MD2787 NHS patient reimbursement arrangement - ULEZ

The Ultra Low Emission Zone (ULEZ) scheme

1.1. The Ultra Low Emission Zone (ULEZ) operates to encourage the most polluting vehicles driving in London to become cleaner and came into operation on 8 April 2019. The ULEZ covers the same area of central London as the Congestion Charge Zone. It is in operation 24 hours a day, every day of the year except Christmas Day. It affects all vehicles, unless subject to a discount or exemption, and sets minimum emissions standards for their use, with charges payable for vehicles not meeting these standards. In January 2020, after the first ten months of operation, compliance levels were 79 per cent for all vehicles and 82 per cent for cars .



1.2. In June 2018, the Mayor confirmed that the ULEZ would be expanded up to, but not including, the North and South Circular roads from 25 October 2021. It is forecast that by the end of the first year of operation of the expanded ULEZ compliance will be 93 per cent for cars and 72 per cent for vans (based on vehicle kilometres travelled) .

1.3. Macmillan Cancer Centre at University College Hospital raised concerns ahead of the central London ULEZ launch that the scheme could prevent some hospital patients who are medically unable, or advised by clinicians not to, travel by public transport from accessing appointments or treatment. TfL recognised there was a need to make a change to the scheme and introduced a NHS patient reimbursement arrangement, mirroring the existing Congestion Charge NHS patient reimbursement arrangement. The arrangement was introduced on an informal basis because there was not time to formalise the change by means of a variation order ahead of the introduction of the ULEZ.

1.4. At present, eligible patients being treated at seven hospital sites in the ULEZ are being reimbursed for their journeys to hospital. These seven hospital sites represent all of the major hospital sites in the ULEZ. When the ULEZ expands in October 2021, eligible patients travelling within the expanded zone to reach hospital, even if this hospital is located outside of the zone, will also be eligible for reimbursement. Eligible patients can also be reimbursed for travel to COVID-19 vaccination centres.

1.5. To be eligible for reimbursement the patient must be being treated, or be having treatment funded, by the NHS. They must have a compromised immune system, or require regular therapy or assessment, or recurrent surgical intervention and they must be clinically assessed as too ill, weak or disabled to travel to an appointment on public transport. In addition, as part of the temporary changes to the Congestion Charge introduced in June 2020, patients who are clinically assessed as being at high or moderate risk from COVID-19 are also eligible. The reimbursement applies to the person who paid the ULEZ charge for the vehicle that transported the patient to the hospital.

1.6. The NHS trust that is treating the patient is responsible for both assessing the eligibility of the patient and administering their reimbursement claim. As such, a patient’s ability to claim reimbursement is contingent on the NHS trust that is treating them administering their claim.

1.7. It is necessary to make changes to the Scheme Order governing the ULEZ so that the current arrangement, being operated informally, can operate on a permanent formal basis. As a result, TfL has made an “Exceptional Variation Order” (EVO) on 2 March 2021 to make the necessary change . This is now presented to the Mayor to decide whether to confirm the order with or without modifications.

2.1. The primary objective of the ULEZ is to improve London’s air quality. London is currently in breach of EU limit values for nitrogen dioxide (NO2). The ULEZ, and its planned expansion in October 2021, are key measures included in the Government’s Air Quality Plan (2017) for tacking roadside emissions of NO2.

2.2. The only change contained in the EVO is the introduction of an NHS patient reimbursement arrangement. The objective of the reimbursement arrangement is to ensure that the ULEZ does not prevent NHS patients who are medically unable to, or advised by clinicians not to, travel by public transport from accessing appointments or treatment.

2.3. The likely scale of claims that will be received through the reimbursement arrangement when the ULEZ expands is unknown and difficult to predict. If this Mayoral Decision is signed, TfL will engage with NHS trusts that run hospitals in London as soon as possible to discuss the reimbursement arrangement with them. This will give a better idea of the likely numbers ahead of the ULEZ expansion, although it may still be difficult for trusts to estimate how many of their patients will be eligible.

2.4. In order to get an approximation, we can look at the volume of claims for the existing informal arrangement in the central London ULEZ, and extrapolate. In 2020, there were 1,179 claims made by patients visiting seven hospitals in the zone. These hospitals are all major treatment centres.

2.5. When the ULEZ expands in October 2021, there will be a much larger volume of claims because there are 7.5 times as many hospitals in London as a whole than there are just in the central London ULEZ . If all of the hospital sites in Greater London made the same volume of claims as the existing sites that are reimbursing patients then there could be c14,000 claims a year across the whole of London (including the central London ULEZ).

2.6. It should be noted that, the hospital sites in Greater London are a combination of major treatment centres, specialist hospitals, smaller community hospitals and small mental health units. As such, the volume of claims received from each hospital site is likely to vary significantly in scale and be less at many of the sites than the volume received from the existing major treatment centres in the central London ULEZ. In addition, the reimbursement arrangement is most likely to be used by patients visiting hospitals or vaccination centres within or near to the expanded area (including the existing hospitals in central London), rather than hospitals in outer London and beyond.

2.7. However, the overall volume of claims from patients travelling in the expanded ULEZ area is likely to be greater than for the central London ULEZ because residents of the central London ULEZ are currently subject to a grace period where no ULEZ charges have to be paid . This grace period ends on the 25 October 2021 when the ULEZ expands. As such, from the 25 October 2021, all residents of all parts of the ULEZ will need to pay the daily charge if travelling in the zone in a non-compliant vehicle.

2.8. The overall scale of the reimbursement arrangement is reduced by the fact that the majority of vehicles are already compliant with the ULEZ standards (79 per cent of cars in the current ULEZ and around 93 per cent in the expanded area after the first year – see paragraphs 1.1 and 1.2) and eligibility for reimbursement is limited only to certain patients who largely suffer from severe and chronic medical conditions. In addition, the scale of the reimbursement arrangement will decline over time as vehicle compliance increases.

2.9. TfL have reviewed the original central London ULEZ Integrated Impact Assessment (IIA) and the IIA for the expanded ULEZ and determined that there would be no environmental impact from introducing the arrangement and, as such, no negative impact on the health benefits of the ULEZ and its expansion.

2.10. The overall environmental benefits of the ULEZ are expected to remain unchanged because the scale of the NHS patient reimbursement scheme is very small. The estimate of c14,000 claims a year, or 38 claims a day, would have no impact on the localised air quality benefits of the ULEZ. This is because the reduction in air pollution as a result of the ULEZ, and the Mayor’s other air quality measures, will significantly outweigh any minor increase in air pollution caused by a small number of additional non-compliant vehicles travelling to hospitals or COVID-19 vaccine centres spread across the day and week.

3.1. Under section 149 of the Equality Act 2010 (‘the Equality Act’), as public authorities, the Mayor and TfL must have due regard to the need to eliminate unlawful discrimination, harassment and victimisation, and to advance equality of opportunity and foster good relations between people who share a protected characteristic and those who do not when exercising their functions. This is known as the Public Sector Equality Duty (“PSED”). Protected characteristics under the Equality Act are age, disability, gender re-assignment, pregnancy and maternity, race, religion or belief, sex, sexual orientation, and marriage or civil partnership status (the duty in respect of this last characteristic is to eliminate unlawful discrimination only). In line with best practice, the impact on groups who also have the potential to be socially excluded, in this case, people on low incomes or from deprived communities, has also been considered notwithstanding that these specific attributes are not protected under the Equality Act but may be common to people with protected characteristics.

3.2. The PSED applies to the Mayor’s decision about whether or not to confirm the EVO, and whether modifications are appropriate.

3.3. TfL has reviewed the original ULEZ IIA and the IIA for the expanded ULEZ (referred to in paragraphs 2.9, 2.10, 3.4 and 3.5) that were both done ahead of the Mayor’s decision to confirm these schemes. The purpose of the review was to identify whether any of the likely significant impacts identified then, including impacts on equalities, were likely to change as a result of the introducing the reimbursement arrangement. The review’s high-level findings – set out in paragraphs 2.9, 2.10, 3.4 and 3.5 – are relevant to the decision the Mayor is asked to take by this form.

3.4. The review concluded that, due to the likely very small scale of the arrangement, there were no expected material changes to the impact of the schemes on air pollution, and on the air pollution-related health impacts of the schemes as a result of introducing the arrangement. Despite no changes to the original assessments, the arrangement is still expected to have a positive impact on NHS patients many of who will have age and disability protected characteristics.

3.5. The IIAs for the ULEZ and expanded ULEZ noted potential adverse impacts on pregnant women and mothers needing to access pre and/or post-natal care appointments, but also identified the disproportionately positive impacts on them from the improved air quality. Pregnant women are eligible for reimbursement as they are deemed by the NHS as at ‘moderate’ risk from COVID-19. Women accessing post-natal care may be eligible if they meet the other elements of the eligibility criteria. The IIAs did not identify any overall adverse impact of the schemes on other patients accessing hospital appointments. The central London ULEZ IIA stated that it may be more difficult for disabled people to find alternative modes of accessible travel in central London but did not consider there was a disproportionate impact of the scheme on disabled drivers overall. The current informal reimbursement arrangement in the central London ULEZ will be a mitigation for some disabled people (who meet the eligibility criteria) accessing hospitals or COVID-19 vaccination centres. In addition, disabled people do have the option to avoid the daily charge by upgrading to a compliant vehicle. There is financial support for them to do this through the ULEZ car and motorcycle scrappage scheme, which has been available since October 2019 for low-income and disabled Londoners. Both the central London ULEZ IIA and expanded ULEZ IIA identified a disproportionate impact on those who own vehicles with a ‘disabled’ tax class or wheelchair accessible vehicles, or those who rely on wheelchair accessible PHVs. The impact of the ULEZ on these two particular groups is already mitigated by grace periods for those with a ‘disabled’ tax class vehicle and TfL licensed wheelchair accessible PHVs until October 2025. However, the reimbursement arrangement will provide an additional mitigation for these groups beyond October 2025 when the grace periods end.

3.6. Officers advise that the same matters are relevant to the Mayor’s own consideration of the PSED.

Consultation and engagement

4.1. Proposed permanent changes to road user charging schemes (including the ULEZ) are normally subject to stakeholder and public consultation although there is no express statutory requirement for the Mayor or TfL to undertake any consultation at all. Amendments to road user charging schemes are made in accordance with Mayoral Guidance issued by the (former) Mayor in February 2007 under paragraph 34 of Schedule 23 to the GLA Act and which remains in place today . TfL is required to have regard to the Guidance when exercising its road user charging functions.

4.2. The 2007 Mayoral Guidance contemplates several different scenarios in which a road user charging scheme might be amended and sets out the Mayor’s expectations as to whether, amongst other things, TfL should consult on proposed changes, the length of any consultation period and publicity requirements. The Guidance recognises that, in certain circumstances, exceptional variations to an existing scheme may be required. It provides that these exceptional changes may be made without consultation when they are necessary for operational reasons including where any consultation would cause a delay which would have a detrimental effect on or delay benefits to groups or individuals.

4.3. The introduction of an NHS patient reimbursement arrangement would normally fall within the category of a “major variation” under the Mayoral Guidance. TfL have not carried out a stakeholder or public consultation on the decision to introduce the reimbursement arrangement. This is because a consultation would cause a delay which would have a detrimental effect on, or delay benefits to, the individuals benefiting from the arrangement. The reimbursement arrangement is already being offered in the ULEZ on an informal basis and TfL are now seeking to formalise this. It addresses a specific public health concern and no objections have been received to date to the offering of the reimbursement arrangement or the eligibility criteria.

4.4. In order for the reimbursement arrangement to be in place at additional hospitals across London when the ULEZ expands in October 2021 it is necessary to begin engagement as soon as possible with the large number of NHS trusts that operate hospitals in London . This is so that TfL can explain how the reimbursement arrangement works, get their agreement to reimburse patients and set them up with TfL reimbursement accounts. If we were to consult on the reimbursement arrangement, in view of the time it takes to prepare for consultation, and extra time that would need to be added to take account of the London elections on 6 May 2021, there would be insufficient time to have the arrangement in place for when the ULEZ expands. This could adversely impact patients who need to travel in the expanded zone to access hospital appointments or COVID-19 vaccination centres .

4.5. In addition, it is recommended that the ULEZ reimbursement arrangement replicates the Congestion Charge NHS patient reimbursement both in terms of how it is administered and who is eligible. This is because the Congestion Charge reimbursement arrangement, and informal central London ULEZ arrangement that matches it, has already proven to be an effective mitigation to the impact of a road user charging scheme on patient hospital access. If the ULEZ reimbursement arrangement differed to the Congestion Charge arrangement this would be confusing for patients affected by both schemes and the NHS trusts administering the arrangements.

4.6. Officers, therefore, advise it is not beneficial or considered practicable to conduct a public and stakeholder consultation on the EVO and the change it contains (set out at paragraphs 1.3 to 1.6 above).

Key risks and issues

4.7. The key risks are that if the EVO is not confirmed then:

• There will be no formal reimbursement arrangement in the ULEZ or expanded ULEZ going forward. Some NHS patients with non-compliant vehicles may be prevented or discouraged from accessing NHS hospital care because of the cost of the daily charge.

4.8. GLA officers consider that given the circumstances, TfL has adopted sound project management techniques in making this proposal and that risks have been appropriately mitigated. Officers have taken the following steps to mitigate the risk:

a) the EVO was made in accordance with the guidance issued by the Mayor;

b) TfL undertook a review of the original IIA for both the ULEZ and expanded ULEZ which considered whether any of the likely significant impacts identified then were likely to change as a result of the proposal to introduce a reimbursement arrangement – these are detailed at paragraphs 2.9, 2.10, 3.4 and 3.5 above; and

c) legal advice has been provided throughout the process.

4.9. The rationale for not undertaking a consultation on the introduction of the reimbursement arrangement has been explained above. There is a risk the decision by the Mayor to confirm the proposals could be challenged in court by way of judicial review although this is not considered to be significant as the air quality impacts of the ULEZ and its expansion are not expected to change materially as a result of the proposal and the reimbursement arrangement is likely to be viewed as a benefit by the majority of the public and stakeholders.

4.10. No officer involved in the drafting or clearing of this Mayoral Decision has any interests to declare.

Links to Mayoral strategies and priorities

Mayor’s transport duty and Transport Strategy

4.11. The Mayor has a “general transport duty” to “develop and implement policies for the promotion and encouragement of safe, integrated, efficient and economic transport facilities and services to, from and within Greater London.” (section 141 of the Greater London Authority Act 1999). Transport facilities and services include “those required to meet the needs of persons living or working in, or visiting, Greater London”. The Mayor must publish a “transport strategy”, which includes the Mayor’s policies and proposals for discharging the general transport duty.

4.12. The introduction of the reimbursement arrangement is considered consistent and in conformity with the aims, policies and proposals outlined in the 2018 Mayor’s Transport Strategy (MTS).

4.13. In May 2018, the Mayor published a new London Environment Strategy (LES), following a public consultation. The LES complements the MTS and sets out his aspiration to achieve a zero carbon Capital and a zero emission transport system, including the move to more sustainable transport including ultra low and zero emission vehicles. The LES recognises the relationship between vehicles, congestion and air pollution and the need to set out a number of objectives and policies, in line with the Mayor’s duties. The Mayor must have regard to provisions of the LES as relevant to the discharge of his functions, including whether or not to confirm the EVO, with or without modification. Relevant policies include:

Policy 4.2.4 The Mayor will work with the government, the London boroughs and other partners to accelerate the achievement of legal limits in Greater London and improve air quality

4.14. The introduction of the reimbursement arrangement is not considered to undermine this policy or any others in the LES.

5.1. There are no direct financial implications for the Greater London Authority arising from this proposal.

5.2. It should be noted, however, that introducing the reimbursement arrangement will have a net adverse revenue impact upon TfL. In 2019, this revenue impact of informally applying the NHS patient reimbursement arrangement in the ULEZ was £5,963 and in 2020 it was £14,738. When the ULEZ expands, based on an estimated 14,000 claims a year, the revenue impact on TfL is estimated to be circa £175,000 a year. This will decline each year as vehicle compliance increases.

5.3. There are no expected TfL implementation costs from introducing the reimbursement arrangement as the arrangement already exists for both the Congestion Charge and, on an informal basis, the central London ULEZ. There will be a small level of additional operational resources required to manage the reimbursement arrangement on a larger scale but this can be covered by existing funding. The set date for this variation order is 2 March 2021.

6.1. This section considers legal issues which are not addressed elsewhere in the form.

The Exceptional Variation Order

6.2. TfL is the charging authority for the LEZ and ULEZ road user charging schemes (as well as the Congestion Charge). A variation order – the EVO described below – is to make a permanent change to the ULEZ-LEZ Scheme Order to introduce a new reimbursement arrangement required to do this.

6.3. The power to make changes to a road user charging scheme is exercisable in the same manner and subject to the same limitations and conditions as apply when a scheme is first established (paragraph 38 of Schedule 23 to the GLA Act 1999). Paragraph 4(3) of Schedule 23 provides that the Mayor acting on behalf of the Greater London Authority may do the following:

• consult, or require TfL to consult, other persons;

• require TfL to publish its proposals for the scheme and to consider objections to the proposals;

• hold an inquiry, or cause an inquiry to be held, for the purposes of any order containing a charging scheme;

• appoint the person or persons by whom any such inquiry is to be held;

• make modifications to any such order, whether in consequence of any objections or otherwise, before such order takes effect;

• require TfL to publish notice of the order and of its effect; and

• require TfL to place and maintain, or cause to be placed and maintained, such traffic signs in connection with that order as the Mayor may require.

6.4. A variation order is the legal instrument through which proposed changes to an existing road user charging scheme are made. By virtue of paragraphs 4(1) and 38 of Schedule 23, a charging scheme and changes to it must be included in an order. The order will only have legal effect if it is confirmed by the Mayor with or without modifications.

6.5. On 2 March 2021, TfL made the Greater London Low Emission Zone Charging (Exceptional Variation) Order 2021 (Appendix 1) to amend the Greater London Low Emission Zone Charging Order 2006 and its London Emission Zones Charging Order with the change set out in paragraphs 1.3 to 1.6 above.

6.6. The proposal that the EVO seeks to implement must be in conformity with the policies and proposals of the MTS and be considered desirable or expedient for facilitating (directly or indirectly) their achievement. The Mayor is advised that this is the case.

Consultation

6.7. As stated above, the proposed change was not subject to a consultation. While it is recognised that TfL usually consults on changes to road user charging schemes (including the ULEZ), paragraph 4(3) of Schedule 23 to the GLA Act does not create a duty on either the Mayor or TfL to do so. Further, TfL is required to exercise its road user charging functions having regard to the Mayoral Guidance issued under paragraph 34 of Schedule 23 to the GLA Act. That guidance expressly contemplates in Part 6 that exceptional variations may need to be made to a road user charging scheme in circumstances which do not permit consultation to be undertaken. This is the case even when what is proposed would otherwise amount to a major variation of a scheme. TfL has relied on this guidance to proceed with the change made by EVO in the absence of a consultation for the reasons set out in paragraphs 4.3 to 4.6 above. Part 6 of the guidance sets out certain publicity requirements and these will be complied with should the Mayor decide to confirm the EVO.

Power to hold a public inquiry

6.8. Paragraph 4(3) of Schedule 23 provides that the Mayor may ‘hold an inquiry, or cause an inquiry to be held, for the purposes of any order containing a charging scheme’. Whether an inquiry should be held to consider the implementation of the change as set out in the Exceptional Variation Order is a matter for the Mayor to decide.

6.9. For the same reasons as set out above in relation to holding a public consultation, it is not recommended that a public inquiry should be held.

7.1. If the EVO is confirmed, notice of the confirmation will be published in the London Gazette and other media in accordance with the Mayoral Guidance. The EVO, and the change it makes to the Scheme Order, will come into force the day after the Mayor confirms it.