Funding eligibility and pursuit of debt
14. The law says a person needs to make their complaint to us within a year of becoming aware of the problem. We cannot investigate complaints brought to us after one year unless we consider there is a good reason to do so. We discussed this with Dr R to understand why he could not complain sooner. We have also considered the time the Trust took to respond to Dr R.
15. Dr R initially raised his concerns about funding with DHSC, and on 20 March 2020 it made him aware of us and our role in complaint handling. DHSC gave Dr R the knowledge to make his complaint. It told him the Trust should establish eligibility before treatment starts.
16. Dr R said the member of staff who attended the fertility appointment to discuss the bill in January 2020 was unnecessarily aggressive. He also said a warning on the June and November invoices that his wife may be deported if the bill was not paid felt threatening. He knew about the debt in January 2020, but he had more reason to complain about how the Trust was trying to recover it after June.
17. Dr R knew he had reason to complain about the funding by March 2020 and the way the debt was pursued by June 2020. We would expect him to have brought his complaint about these aspects and for them to have been ready for us to consider before March and June 2021, respectively. He brought a suitable complaint to us in April 2022. This is outside our time limit, so we considered the reason for this delay and whether we could set our time limit aside.
18. On 4 April 2020, Dr R complained about the Trust changing its mind about his wife’s eligibility. The Trust replied on 3 June and again on 14 August after Dr R replied on 16 June. These responses came from the Chief Executive’s Office (CEO). We would not usually consider this a final response as the CEO included contact details for the Trust’s patient complaints team if Dr R wanted more information.
19. On 9 September Dr R emailed his complaint to the Patient Advice and Liaison Service (PALS) at another local hospital trust with a similar name. The next day he received a reply including the email address for the correct PALS service, but it does not appear he then complained to the correct PALS department.
20. On 10 September Dr R emailed his MP about his concerns. The next day his MP replied to ask for more information, which Dr R was able to provide by 24 September. The MP wrote to the Trust’s CEO that day.
21. Dr R contacted his MP again on 6 November to ask whether they had received a reply. His MP’s office chased a response from the Trust on 9 November. Dr R spoke to his MP on 18 November. The MP forwarded his concerns to the Trust’s CEO the next day. On 23 November Dr R emailed the Trust’s credit controller to chase up its response. They replied the Trust had only just heard from his MP and would respond soon. We note the Trust did not appear to be aware of his MP’s September correspondence.
22. Dr R also got in touch with us that month. On 30 November we wrote to him to explain that his complaint was not ready for us and how to progress it. We also explained our time limit in that letter.
23. The CEO responded to the MP on 22 December and again informed them that the Trust’s complaint department should be contacted. The MP forwarded this response to Dr R on 4 January.
24. Dr R emailed his MP about the response on 6 January 2021, and his MP passed these concerns on to the CEO the same day. The CEO responded on 30 March, again informing them to contact the Trust’s complaint department if they wanted to take Dr R’s concerns further. On 12 May Dr R contacted our advice line to find out how to escalate the complaint. We provided him with the email address for the Trust’s complaints department and suggested he ask it to provide a final response.
25. Dr R met virtually with his MP on 13 May to discuss his complaint. Dr R paid the outstanding debt on 19 May, and the Trust’s credit control department said its Overseas Visitors department would confirm payment to the Home Office. On 27 May the MP’s office emailed Dr R to explain he could escalate the complaint to us if he had not already done so, providing him with a link to our form. In the meantime the MP was trying to arrange a face-to-face meeting with the Trust.
26. We next heard from Dr R on 1 February, when he left us a voicemail. We got in touch with the Trust. It sent us copies of letters it had sent to Dr R and his MP explaining these represented its final position. Dr R told us that between May 2021 and February 2022 he was waiting for confirmation from the Trust that it would not meet in person. He also said it was not clear how to escalate a complaint with the Trust.
27. Although it is clear there were some delays on the Trust’s side, all four responses from the Trust explained how to contact the complaints team to pursue a complaint if Dr R was still not happy with the explanation from the CEO. We saw no sign Dr R followed our advice after November 2020 or May 2021, and it was a further nine months before he got back in touch with us. He could also have escalated the complaint to the complaints team as far back as June 2020, which was five months before we told him how to. While we can understand he was taking steps to pursue the complaint through his MP, we do not consider we have a strong enough reason to set the time limit aside for these aspects of his complaint.
Complaint handling
28. Dr R’s complaint that the Trust failed to properly address his point about establishing eligibility for NHS-funded treatment is more recent, and we could consider it.
29. Before we decide whether we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not seen any signs anything went wrong with how the Trust answered the complaint (as previously explained, we have not considered the complaint's substance due to our time limit).
30. When Dr R queried the funding rules with DHSC, it told him NHS trusts are under a ‘legal obligation to charge upfront those who are not eligible, for any non-urgent care, meaning such care is not to be provided until payment has been received in full’. He told us he accepts his wife was not entitled to NHS-funded fertility treatment, but he did not feel the Trust had addressed this point about its obligation in its responses to either him or his MP.
31. In its June 2020 response the Trust explained why Mrs R did not qualify for NHS-funded fertility treatment, referring to the DHSC guidance. It said the visa application form Mrs R would have completed states all visa applicants are responsible for understanding the surcharge may or may not provide entitlement to receive some types of treatment free of charge on the NHS. It also asked Dr R for the correspondence he referred to that stated she was, as it had no record of this. He provided the letter which said they ‘should be entitled’ to one cycle of treatment.
32. Our principles say organisations should investigate complaints thoroughly and fairly, giving evidence-based reasons for their decision.
33. To provide its August response, the Trust spoke with the clinic providing the fertility services about the wording of the letter. The clinic said the use of the qualifier ‘should’ was intended to show it was not certain the NHS would fund the treatment. It explained when its overseas team carried out a review, it established they would not be entitled to NHS-funded treatment, and it apologised for the confusing wording in the letter. The Trust explained again the invoice was payable and referred to the Guidance.
34. The two responses Dr R received did not address whether the Trust tried to or should have tried to establish eligibility before Mrs R’s treatment commenced.
35. Dr R’s MP received a letter from the Trust in December. The letter explained the regulations say the Trust has to make sure processes are in place to make all reasonable enquiries to determine whether a person is liable for charges. The letter does not elaborate on whether this should happen before or after treatment is provided. Dr R considers it should be before treatment commences because this is what DHSC told him.
36. In March 2021 the Trust wrote to Dr R’s MP again and addressed Dr R’s assertion that eligibility and funding were discussed in 2018, so the funding decision should have been clear before treatment started. The Trust said it had no record of checks being undertaken then. It said it only learned about Mrs R’s visa status in January 2020. The resulting review determined she was not entitled to funding.
37. We can see that by the time of the March 2021 response, the Trust had addressed this point, although Dr R did not agree with what it had said. The response Dr R received from DHSC suggested the Trust should perhaps have taken some steps in 2018 to establish entitlement. The Trust explained to Dr R how it reached its decision and what evidence it relied on (the regulations and the Trust’s records), which is in line with our principles. We cannot go further and consider what should have happened, as we have established this aspect of his complaint is outside our time limit.
38. There seems to be no doubt Dr and Mrs R were financially impacted by these events, as they paid almost £1,400 for a course of treatment Mrs R never completed. We were sorry to hear about how these events made Mrs R fearful she could lose her right to remain in the UK. Unfortunately, we cannot look at whether the Trust should have done something different. Therefore we have decided not to consider this aspect of the complaint further.