BMA Official Guidance: Income Declaration (published 10/11/21)
The BMA has just released its official guidance on income declaration. Please see below:
Our guidance on income declaration is available here but there have been several questions raised for clarification. We will be updating our web-guidance shortly, but for expediency below are the answers to some that have already been received. I hope this is useful. If there are further questions on this please do let us know and we will review and aim to provide answers ASAP.
Which regulations include the requirement to self-declare if above £150k?
GMS, PMS and AMPS contract regulations/agreement regulations all include this requirement.
Does my practice have to comply with this new regulation on income declaration?
The new regulation applies to practices who have had their contracts varied to include the new rules, by the service of a 14 day contract variation notice. The legal advice we have received is that no practice has a contractual duty to comply with these new rules until it is served with a 14 day contract variation notice and the period of the notice has expired.
Therefore, you should check whether you have received a contract variation notice and the period of the notice has passed. If so, then you must comply with the new regulations.
We understand that a number of GP Practices have not received any such notice of variation.
How does this apply to locums and subcontractors, and how is it enforceable for them?
The contract regulations cannot compel someone who is not party to the core contract to declare their earnings; however, they require the practice to include terms within any sub-contract to require the subcontractor, an individual or the partners of a partnership, to declare their earnings. Where the subcontractor is a locum they would then be subject to the disclosure requirement.
If the practice includes such terms in the sub-contract, then they will not be in breach of their core contract irrespective of whether the locum/subcontractor does indeed declare their earnings. If a practice does not include such terms in any agreement, then they will be in breach of their core contract.
If a locum/subcontractor does not declare their earnings when such terms are included within their agreement with the practice, then they would be in breach of that agreement and the practice would decide how to remedy such a breach.
Our interpretation of the regulations is that a locum employed by a subcontractor third party who is supplied to the practice, will not need to be subject to the disclosure obligation. This aligns with NHSEI’s guidance which states:
“For the purposes of the general practice pay transparency, “sub-contractor” means a person to whom any rights or duties under the contract in relation to clinical matters are, or have been, sub-contracted (7). This includes an individual who is a locum practitioner and who is engaged under a contract for services by the contractor to deputise or temporarily assist in the provision of services. This does not include locums who are not in a direct contract with the contractor or subcontractor (i.e. locums engaged via a third party).”
Where do portfolio GPs fit into this?
Our guidance outlines that the following roles are within scope, if they operate in any of these roles under a GMS, PMS or APMS contract: Any single-handed contractor. Where the contractor is a partnership, each member of the partnership. Any sub-contractor (if an individual or a partnership, but not if a company). Any clinical services provider. Only clinical sub-contractors are in scope, and this includes locum GPs.
What about locums who operate through their own Ltd company?
As explained above, the contract regulations require practices to include a term in any sub-contract requiring the practitioners performing the clinical services to comply with the disclosure obligation.
The contract regulations also require practices to include a term in any sub-contract, which requires the sub-contractor to include the same term in any sub-contract they enter into with a further sub-contractor. So, where a practice sub-contracts to a private company and that company sub-contracts with a locum, the contract between the company and locum must include a term requiring the locum to comply with the disclosure obligation.
However, as set out above, it appears that locums who are employed by a limited company which is sub-contracted by a practice do not need to be subject to the disclosure obligation. As per NHSEI’s guidance “…locums who are not in a direct contract with the contractor or subcontractor (i.e. locums engaged via a third party)” are not included in the definition of sub-contractor for the purposes of the relevant regulation, and do not therefore need to be subject to the disclosure obligation. (We note however in this regard that the regulations are poorly drafted and there is some uncertainty around this issue).
Why are salaried GPs not included?
It is not clear to us why NHSEI/DHSC has not included Salaried GPs in this and they have chosen not to share their thinking on it. We understand though that NHSEI’s intentions were to bring this in for those who work on a ‘for profit’ basis and do not believe that Salaried GPs are able to accept additional earnings without additional work/responsibilities.
In addition, Salaried GPs have an existing contractual relationship with the practice as their employer and to make a requirement of salaried GPs would require a change to their employment contract. This would require all practices to negotiate this into the contract for all their Salaried GPs irrespective of whether they actually earn above the threshold or not. We do not believe there will be many purely Salaried GPs that earn above the threshold.
How will NHSEI police this, to check those who should declare are declaring?
It is unclear to us how NHSEI will police this. We are not aware of a mechanism whereby NHSEI might verify the income of those who have declared or not declared, but we cannot be sure that this is not possible.
We understand NHS Pensions and HMRC data feeds on earnings are usually anonymised before sharing with NHS Digital/NHSEI, but we cannot be sure that NHSEI cannot access identifiable data.
If a GP does not declare and is approached by the CCG or NHSEI, we would expect evidence of why they believe the GP should declare and where they have sourced the information for such evidence. If this has been sourced through illegitimate means, then this will be open to legal challenge.
Can I submit my declaration in a different way to the NHSEI guidance?
While the regulations do not outline how the declaration should be made, NHSEI has published guidance on this and created a process for it.
Regulation 94 of the GMS regulations requires the practice to “have regard to all relevant guidance issued by the Board, the Secretary of State or local authorities in respect of the exercise of their functions under the Act”. Practices would not be under a strict legal obligation to comply with NHSEI’s guidance, but they are under an obligation to ‘have regard’ to it. This means that they must have in place a management structure which ensures that proper consideration is given to guidance before any relevant decisions are taken. A practice who chose not to comply with such guidance should be in a position to demonstrate that they had regard to the guidance before deciding not to comply. A practice should also be able to demonstrate why it has deviated from the guidance, and the reason should be rational and guided by the practices broader obligations under the contract. Otherwise, the Board could argue that adequate ‘regard’ had not be given and therefore take some sort of action.
When does the disclosure need to be made?
Our interpretation of the relevant regulations (27A paragraphs 3(a) and 4) which outline the disclosure date, is that the information must be received by 23.59 on 12 November 2021.
Can we not comply with the regulations because the BMA is in dispute on this matter?
The BMA is in dispute over the income declaration regulations in the contract. However, the act of being in dispute does not mean that individuals or practices are able to not comply with their contractual requirements without consequence, nor does it permit the BMA to induce/advise individuals or practices to not comply.
To be clear – the requirement to declare income is in the regulations; being in dispute does not change this, and the BMA cannot advise practices to not comply with the requirement to declare as that would open both practices and the BMA to risk. If practices have legitimate reasons for not being able to comply with any requirements of their contract they should contact their Commissioner to discuss.
Is the BMA advising GPs not to declare their income?
The BMA is currently holding an indicative ballot to ask if practices would be prepared to not comply with the new regulation on income declaration.
Not complying, on a continuous basis, with the contractual requirement to ensure GPs earning over the earnings threshold declare their income:
Contract status: The requirement to ensure GPs earning above a certain threshold (£150k) declare their earnings was entered (imposed) into the contract regulations from October 2021 – therefore it is a requirement. If the practice refuses to deliver a service that is required within the contract/regulations, the practice will be in breach of its core contract. If GP partners, GP subcontractors or locum GPs operating under the core contract and earning above the income threshold, fail to declare their earnings, then the practice will be in breach of its core contract.
If you take this action:
- You and others in (or providing services on behalf of) your practice would not undertake the process of declaring your earnings
- You and others in (or providing services on behalf of) your practice would not be named in an NHSEI list of GPs earning above £150,000
- This would likely reduce the stress and risk of abuse from patients, if your name were to be included in the list
If you don’t take this action:
- If you or other GPs providing services for your practice had total NHS earnings of £150,000 or over in 2019/20 then you will be required to declare your earnings using the NHSEI process and your name would be included in the publicly available list.