careful that this proud record is not undermined by what we are now doing. Many noble Lords, I know, have a crystal-clear understanding of the Bill, as the noble Baroness, Lady Meacher, has explained to us this evening, but I would like to clarify some issues. First, who is actually going to be affected by these charges? I look to my noble friend to provide the clarity that I seek.
Baroness Barker (LD)
My Lords, I will briefly address Amendments 66A, 66B, 66C and 66D and leave my noble friend Lady Hamwee to address Amendment 66E.
Amendment 66A stands in the name of my noble friend Lady Williams of Crosby. It is a shame that she is not here because, as Members of this House will know, among her many areas of expertise is an encyclopaedic knowledge of the United States. She and I talked a lot, particularly during the passage of the Health and Social Care Bill, about the comparisons and contrasts between our health system and that of the United States. One of the most graphic contrasts is in A&E. When Americans go to A&E they are there for a very long time because they ask every conceivable question they can and fill their pockets with everything that is going. Millions of them do not have any healthcare cover at all. By contrast, we do. Per capita we spend about a third of what they spend in the USA but study after study shows that our health outcomes are better. Our systems are better because, by and large, we get people at the right place at the right time—and most people, because they have access to a GP and a certainty that they will be treated, present themselves early.
The amendments in this group are not about trying to gain exemptions for one group of people and putting some kind of moral case that puts them in a different category from other people; they are about saying what is the most effective National Health Service for everybody—those who live here permanently and those whose leave to remain is as yet uncertain.
I do not see the purpose in making a charge for A&E. There may be some belief on the part of the Government that if they charge people for being seen in A&E it will somehow have the effect of pushing them to go to their GP. I would love to see the evidence for that; I do not think that people are either that calculating or that logical about the way in which they use the NHS, particularly A&E. I would be grateful if the Minister could set out the case on which the Government have based the proposal to charge people for turning up in A&E.
What discussions have they had with the College of Emergency Medicine about how this will work? I have recently been a member of the committee of your Lordships’ House reviewing the Mental Capacity Act. When we talked to representatives of the College of Emergency Medicine, they were in no doubt. We talked to them about advance statements and how much they found out about people’s wishes and so on, and they just said, “If somebody’s ill, you don’t do that; you just treat them”. It is naive to assume that they will change their entire practice for thousands of people who come through their doors on a weekly basis just because somebody happens to fall into a different immigration category; that is perhaps wishful thinking.
Amendment 66C poses a very simple question: are we going to charge people for diagnostic tests and, if so, on what basis will we do so? Frankly, I cannot see the incentive for somebody to go and see a GP if the consultation is free but they then have to pay for any diagnostic tests. That is what most GPs do above anything else; they run a set of diagnostic tests and they look at them. There is also a public health implication here. The issue that we have with a number of conditions is trying to persuade people to be tested so that we can then make plans for their individual health and also plot the health of the community. What exactly are the proposals on diagnostic tests?
Perhaps the most important and relevant amendment in this group is Amendment 66D. My understanding, and that of the people and organisations which have briefed us, including the National AIDS Trust, is that, should the Bill remain unamended, the Department of Health will have the power to levy charges for mental health services outside those provided by hospitals. Clearly, it will not be able to charge people who are detained under the Mental Health Act, and I doubt that if somebody was sufficiently ill to be receiving mental health treatment in a hospital they would be charged for that—I may be wrong—but community and primary care service mental health treatments could be charged for.
On that, we should follow the point made firmly by the Academy of Medical Royal Colleges in its response to the Department of Health consultation: that access to primary mental health services is a public health issue. We should not leave mentally distressed people to get to the point where they become a danger to themselves and to others. This measure would fly in the face of the intentions of the most recent Mental Health Act to go through this House, in which there was an emphasis on ensuring that people were subject to compulsory treatment in the community. I have no wish go back over some of the worst legislation that we have ever passed in your Lordships’ House, but this measure seems to undermine that considerably. I would like a full statement from the Minister on exactly what the Government’s intentions are on mental health services.
Baroness Hamwee (LD)
My Lords, I may be quite wrong in my recollection, but I remember reading somewhere that only a single consultation with a GP would not be charged for. I hope that I am wrong in thinking that, but if that is the case, I am really worried. It builds on my noble friend’s point about diagnostic testing. I have a wonderful GP, but on the, happily, rare occasions on which I see him, he usually says, “Go to have a blood test and come back”, or “Let’s see how it goes and come back”.
Amendment 66E covers ground that has already been thoroughly covered by the noble Baronesses, Lady Meacher and Lady Cumberlege, about both victims of domestic abuse and persons who are believed to be victims of trafficking. The point about identifying both those groups—not all of them, but many of them, women—is very important. Often, they may not even be suspected of falling within those groups until they see a doctor. Doctors are in the best place gently to investigate how certain conditions have come about, because the patient may not be prepared to disclose the information without being encouraged to do so, and may not have disclosed it to anyone else—possibly not even to a doctor on initial consultation. Although the intention here is good, we have to be clear about how the provision will be implemented, as well as getting assurances that what we understand to be the case will be the case.
Baroness Smith of Basildon (Lab)
My Lords, there is little I can add to the points made eloquently by noble Lords—although, in an all-female debate, perhaps I should say noble Baronesses. Some points are not dissimilar to the principles that we raised on Monday about exemptions on housing issues and the rate of pregnancy and domestic violence. Again, the debate highlights confusion and a lack of clarity. The Government have to accept some responsibility for that confusion and lack of clarity.
The case raised by the noble Baroness, Lady Meacher, and reinforced by the noble Baroness, Lady Finlay, is that victims of domestic violence and victims of female genital mutilation are not just vulnerable but are victims of crime. That is a step further than vulnerable.
I recall that when I was a PPS at the Home Office many years ago, the Government piloted working with A&E departments to identify women who presented with injuries that were likely to be the result of domestic violence, to see whether we could get those cases through the courts and protect the women from being victims again. That was a very important part of A&E working as part of the whole criminal justice system. I worry that women who should present themselves to health services to receive treatment for violent injuries and FGM—the case presented by the noble Baroness, Lady Finlay, was horrific—will be victims of trafficking. We have to imagine the terror of someone who has been trafficked to the UK, often for sex or slavery. They may not speak English; they may not be aware of their legal status; they will have little trust; they will be fearful and in poor health; and they will be worried about going to the authorities in the first place because of worry about their own status.
There needs to be careful thought about how that can be managed. The Minister and the Government have been helpful in saying that victims of human trafficking will be exempt from charges. They have been very clear on that, but much concern has been raised about how to identify those women and help them come forward. What the noble Lord said was helpful, but he needs to say more.
I return to the question of what this means and the complications that other noble Lords have raised. What is the Government’s definition of success here? If their policy is successful, health services will be able to check the eligibility of those who are entitled to free healthcare and, consequently, charge those who are not eligible. The second aim is to draw to the attention of the authorities those who present and do not have a legal right to stay in this country. The point about public health is particularly pertinent here, and I would like to know what the Government are thinking on this and how they identify the problems.
If identifying those who are not legal migrants and reporting them to the authorities means that those people are less likely to report for healthcare, what are the implications for public health if someone has an infectious disease that needs treatment or a condition where a lack of early intervention means more expensive, or even emergency, care? We heard about the case in Northern Ireland. Another case I have been aware of is that of a young woman who had asthma. Simple preventive treatment would have been cheap and easy, but the care later on that was necessary because she had not had that treatment was very dangerous to her health and expensive to the public purse.
The question of far greater cost comes back to the issue of mental health cases. I take the point made by the noble Baroness, Lady Barker, on this. If someone has mental health problems, they are likely to be a danger to themselves and to others. I am sure that it is not the Government’s intention that those people should go without healthcare, but we have to recognise that there are specific obligations in those cases. I am seeking from the Minister an explanation of what thought the Government have given to these issues prior to bringing the Bill forward, and what plans are in place to deal with these kinds of issues regarding the most vulnerable—the victims of crime, those who could be a danger to themselves or to others, and those who could present at even greater cost to the public purse if they do not get the treatment that they need? I am particularly interested in the Minister’s response on this matter.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, this has been a very reasoned debate and I am pleased that we have had a chance to return to it. It has taken us slightly further along the track than the legislation takes us, but that is a feature of where we are. We have an Immigration Bill, a Home Office measure, that is designed to provide for a surcharge, which in turn is to provide free healthcare for those covered by the surcharge, and we have the health service itself, under the Department of Health, looking at ways in which it can more effectively recover sums that are due, under current legislation, from visitors—and, for that matter, illegal migrants and the like—to see how that can fit in with all the other considerations; public health has been mentioned, as well as the vulnerability of some of the patients who present themselves who may have become victims through no fault of their own and need proper medical attention. Those two things are going on at the same time. I suspect that at bottom that is why we are finding it a bit difficult to discuss this issue.
If I may, I will turn to the Bill itself to start with, as that is the most important thing. I am aware that I speak for the Government and I cannot say, “Well, this is my dear noble friend Lord Howe’s responsibility”, so I will do my best to integrate into one proposal both the Bill and the health service reforms. I reassure noble Lords that there is nothing in the Bill that will impact on the current arrangement for migrants in any of the areas covered by these amendments that have been debated this evening. Our intention is that the payment of the surcharge, which takes place when people make an immigration application, will entitle migrants to free access to the NHS in the same way as a permanent resident. This will include treatment for injuries sustained as a result of domestic violence, which the noble Baroness, Lady Meacher, mentioned, or female genital mutilation, which was mentioned by the noble Baronesses, Lady Meacher and Lady Finlay. It will also include mental health, to reassure my noble friend Lady Barker, and maternity services, as we discussed when we were debating previous amendments. We have also committed, as the noble Baroness, Lady Smith, said, to exempting victims of human trafficking. I can say to the noble Baroness, Lady Finlay, that there is no charge for anyone in detention accessing NHS healthcare.
Secondly—this is the second element of the debate—as my noble friend Lord Howe set out in his recent letter to noble Lords, the Bill does not make any changes to the way in which short-term visitors and, for that matter, illegal migrants access medical care. Any NHS charging exemptions for health purposes for these groups are a matter for the Department of Health and, within their devolved remit, the devolved Administrations. Within the framework of government, they are not the responsibility of the Home Office.
The noble Baroness, Lady Meacher, asked me how we will ensure that NHS staff can effectively identify potential victims of trafficking. The Department of Health already identifies patients who are victims or potential victims of human trafficking in order to waive treatment charges. We will work closely with the Department of Health on this matter in order to ensure that proper guidance and training are provided to NHS staff. I am not convinced that the amendments proposed by the noble Baroness are necessary.
I was asked why the national referral mechanism was not put on a statutory footing. It was set up to ensure that victims of human trafficking are identified and given the support they need. We want to make sure that the NRM is working as effectively and supportively as possible, and healthcare is part of that mechanism. That is why the National Health Service announced a review of the NRM on 3 December. It will commence shortly, and we await it.
The Department of Health has already confirmed that it will be exempting certain treatments from charging, including GP and nurse consultations, specified infectious diseases—we have talked about HIV and tuberculosis—and sexually transmitted infections. This will ensure that everyone has unrestricted access to prompt diagnosis and intervention and that public health is safeguarded.
The Department of Health has, however, signalled an intention to introduce overseas visitor charges for some primary care services, including A&E, as part of its extensive reform of NHS charging in England. It is carrying out detailed analysis to inform decisions in this area. I am confident that cost-effectiveness—noble Lords mentioned some of the consequences of poor primary care leading to complications that can be very expensive as a consequence—public health and the moral case for protecting vulnerable groups will remain key factors in this consideration. I can reassure noble Lords that any agreed changes will be put to Parliament in the form of revised NHS charging regulations. That is not an unusual situation. We are talking about a consultation. This aspect of health service reform is not appropriate in an Immigration Bill because it is not about immigration but the practice of charging within the health service.
Without getting involved in the argument as to whether that is the right or wrong thing to be doing, as we know, we have all been fortunate to grow up in a world in which, for most of us, all healthcare—well, not all healthcare; not dental care and things like that—has been free at the point of use. That is a remarkable privilege, but it is an expense and one has to argue whether the resources are properly justified if they are extended to visitors, for example, or illegal migrants. That is not an unreasonable position to take.
Baroness Meacher
I am sorry to interrupt the Minister. He understandably said that this was a matter for the Department of Health and therefore not really appropriate for discussion here. Can he assure the Committee that we will therefore have another opportunity to influence the design of these regulations, which will indeed determine whether people suffering with FGM, domestic violence and so forth will be excluded from health charges or not? That is a matter of great concern to many of us. If we cannot discuss it here, will there be another opportunity?
Lord Taylor of Holbeach
That is why I am going to try to address some of these matters. It is right to seek to do so, allowing for the limitations of my knowledge in this area, which I hope that noble Lords will understand.
This House has a good reputation for debating these sorts of things not, if I may say so, through the statutory instrument process so much as generally. I am absolutely certain that my noble friend Lord Howe would be quite prepared to come at a suitable point during the consultation to discuss the basis of changes that would be made. I am sure that I am not losing a friend for life by committing him to do just that.
As if to show that I need to brush up a little bit, apparently I may not have said, through mis-speaking or a slip of the tongue, that the Home Secretary announced the review of the NRM. I thought that I had implied that, but if I had not, I should have done so. Let us hope that I do not fall out with another friend for not crediting the Home Secretary.
The noble Baroness, Lady Meacher, asked about training for the enforcement of new NHS rules, and also about the Modern Slavery Bill which, as noble Lords know, is in pre-legislative scrutiny. The Department of Health will publish its implementation plan on the health service rules during the course of this year. The Modern Slavery Bill will be a fourth Session measure. I must not anticipate the Queen’s Speech, but the fact that that Bill is going through pre-legislative scrutiny rather suggests that it will be in the fourth Session legislation.
The noble Baroness, Lady Finlay, asked about a victim of FGM who has infected wounds. Under the NHS charging regulations and policy, immediate necessary treatment is not held up because of charging. I think that the noble Baroness has enough experience of how the health service operates charging principles, and I do not think that that is likely to change. GP care is not charged for, as I have said. The Department of Health is reviewing provisions for vulnerable individuals under these NHS regulations.
The noble Baroness asked why we were planning to charge migrants for accident and emergency services. Surcharge payers will obviously not have to pay for A&E services. The Department of Health has indicated that there is a good case for introducing overseas visitor charges for A&E, for those short-term visitors and illegal migrants who do not pay the surcharge. It is giving this detailed consideration, but will not make any changes unless it is confident that the new systems will work well without compromising rapid access to emergency care for those in immediate or urgent need, which will never be withheld or delayed pending payment. However, as I said, that is not a matter for the Bill. It is part of the review into regulations which is going on at the moment.
My noble friend Lady Cumberlege asked whether those exempted from the charges will be exempted from NHS charges. Our policy intention is that those who are exempt from the surcharge will also be exempt from subsequent National Health Service charging for health services under NHS regulations. However, obviously they will be liable for dentistry; as I mentioned before, at the moment that is not free other than in exceptional cases.
Under the Bill it is possible for surcharge payers to be charged for certain expensive discretionary treatments —I think we have discussed that already. However, we have made it clear that we intend that no such additional charges will apply when the surcharge is introduced. The Department of Health has made it clear that it would consider those in the future only in the event of any exceptional and compelling specific justification for health purposes, and, as I have already said, any changes would need to be put before Parliament.
My noble friend welcomed the exemptions, but those refused asylum will face charges, as will most victims of trafficking who are not recognised through the national referral mechanism. I emphasise to my noble friend that refused asylum seekers will not pay a surcharge. Health charging for refused asylum seekers is a matter for the Department of Health and the devolved health administrations within its remit. We have already confirmed that trafficking victims will not have to pay the surcharge.
The NRM is the only process by which an individual can be formally identified as a victim of trafficking and matched with appropriate support. Someone who has not been identified as a victim through the NRM and who is an illegal migrant or visitor would not be covered by the exemption for NHS charging under the existing regime. However, the NHS can write off NHS debts if individuals are subsequently identified as victims of trafficking, so there is a retrospective exemption in that regard.
The Department of Health has committed to give further thought to strengthening exemptions in the current NHS charging regulations for vulnerable groups, including victims of trafficking. We want to make sure that the NRM works effectively, which is why the Home Secretary has commissioned the review.
My noble friend asked whether those who come on a visa, pay the levy—or the surcharge, as it is properly called—and are later refused an extension will still get free NHS treatment while waiting for an administrative review decision, and asked about a period for which the paid levy has expired. This is about people and their leave to remain. Those individuals will continue to receive free NHS treatment as part of the conditions of their extant leave. Where individuals had leave, alongside which they paid the surcharge when they applied for an extension and applied for an administrative review within the specified time limit for doing so, their leave will be extended on the same conditions under Section 3C of the Immigration Act 1971 until their administrative review is decided.
My noble friend asked what would happen if their review is refused and they bring a human rights appeal. Once an administrative review is refused a migrant will be liable for NHS overseas visitor charging unless they fall under one of the exemptions set out in NHS charging regulations. That will be commensurate with their immigration status.
A number of noble Lords were concerned about GP consultations being free—I think that that is widely understood—but what about treatment? We intend for surcharge payers to receive most treatment free, as would any other UK citizen or person with indefinite leave to remain. We have made that clear in all the responses that I have given. They will be charged only for services for which permanent residents are also charged. As part of its work to reform the charging regime in England, the Department of Health has signalled an intent to extend charging for short-term visitors and illegal migrants to some primary care services, excluding GP consultations. It is carrying out a detailed analysis to inform decisions in this area, and any agreed changes will be put to Parliament.
I was asked by my noble friend Lady Cumberlege to give an assurance that the Home Office would not be permitted to use access to healthcare as a means for it to identify and take action against those subject to immigration controls. Healthcare staff are not routinely required to inform the Home Office on issues to do with individuals’ immigration status, and there is no plan to change this. However, there are circumstances where it is appropriate for the NHS to pass information to the Home Office, such as for enforcing the NHS debtors rule, which is a current rule under which migrants who have run up an unpaid debt of £1,000 or more are not given permission to enter the UK while the debt remains unpaid.
Finally, I hope that I have answered the questions posed by my noble friend Lady Barker on mental health and such matters. She made a valuable contribution to the debate.
I turn to the challenges presented by the noble Baroness, Lady Smith, who asked, “What is success?” Success might be the £2 billion surcharge income for the NHS, which is a large sum of money even in a health service budget running to several hundred thousand million pounds. An additional £500 million will be recovered in treatment charges each year through better administration, plus the surcharge, and vulnerable groups will be protected and treated. Part of the consideration of the NHS review and the provisions of the Bill are to ensure that vulnerable groups are protected. There is no adverse impact on public health, and there is a fairer set of rules and arrangements, which command public support. Those are the basic challenges that face us in seeking to reform charging within the health service.
I reiterate that the introduction of the surcharge in the Bill will give those who are obliged to pay it—and they are obliged to pay it—the peace of mind that they will receive comprehensive NHS treatment when needed. But charging for short-term visitors and illegal migrants remains the responsibility of the Department of Health, and it is not dealt with in the context of this Bill.
Baroness Barker
My Lords, I thank the Minister. I know that health is not his subject, but he has given an excellent response to those of us who speak fluent NHS and know all the language. I thank him for the detail of his response, but I ask him to write to me on two points. First, on my point about charging for diagnostic tests, I understand the point about people paying the levy having to pay for the same things as people who are resident and about the exemptions for some categories of people and some conditions, such as infectious diseases. But there are some conditions—for example, diabetes—where you have to have a diagnostic test. It is important that people know that they are diabetic and that healthcare workers know that those people are diabetic, because if it goes untreated there may be further consequences.
Secondly, I seek clarification on the important matter raised by my noble friend Lady Hamwee on whether initial consultations with GPs would be free and subsequent consultations would be charged for or whether all consultations with a GP practice’s staff would be free. I do not want to detain the Committee now but if the Minister could answer those two questions in writing, it would go a considerable way towards allaying anxieties in that regard.
Lord Taylor of Holbeach
I give that commitment. I will, of course, write on that. I will also go through the debate as other questions may have not have been answered, for which I apologise. The noble Baroness, Lady Finlay, nods, so I clearly forgot to answer one of hers. However, I will go through the debate and answer all the questions as best I can. Indeed, my officials will talk to officials at the Department of Health as some of these matters are the responsibility of that department, as we have already discussed. I thank the noble Baroness, Lady Barker, for her kind words.
Baroness Meacher
My Lords, I thank the Minister very much for his thoughtful response. He was able to give us some reassurance on some points. I think that there are still a lot of gaps, but I am sure that the Minister will respond to some of the points in writing. I am very grateful to him for his kind offer in regard to his colleague, the noble Earl, Lord Howe, meeting us. I assume I am right in saying that the Minister’s office will be in touch with the office of the noble Earl, Lord Howe, to set up such a meeting because I think that it is only in that forum that we can achieve clarity about some of the most important and concerning issues to do with health charges and these vulnerable groups. As the noble Baroness, Lady Smith, said, we are talking about the victims of criminal offences.
There is much to thank the Minister for, but we will have to read the debate carefully and think about Report. With that, I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) A person is within this subsection if he or she has made a claim for asylum which has not yet been determined by the Secretary of State or has been refused and an appeal against that refusal is pending, and—
(a) “claim for asylum” has the same meaning as in section 94 of the Immigration and Asylum Act 1999 (interpretation of Part VI);(b) an appeal is pending for the purposes of this subsection when it is pending under section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeal).”
Baroness Hamwee
My Lords, in moving Amendment 66G, I will speak also to Amendments 66H, 66J, 66K and 66L. This takes us on to the provisions regarding bank accounts, which is perhaps a slightly drier issue than others we have discussed but is very important.
The Bill prohibits the opening of current accounts for disqualified persons and regulates banks’ operations in this regard. The first of my amendments in this group would provide that someone who has made a claim for asylum which has not been determined, or whose claim has been refused but an appeal is pending, would also be covered by the exclusion. The clause, as drafted, seems to exclude persons on temporary admission. It is most likely that those on temporary admission for a lengthy period are seeking asylum. I do not suggest that many of those will have a lot of free cash and want a current account, but some whose claims have been pending for a long time may be allowed to work in a shortage occupation. I imagine that this is quite rare, but some may even be able to get some money out of their country of origin. Those people ought to be able to have a bank account. How can that be permitted if the clause remains as drafted?
Amendment 66H goes to the definition of a “disqualified person”, whom we are told in Clause 35(3)(b) is,
“a person within subsection (2) for whom the Secretary of State considers that a current account should not be opened”.
I suggest that the Secretary of State should be required in the Bill to act “reasonably”. I certainly acknowledge that, as a matter of law, it may well be that she should act reasonably, but the complete discretion is concerning. We are not told of any criteria on which the decision will be based. The Explanatory Notes state:
“The Secretary of State therefore has discretion as to who should be barred … because there will be some individuals who face legitimate barriers which prevent them from leaving the UK, even though they do not have leave. The Secretary of State may enable these persons to open a current account”.
It is important to have published on the record the criteria on which the Secretary of State will base her decision and what options someone who is not able to open a bank account has to challenge her refusal.
That takes me to Amendment 66J, because I cannot see how one would challenge the decision. Provided that they do not discriminate and act lawfully, banks can refuse to open a bank account as they choose. However, if the Secretary of State can order them to refuse to open an account, I wonder whether she can require them to make a provision for a refusal to be challenged. It is a very homegrown and underdeveloped amendment, but there has to be some means of challenging because the consequences are serious. Being refused a bank account goes to one’s credit status and to an application for a mortgage at a later stage, and a number of other consequences may apply to somebody who should never have been refused in the first place. I am seriously concerned about this.
Amendment 66K is on our old friend in Clause 36(1): “The Treasury may”—or “must” it?—“make regulations to enable” the FCA to monitor and enforce compliance. Might the Government think it right to bring the scheme into force but not have these arrangements made?
Finally, Amendment 66L is on “in particular” in Clause 36(2)(b), which provides that “The regulations may” make certain provision,
“including in particular those mentioned in subsection (3), with or without modification”.
I am not clear what is added or suggested by all that and hope that the Minister can help me on it. I beg to move.
Lord Avebury (LD)
My Lords, at the moment it is entirely at the discretion of a bank or building society to agree to open a current account in the name of a person who requires leave to enter or remain but does not have it. The status checks that the bank would carry out would be to determine whether the applicant was financially reliable rather than what his immigration status was—although if he falls within Clause 35(2)(b), he is unlikely to be acceptable to the bank.
Clause 35 provides that a bank has to refuse to open an account for a person who does not have permitted leave to remain, and who is also labelled on a database operated by an unspecified anti-fraud organisation or data-matching organisation as a person whom the Secretary of State considers should not be able to open a current account. I should be grateful if the Minister would elaborate on the details of the organisation to which the banks will have to refer and how it will be established. It means that there will be some people on temporary admission whom the Secretary of State might consider eligible to open a bank account; the Explanatory Notes say this in fact means individuals facing legitimate barriers preventing them leaving the UK.
However, neither the Bill nor the Explanatory Notes gives any detail as to how the Secretary of State will make these decisions or what rights a person will have to challenge her refusal to let him open an account. Should not an asylum seeker who has exhausted his rights of appeal against refusal but is given further temporary leave to remain be allowed to open a bank account? One thinks of the Zimbabweans who were given temporary leave over many years, many of whom opened current accounts if they satisfied the bank’s conditions. Clause 35 prohibits a bank only from opening a current account in the name of a disqualified person, not from continuing to afford facilities to such a person who already has an account. Will this be made clear in the guidance that no doubt will be given to the banks?
Amendment 66G removes from the scope of the clause asylum seekers whose claim has not been finally determined. Most of these people, as my noble friend said, will be very poor and thus unlikely to need a current account, but even those supported by the National Asylum Support Service under Section 95 of the Immigration and Asylum Act, and who receive payments fortnightly, may not wish to carry around the money they receive. A couple with two children under 16 would receive £357 a fortnight, which is quite a large sum to have in one’s pocket or handbag.
Asylum seekers whose claims have been pending for more than a year and who can find employment in shortage occupations may be allowed to work, and my noble friend Lord Roberts will suggest in later amendments that the right to work should be further extended. These people will need accounts into which their wages can be paid. For that matter, could my noble friend say how many people it is estimated will be prevented from opening accounts under this clause who would otherwise have been able to be accepted by the banks under their own rules? What is the cost to the Government of setting up and managing the database, and what is the cost to the banks of making the checks required?
On a casual inquiry at my own bank, Santander, I was told that it would open an account only for a person who was resident in the UK—rather an incongruous condition to be imposed by a foreign-owned bank. It would mean, if the bank meant it literally, that it would not open an account for an EEA citizen who owned a holiday home in Cornwall or for a foreign student—but perhaps the bank makes exceptions.
An immigration lawyer who deals with a substantial number of immigration cases told me this morning that the banks invariably refuse to open current accounts for asylum seekers and appellants. So the result that the Government are aiming for in these clauses is already being achieved by market forces. However, Clause 37 defines the term “bank” to exclude credit unions, and the London Community Credit Union confirmed to me this morning that it would be prepared to open a current account for an asylum seeker, provided of course that his papers were in order. Will my noble friend confirm that asylum seekers and those who appeal against refusal of asylum will continue to be free to open current accounts at credit unions?
Baroness Smith of Basildon
My Lords, I want to make just a brief observation and ask a quick question. I am quite curious about the analysis of the costs and benefits of this proposal. The point that I want to make is similar to that made by the noble Lord, Lord Avebury. What is the extent of the problem that the Government are trying to resolve? My understanding is that many people on low or irregular incomes find it quite difficult to access bank services in the first place. Is there is a significant problem here that the Government are seeking to address?
I also notice that the clause is headed, “Prohibition on opening current accounts for disqualified persons”. It is not a prohibition on holding a bank account. What if somebody legally opens a bank account while they have leave to remain but their leave to remain is then revoked or expires? What action is the bank supposed to take in those circumstances? The very helpful guidance from the Home Office says that this is to ensure that there is a reduced risk of extending credit to individuals who are likely to be removed from the country at short notice. I should have thought that those whose leave to remain was revoked or had expired would be in that position. If the noble Earl could answer those questions, it would be helpful.
Earl Attlee (Con)
My Lords, I am grateful to my noble friend Lady Hamwee for the clear and succinct way in which she spoke to her Amendments 66G to 66L. These amendments seek to make various revisions to the bank accounts provisions. The objective of these provisions is to make it much more difficult for people to operate in the UK if they do not have the appropriate immigration status to be here.
Amendment 66G would amend Clause 35(2), which sets out the group of people who may be disqualified from opening an account. This amendment would specifically add to this group asylum applicants who have an outstanding claim. I am not convinced that that is what my noble friend intended. However, I can confirm that the policy intention is not to prevent these people opening a current account. The details of persons who are liable to removal and who have exhausted all their appeal rights will be the only ones shared with CIFAS, the specified anti-fraud organisation. By definition, this will not include persons with outstanding asylum applications and appeals.
My noble friend Lord Avebury asked about CIFAS. It is already a recognised checking agency and has been selected because we believe that it is the best organisation to perform this function. I will write to my noble friend with further details about that.
My noble friend also talked about the cost of these checks. First, I make it clear that a customer applying to open a bank account will not notice any difference, as these will just be checks that the banks do electronically with CIFAS. Because they are done electronically with an existing organisation, there will not be significant extra costs.
Amendment 66H would insert the word “reasonably” into the definition of a disqualified person. This amendment is unnecessary. As a matter of general administrative law, the Secretary of State is obliged to act reasonably, as pointed out by my noble friend. If he did not act reasonably, I am sure that he could be challenged in the courts by means of judicial review.
Amendment 66J would create a right to challenge or appeal against the refusal of a bank or building society to open a current account. The refusal of an account for a disqualified person by the bank or building society is mandatory and flows directly from an individual’s immigration status and the Secretary of State’s decision to disqualify the individual from opening an account. It remains open to individuals to apply via the immigration system to regularise their status or appeal through that route as appropriate. We do not need to create a fresh appeals mechanism here. However, I want to provide reassurance that if any details given to CIFAS are incorrect or become out of date, an individual would be able to complain directly to the Home Office. In answer to the noble Baroness, Lady Smith, the prohibition is on opening an account, not having an account. If I am incorrect on that, I will write to the noble Baroness.
If there is an error at CIFAS, the Home Office would then have a legal obligation under the Data Protection Act 1998 to correct it. The Home Office exercises considerable care over the quality of the data it shares with CIFAS and has systems in place to regularly update CIFAS records if someone’s status changes. From over 100,000 cases notified to CIFAS since 2012, I am aware of only one complaint being made to the Home Office.
Amendment 66K would require the Treasury to make regulations enabling the Financial Conduct Authority to make arrangements for monitoring and enforcing compliance. The amendment is not necessary, as I can assure the Committee that we will make such regulations.
Amendment 66L would leave out the words “in particular” from Clause 36(2)(b), which refers to provisions of the Financial Services and Markets Act 2000 to which the aforementioned regulations may apply. The words “in particular” are intended to make it clear that the list of provisions is not exhaustive, and they follow similar provisions in LASPO. The list is simply intended to give a clearer sense of the provisions that the regulations are intended to cover.
In short, my noble friend Lord Avebury expressed concerns about whether these measures were appropriate. These proposals do not breach human rights legislation; they will not impact on a person’s ability to provide themselves with the basic necessities, nor prevent them interacting with the world around them. This measure is necessary and proportionate; it supports immigration control which is a legitimate aim. My noble friend was asking broadly what would be done to ensure that the measures do not have the effect of turning the individuals concerned into vulnerable people. These individuals will still be able to conduct everyday transactions using cash, but I heard the noble Lord express concern about people’s supply of cash mounting up. In the past he has chided me about the relatively limited amounts of money supplied under Section 4 support to failed asylum seekers. The measures will make it more difficult for them to obtain loans and conduct a settled life in the UK, but it will not make it impossible for them to exist.
I hope that I have reassured the Committee that these amendments, while useful for seeking assurance, are not necessary, and I hope that my noble friend will feel free to withdraw them.
Baroness Hamwee
My Lords, to pick up on the phrase my noble friend has just used about cash mounting up, that is not the point that my noble friend Lord Avebury was making. He was talking about the cash that one might have in one’s pocket immediately upon collecting two weeks’ money. It is quite a lot when you receive it but it has to be eked out over two weeks.
Earl Attlee
My Lords, is the noble Baroness talking about support under Section 4 or Section 95? If it is under Section 95, the person will still have an outstanding claim and will therefore be able to open a bank account. If I am wrong on that, I will, of course, write.
Baroness Hamwee
That is helpful. I am grateful. On the issue of the Secretary of State acting reasonably, I was seeking the criteria. I am grateful for the detail of the Minister’s responses. Obviously I need to read them, as one always does, against my questions and against Clause 38, which gives the Treasury quite wide, but not unlimited, powers to amend what will be Sections 35 to 37. The practicalities and practice of this, as my noble friend will understand, concern us. However, I am grateful for the answers and I beg leave to withdraw the amendment.