Further correpondence with Ann Keen MP concerning free accommodation
September 2008
In July 2008 Ram Moorthy wrote to Ann Keen MP enclosing a copy of our rebuttal of the Government's arguments regarding the loss of free accommodation for FHO1 - go to the rebuttal now - and requesting a meeting to discuss the matter further. Her response of 6 August 2008, in which she declines the invitation to meet the JDC, can be found below along with some further comment from the JDC:
"Dear Mr Moorthy
Thank you for your letter of 17 July 2008 regarding junior doctor accommodation.
You included a briefing note prepared by the Junior Doctors Committee (JDC). I have commented previously on many of the points raised in this note, in my correspondence with you, in particular my letter of 13 June 2008. The Department’s position is summarised in the attached annex. Given that you have published on your website a rebuttal of these points and of recommendations made by the Review Body, you may want to put this letter on your website also to ensure that enquirers who read your rebuttal also have the opportunity to read the Government’s position.
The provision of accommodation for junior doctors in Wales is a matter for the Welsh Assembly Government.
The Department of Health’s position has been made quite clear in our correspondence. The independent Review Body has also signalled that it does not intend to return to this issue – and we have accepted the outcome of their deliberations. There is nothing further I can add that has not already been covered in our correspondence and your meeting with Mario Dunn, special advisor to the Secretary of State, on 16 July 2008. I am therefore, on this occasion, declining your request for a further meeting.
ANN KEEN
Approved by the Minister’s Private Office and signed electronically in her absence.
Annex
Until August 2007, all first year junior doctors had the use of free accommodation, unlike other NHS staff who have to pay for their accommodation if they are not required to live on site.
JDC responds:
The question of whether or not other NHS staff were eligible for free accommodation is not relevant to this situation. Junior doctors used to benefit from free accommodation and no longer do so because the Government unilaterally took away that right. Other NHS staff are employed on separate terms and conditions attracting different benefits that, of course, junior doctors do not receive.
Terms and conditions provide that where it is a requirement of the job to be resident in hospital, no charge should be made for the accommodation. The Medical Act, prior to being amended in August 2007, placed a statutory requirement on all first year junior doctors to be resident in hospital. This dated from a time when all such doctors were required to live on site because of the demands of the job. This requirement, together with the provisions in the terms and conditions, meant that all first year junior doctors had to be provided with free accommodation, whether they required and used it or not.
JDC responds:
This correctly sets out the position. We would add that a further reason for the residency requirement was to allow first year junior doctors to fully immerse themselves in hospital life and more quickly grow familiar with the workings of a hospital.
Changes to working patterns and the reductions in junior doctors’ hours have brought about improvements in junior doctors working conditions. For many, there is no longer any need to be resident in hospital. (This is not the same as being on-call, for which rooms are provided). We therefore amended the Medical Act to remove the obligation on these doctors to live in.
JDC responds:
It is interesting to note that the Government admits that the purpose of amending the Medical Act was to remove the residency requirement, yet neither the consultation document introducing the amendments nor any supporting documentation concerning the proposals mention the residency requirement at all.
First year junior doctors are now treated in exactly the same way as other NHS staff. Unless there is a contractual requirement to be resident (ie because of the demands of the post), those choosing to live in hospital accommodation will be charged. We, and NHS Employers, think it entirely fair that doctors be treated equally with other staff in this respect, and the independent pay review body agreed with this.
JDC responds:
Medical staff are employed on entirely different terms and conditions of employment to other NHS employees. Therefore, NHS staff are not treated equally in numerous ways. We find it strange that the Government and NHS Employers choose to ‘standardise’ conditions in this one area, yet remain unconcerned about the many other ways in which remuneration and reward between staff groups differ.
In our view, the argument about parity with other staff groups makes little sense.
In 2004, the BMA signalled its intention to seek a pay increase for first year junior doctors if changes were made to the Medical Act. This was discussed at a meeting of the Joint Negotiating Committee (Juniors). There was no agreed Government view between the four countries of the UK at this time, but the consensus view of employers was that it should not be necessary to provide these doctors with free accommodation. The BMA’s response was that, if free accommodation was no longer provided to all first year junior doctors, they would go to the independent pay review body and request an increase in salaries. They did this in the 2007 pay review round.
JDC responds:
This paragraph only tells part of the story and in one respect is not accurate. Minutes of the JNC(J) meetings during 2003 and 2004 clearly show that employers were of the same view as the JDC: that if the Medical Act was to be amended, the junior doctors’ terms and conditions of service (TCS) would also be amended to ensure pre-registration doctors continued to be offered free accommodation. New wording for changing the TCS in this way was even drafted and discussed between the employers and the JDC. Disagreements amongst the four health departments meant that the discussions were never concluded.
The independent pay review body – the Review Body for Doctors’ and Dentists’ Remuneration (DDRB) – takes evidence from all interested parties including Government (the Department of Health and the devolved administrations), NHS Employer and the BMA. All parties covered this issue in their written and oral evidence to the DDRB.
In its thirty-seventh report, 2008, DDRB summarised the evidence it had received and made a recommendation to Government. The DDRB noted:
“The BMA said it believed it was essential for there to be a substantial uplift in basic pay levels for FHO1s to counter the additional costs of private rented accommodation…. The BMA believed that the removal of free accommodation was the removal of a benefit in kind. As with our comments on unavoidable costs above, while we acknowledge that the removal of free accommodation may in the short term increase costs for some junior doctors, the potential for future earnings has been greatly enhanced by recent contractual changes. We do not intend to revisit this issue in future years.”
DDRB also noted that NHS Employers had commented that:
- Charging for accommodation where it was not necessary to meet statutory or contractual requirements was in line with the provisions for all other NHS staff groups.
- An adjustment to FHO1 pay would affect the remainder of the pay scale where adjustment was unnecessary and unwarranted.
- To provide FHO1s with a benefit not available to other staff groups could lead to equal pay claims from other staff groups (eg nurses, a predominantly female group).
DDRB concluded:
“Free accommodation for junior doctors has not been a necessity for some time and we consider it entirely appropriate that junior doctors are treated in exactly the same way as other NHS staff.”
The Government accepted this recommendation.
The BMA has stated that it disagrees with DDRB’s conclusions and recommendation; it is open to the BMA to raise this point in their 2008 evidence to the DDRB.
JDC responds:
We believe the Review Body made the wrong decision by declining to recommend any form of compensation for the loss of free accommodation for FHO1s and, whilst we recognise that they have said they do not intend to revisit the matter in future, we will be putting forward further evidence to them in our September 2008 submission. We do not subscribe to the DDRB’s view that that because future pay as, say, a consultant is likely to be reasonable, inadequate current pay & conditions can be excused. Compensation for low junior doctor earnings was not a factor in determining the overall remuneration available in the consultant contract negotiations for example. Additionally, future pay is by no means guaranteed especially taking into account the ever-changing workforce. We are disappointed that the DDRB recognised that junior doctors would be financially worse off yet decided to do nothing to help them.
We also believe NHS Employers’ arguments to be flawed. As we have demonstrated, comparing doctors’ terms and conditions to those of staff is not a useful or logical position to adopt. If FHO1 pay was to be uplifted, it would not necessarily have an effect the rest of the pay scales for junior doctors. Finally, NHS Employers’ suggestion that equal pay claims could arise is incorrect, for a number of reasons including the obvious differences between staff in the nature of work undertaken and the fact that FHO1 pay was always kept lower than it otherwise would have been, were it not for the additional benefit of free accommodation. There should also be no cause for concern about female nurses making equal pay claims against FHO1s because these doctors are also more likely to be female (in 2007 59% of FHO1s in England were female). Their suggestion that equal pay claims are likely is tantamount to scaremongering.
In its statement, the BMA also raises the issue of student debt. In its thirty-sixth report, 2007, DDRB commented:
“Student debt might be an issue if it could be shown to be affecting levels of recruitment or retention, but we see no evidence that this is the case. On the contrary, as we have already noted, applications are running at historically high levels. We do not propose to say anything about this issue in future unless there is evidence that it is having a serious effect on the recruitment of trainee doctors and dentists.”
JDC responds:
Unfortunately, the Government has missed the point here. What the JDC was arguing was that high levels of debt are discouraging applicants from poorer backgrounds from applying to medical school. The decision to remove free accommodation will only exacerbate this situation, and the JDC argued that the Government’s policy of widening access to medical school conflicted with their position on free accommodation.
With regard to consultation, the proposal to amend the Medical Act was discussed for some time prior to being enacted, as borne out by the BMA’s statement in 2004 that they would seek an increase in pay. The consultation document in 2006 contained a copy of the draft order which included this change to the Medical Act. The consultation documents included an invitation for all interested parties to submit comments on any issues in the draft order, and all the documents were published on the Department of Health website.
JDC responds:
We agree that the proposal to amend the Act was discussed with us in 2004. However this was in the context of a negotiation about how to amend the TCS to ensure that the right to free accommodation was preserved if the Act was ever amended. These discussions were never concluded because of the Health Departments’ inability to come to an agreed position amongst themselves. The 2006 consultation document that the Government refers to did not mention once the issue of residency or accommodation. The Government implies that the issue of free accommodation was included as part of the consultation, but in the JDC’s view this is far from a fair interpretation.
In summary, there have been no changes to the terms and conditions for junior doctors. They are entitled to accommodation on the same basis as other NHS staff, and will not be charged if they are contractually required to be resident.
We will be reviewing the future structure of junior doctors’ pay as the achievement of the European Working Time Directive becomes reality. As we said in our 2007 evidence to the DDRB, we will want to take into account the direction of travel that results from both the Tooke Inquiry into Modernising Medical Careers and the Next Stage Review. It is too early to say what outcome will result from these considerations, but we note DDRB’s suggestion that it would be reasonable to expect discussions to begin by August 2009.
JDC responds:
It is obvious to junior doctors that there has been a key change in the conditions of FHO1 doctors, and the Government’s refusal to recognise this is incredibly frustrating. The JDC is angry that this change was implemented without negotiation and demands an explanation for this. In 2004 the DH was happy to negotiate on this issue with the JDC, yet in 2006 unilaterally went ahead without debate for reasons still unknown.
We welcome the news that the Government believes the juniors’ contract requires review, but discussions must begin much sooner than August 2009.