Use of Direct Engagement Schemes involving Third Parties

Dr Colin Iain Campbell MBChB FRSPH made this Rhyddid Gwybodaeth request to The Royal Orthopaedic Hospital NHS Foundation Trust

This request has been closed to new correspondence. Contact us if you think it should be reopened.

Roedd y cais yn llwyddiannus.

Dr Colin Iain Campbell MBChB FRSPH

Dear The Royal Orthopaedic Hospital NHS Foundation Trust,

I am writing to request information under the Freedom of Information Act 2000. I would be interested in any information held by your organisation regarding my request. I understand that I do not have to specify particular files or documents and it is the departments responsibility to provide the information I require. If you need further clarification please contact me via this website (or email). I would like to request the following information:

1. Does your organisation use a Direct Engagement scheme?
2. If so, who provides it? And when did you start using it?
3. Did you take external legal advice from a regulated legal professional before entering into it and, if so, from whom did you take external legal advice? (by external we mean a third party not including the scheme operator themselves).
4. What has your total locum/temporary staffing spend since you started using the scheme?
5. Please disclose the adverts, sales literature, procurement discussion, and emails between the individual that handled the procurement form the trusts end with the framework and scheme operator relating to the procurement.
6. As a result of the use of this scheme is VAT paid on the fee paid to locums you engage?
7. When conducting IR35 assessments, do you claim locums are subject to the trusts Supervision Direction & Control?
8. How much has been paid to the third party direct engagement facilitator thus far?
9. Was this payment calculated as a percentage of the savings generated by employing the services of the third party direct engagement facilitator? If so, what percentage is this?
10. How many locums have you engaged outside of IR35 in the last year? (this will be available through the trust reporting mechanisms to NHS Improvement and frameworks will also keep track of this).
11. Was the procurement of the Direct Engagement provider handled in house or by a framework, if so which framework handled this? (Eg via HTE/TWS Lot 5)
12. Please describe on-boarding arrangements in detail. Is use of the scheme optional or are you demanding that people work through the scheme.

If you are considering citing a qualified Section 43(2) exemption to avoid answering any questions please note that this is subject to a public interest test and, if necessary, a prejudice test and that you are required to disclose your reasoning with respect to decisions not to disclose. Please consider the public interest representation below in relation to fiduciary duty and openness of your books regardless of which provider you use. If you use a direct engagement scheme which purports, or purported, to provide you with a 'medical' or 'healthcare' service in order to achieve a VAT exemption, as we suspect you are likely to from sources who have previously worked with you please consider the other parts of the public interest representation.

PUBLIC INTEREST REPRESENTATION:

*You have fiduciary responsibility to account for public funds. This is a vital safeguard against bribery and corruption which, for clarity, we are not specifically alleging has occurred here. That said failure to disclose such information could give rise to questions regarding what is different at this trust from the numerous others who have disclosed this information.
* In addition to the general fiduciary argument which applies across the public sector you are also subject to the Audit Commission Act 1998 and thus you should not be concealing your books from members of the public. Section 43(2) exemptions are unlikely to apply in such contexts.

*Where the scheme in question purports to function by supply of healthcare services/medical services. However they are not registered with the CQC:

As per our understanding, it may be a criminal offence to provide Healthcare/Medical services, as they are set out under Schedule 1 of the Health and Social Care Act 2008, if not CQC regulated and, as such, the public interest in disclosure is overwhelming if the NHS trust is contracting with a medical service provider which is not CQC registered (such providers purporting to supply 'healthcare' supply you with locum health workers through an umbrella which apparently claims to 'wholly employ' thousands of health workers).

You can confirm lack of CQC registration on the CQC's website: www.cqc.org.uk - select 'all services'

Once you have verified the provider is unregulated, if you are still unsure on the public interest front could you please call the CQC and verify if they need registration due to the nature of their supply or if they do not need registration as they are supplying workers as an agency might.

You can call the CQC on this number to do so: 03000616161 (also available on their website under 'contact us')

Once this public interest basis for review has been confirmed at your side you are free to consider whether to claim an exemption but please provide justification for your answer with reference to the above public interest representations should you choose not to disclose any information under a qualified exemption (this is a requirement of claiming such an exemption under the act). We are, however, confident that you will deem it inappropriate in context to censor this information.

I would like the information to be provided by email or on this website in electronic form. If my request is denied in whole or in part I ask that you justify all deletions by reference to specific exemptions of the act. I will also expect you to release all non-exempt material. I reserve the right to appeal your decision to withhold any information or to charge excessive fees. I would be grateful if you could confirm in writing that you have received this request. I look forward to your response within 20 working days as outlined by the statute. Many thanks for your assistance with this request.

Yours faithfully,
Dr Colin Iain Campbell MBChB FRSPH

FOI (THE ROYAL ORTHOPAEDIC HOSPITAL NHS FOUNDATION TRUST), The Royal Orthopaedic Hospital NHS Foundation Trust

Hi Colin,

Thank you for your FOI request which we are now processing.

Please note that our reference number is #1332 and the response deadline is 7October 2018.

Mary
Mary Higgs
PA to Interim Director of Finance and Deputy Finance Director
and Schwartz Round Administrator
The Royal Orthopaedic Hospital NHS Foundation Trust
Bristol Road South, Northfield, Birmingham, B31 2AP

Direct line: Tel: 0121 685 4321. Internal Ext 55317

e.mail: [email address]
Web: www.roh.nhs.uk. http://www.roh.nhs.uk

dangos adrannau a ddyfynnir

FOI (THE ROYAL ORTHOPAEDIC HOSPITAL NHS FOUNDATION TRUST), The Royal Orthopaedic Hospital NHS Foundation Trust

1 Atodiad

Dear Dr Campbell

Please find attached our response to your FOI request.

Gillian

Gillian Synnott
PA to Chief Executive and Officer Manager
The Royal Orthopaedic Hospital NHS Foundation Trust
Bristol Road South, Birmingham, B31 2AP

Direct line: Tel: 0121 685 4005. Internal Ext 55305

e.mail: [email address]
Web: www.roh.nhs.uk. http://www.roh.nhs.uk

dangos adrannau a ddyfynnir

Dr Colin Iain Campbell MBChB FRSPH

Dear FOI (THE ROYAL ORTHOPAEDIC HOSPITAL NHS FOUNDATION TRUST),

Many thanks for this with respect to the 'opinion' from E&Y that you state was seen, this company is known to work with the DE provider you have named and there might arise a question of how independent such an opinion is.

Firstly, I wish you to clarify your answer to question 7 please. You have claimed that your assessment process has since been outsourced, you must however know whether you supervise direct and control these workers, can you please answer this question explicitly:

a) Do you currently claim to supervise direct and control these workers? (regardless of who does the assessment)
b) During the period from April 2017 up until April 2018 you were responsible for IR35 assessments, before you switched direct engagement provider to one that purports to 'wholly employ' locums through their umbrella. During the full year where you were responsible for the assessments did you claim to supervise direct and control the workers?

------------FURTHER FREEDOM OF INFORMATION ACT REQUEST-------------------

I would like to make a further freedom of information act 2000 request regarding this opinion from EY the trust claims to have 'seen' and supplied by the scheme provider themselves (E&Y works with the scheme provider).
1) Was this opinion by a regulated legal professional? (as opposed to an accountancy profesisonal) If so could you please provide the details of which regulated legal professional's opinion this was.
2) When was this opinion dated?
3) Where the date is not held, I am specifically keen to know was the document dated:
a) prior to April 2017? or,
b) after June 2018
4) You say you have 'seen' an opinion from EY - do you still hold a copy of this?
5) If the answer to question 4 is no, is this because the scheme provider has not given you it, or because it has been destroyed/misplaced?
6) If you hold a copy of this opinion from EY kindly disclose this - please see the public interest representations below on why Section 43 exemptions should not pass the public interest test here. If attempting to cite section 41 please disclose the relevant signed and dated non-disclosure agreement which you feel is the basis of this.

If you are considering citing a qualified Section 43(1) or 43(2) exemption to avoid answering any questions please note that this is subject to a public interest test and, if necessary, a prejudice test and that you are required to disclose your reasoning with respect to decisions not to disclose. Please consider the public interest representation below in relation to fiduciary duty and openness of your books regardless of which provider you use. If you use a direct engagement scheme which purports, or purported, to provide you with a 'medical/clinical' or 'healthcare' service in order to achieve a VAT exemption, as we suspect you are likely to from your response please consider the other parts of the public interest representation.

PUBLIC INTEREST REPRESENTATION:

*The scheme in question purports to function by supply of healthcare services/medical services. However they are not registered with the CQC:

As per our understanding, it may be a criminal offence to provide Healthcare/Medical/ services, as they are set out under Schedule 1 of the Health and Social Care Act 2008, if not CQC regulated and, as such, the public interest in disclosure is overwhelming if the NHS trust is contracting with a medical service provider which is not CQC registered (such providers purporting to supply 'healthcare' supply you with locum health workers through an umbrella which apparently claims to 'wholly employ' thousands of health workers). Indeed this is the reason you are claiming they are responsible for the IR35 assessments.

You can confirm lack of CQC registration on the CQC's website: www.cqc.org.uk - select 'all services'

Once you have verified the provider is unregulated, if you are still unsure on the public interest front could you please call the CQC and verify if they need registration due to the nature of their supply or if they do not need registration as they are supplying workers as an agency might.

You can call the CQC on this number to do so: 03000616161 (also available on their website under 'contact us')

Once this public interest basis for review has been confirmed at your side you are free to consider whether to claim an exemption but please provide full justification for your answer with reference to the above public interest representations should you choose not to disclose any information under a qualified exemption (this is a requirement of claiming such an exemption under the act). We are, however, confident that you will deem it inappropriate in context to censor this information.

I would like the information to be provided by email or on this website in electronic form. If my request is denied in whole or in part I ask that you justify all deletions by reference to specific exemptions of the act. I will also expect you to release all non-exempt material. I reserve the right to appeal your decision to withhold any information or to charge excessive fees. I would be grateful if you could confirm in writing that you have received this request. I look forward to your response within 20 working days as outlined by the statute. Many thanks for your assistance with this request.
Yours sincerely,

Dr Colin Iain Campbell MBChB FRSPH

FOI (THE ROYAL ORTHOPAEDIC HOSPITAL NHS FOUNDATION TRUST), The Royal Orthopaedic Hospital NHS Foundation Trust

1 Atodiad

Dr Campbell

Please find attached our response to the e.mail you sent to us on 8 October 2018.

Gillian

Gillian Synnott
PA to Chief Executive and Officer Manager
The Royal Orthopaedic Hospital NHS Foundation Trust
Bristol Road South, Birmingham, B31 2AP

Direct line: Tel: 0121 685 4005. Internal Ext 55305

e.mail: [email address]
Web: www.roh.nhs.uk. http://www.roh.nhs.uk

dangos adrannau a ddyfynnir