From 1 October 2021, the GMS and PMS regulations were amended to require some GPs to self-declare their earnings.
The principles of pay transparency in general practice were agreed between NHSEI and GPC England in 2019 and published in Investment and evolution - a five-year framework for GP contract reform to implement the NHS long term plan.
However, the negotiation included the agreement that GPs would not be singled out. There are no similar proposals for other clinicians in the NHS, or anywhere else in the UK.
As of 18 November 2021, the Department of Health has delayed the implementation of the requirements for GPs to declare earnings over £150,000. Whilst the plans remain in place, the GPCE position as outlined below remains.
This guidance remains correct on the proposals as they currently are, and will be amended should any changes be made.
GPCE (BMA GP committee England) has made our significant concerns about the change clear.
It provides no benefit to GPs or their patients, but will potentially increase acts of aggression and abuse toward GPs and practices. It will be damaging to morale and wholly reduce the ability to recruit and retain GPs.
GPCE has already received reports of GPs reducing their hours to remain under the threshold.
As GPCE did not agree to this amendment, we consider it to have been imposed on the profession and in breach of the original agreement.
The GMS, AMPS and PMS regulations contractually oblige the below individuals to self-declare their NHS earnings, if above the NHS earnings threshold (£150,000).
This is all NHS earnings and not limited to income related to the GMS, AMPS or PMS contract and services.
GPs within scope of the amended regulations
- 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.
The regulations state a contractor must include a requirement to disclose NHS earnings in any contract for clinical services it enters into. The same requirement is imposed on sub-contractors by the regulations. GP contractors will have to ensure any sub-contracts include the required clause.
GPs outside of the scope of the amended regulations
Individuals employed by the contractor or employed by a sub-contractor (including where a locum GP is engaged by a third party to provide services) are not within scope and so do not need to declare their earnings.
Therefore, salaried GPs and those who are employed by a contractor or sub-contractor, which is a company, and the individual is not named on the contract or sub-contract, will not need to declare their earnings if above the threshold.
Company directors are also not included unless they fall under the definition above.
Locums sub-contracted directly by a practice
The contract regulations cannot make someone who is not party to the core contract declare their earnings.
However, they require the practice to include terms within any sub-contract to require the sub-contractor, an individual or the partners of a partnership, to declare their earnings.
A locum sub-contractor 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 whether or not the locum or sub-contractor does 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 or sub-contractor does not declare their earnings when such terms are included within their agreement with the practice, they would be in breach of that agreement and the practice would decide how to remedy such a breach.
Locums employed by a third party
Our interpretation of the regulations is that a locum employed by a sub-contractor third party who is supplied to the practice, will not 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. 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 (ie locums engaged via a third party)."
Locums set up as their own limited company
We have interpreted the guidance above to mean that locums set up as their own limited company are treated the same as locums employed by third parties. They will not be will not be subject to the disclosure obligation.
However, the regulations are poorly drafted on this matter and there is some uncertainty around this issue.
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 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 or responsibilities.
Salaried GPs have an existing contractual relationship with the practice as their employer. 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, whether they earn above the threshold or not.
We do not believe there will be many purely salaried GPs that earn above the threshold.
Do I, or my practice, have to declare earnings?
GPC has obtained legal advice regarding the reach of the clauses within the contract regulations (ie reaching beyond the GMS contract and into all NHS work).
Unfortunately, the contract may include any terms that are agreed between the two parties, therefore it is up to the contractor to accept them or not.
Not declaring earnings above the threshold would put a practice, not the individual (unless a single-handed GP) in breach of their contract. Where terms are entered into sub-contracts and other agreements, those individuals would be in breach of those contracts.
Any practice held in breach would be subject to the normal breach procedures outlined in paragraphs 70, 72 and 73 in schedule 3 in the GMS regulations.
Have you received a 14 day contract variation notice?
The new regulation applies to practices who have had their contracts varied to include the new rules, with 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.
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.
Many GP practices have not received any notice of variation.
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.
If GP partners, GP subcontractors or locum GPs operating under the core contract and earning above the income threshold, fail to declare their earnings, the practice will be in breach of its core contract. The detail of this is outlined on this page.
If you and others in (or providing services on behalf of) your practice do not declare your earnings on a continuous basis:
- 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 and others in (or providing services on behalf of) your practice do declare your earnings:
- and you or other GPs providing services for your practice had total NHS earnings of £150,000 or over in 2019/20, you would declare your earnings using the NHSEI process and your name would be included in the publicly available list.
We are in dispute over the pay declaration regulations in the contract. However, being in dispute does not mean that individuals or practices are able to not comply with their contractual requirements without consequence.
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 put both practices and the BMA at 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.
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 are not 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 a management structure in place which ensures that proper consideration is given to guidance before any decisions are taken.
A practice that chooses 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 not used the guidance. The reason should be rational and guided by the practice's broader obligations under the contract.
Otherwise, the board could argue that adequate ‘regard’ had not been given and take action.
Information to be declared
You must include your:
- job title
- NHS earnings for the year in question (see definition of earnings section)
- the organisation(s) from which the NHS earnings were drawn.
You may have earnings from more than one contract or sub-contract and will be required to list all the organisations from which you have drawn NHS earnings from for the relevant year. This is to provide transparency as to the source of NHS earnings.
NHSEI has defined a specific process for submitting the declaration of earnings. This process is not defined in the regulations.
What happens to your declaration
NHS Digital will publish the information in a national publication, listing:
- job title
- earnings (in bands of £5,000)
- the name of the organisation from which the greatest earnings were from
- the number of other organisations that they earnt from.
Through the act of self-declaration, the individual will be consenting to publication. Individuals should therefore carefully consider the implications before self-declaration.
The threshold of NHS earnings
The threshold for the declaration of NHS earnings rises in each year of the five year period of the framework agreement for GP contract reform as set out in the table below.
|Financial year||Threshold of NHS earnings|
Definition of earnings
The current definition of earnings is based on a GP’s pensionable income. That is based on a GP’s taxable NHS income, but from an accounting point of view this may be too simplistic. This is likely to lead to examples of GPs in the same practice having the same income, but only some of them needing to declare it in line with the regulations.
Linking GPs earnings to taxable and pensionable profits is complicated and the current definition of earnings will need further consideration and amendment.
GPCE does not believe this system is fit for purpose, could directly harm individuals and adversely impact patient care. Therefore, NHSEI must pause the process.
The following examples are courtesy of Ramsay Brown LLP.
- GP Dr Violet has pensionable income of £160,000 including £20,000 of notional rent.
- GP Dr Indigo is in a practice where some former partners own the surgery as well as Dr Indigo.
- They have agreed a lease between the practice and the partners, and the notional rent is paid over to their property accounts.
- Dr Indigo has £140,000 of pensionable profits and £20,000 rent.
- Both GPs have the same income.
Dr Violet’s income will need to be declared, Dr Indigo’s will not.
- GPs Drs Blue and Green have superannuable profits in their practice of £152,000.
- They both use their cars 10% for business, agreed with HMRC.
- Dr Blue buys a new BMW for £35,000 while Dr Green buys a used Tesla for £35,000.
- They have the same earnings and the same costs for their cars, but have different outcomes because of the differing tax rules and allowance for low emission vehicles.
Dr Green’s income will need to be declared, Dr Blue’s will not.
- GP Dr Yellow is a partner in a practice earning £140,000.
- The practice are members of an unincorporated PCN (ie not a company).
- The PCN has made a surplus of £100,000 of which the partners’ share is £11,000 - but this has not and will not be paid to him.
- Dr Orange is a partner in a practice earning £140,000.
- The practice are members of an incorporated PCN (a limited company) who has a surplus of £100,000.
- There is no intention to pay this out to the partners.
Dr Yellow will have £151,000 of pensionable income and the income will need to be declared, Dr Orange’s will not.
- Dr Red has pensionable income of £140,000.
- On his weekends, Dr Red works as a locum for the local federation, earning £20,000 which cannot be pensioned as the federation's status with the pensions agency is that of an independent provider.
- Dr Beige has the same income.
- Dr Beige also works on the weekend for the local federation as a locum which is pensionable as the federation has classic status with the pensions agency.
Due to the differing methods the federations’ pension status has with the pensions agency, despite the same earnings, Dr Beige’s income will be declared, Dr Red’s will not.
- GPs Drs Brown and White have been in partnership together many years, earning £140,000 (around £17,500 per session).
- Halfway through the year Dr White died suddenly.
- Dr Brown employed a salaried GP to cover the sessions and worked evenings and weekends to keep the practice going.
- As a result of the differential in earnings between the former partner and salaried GP and the additional workload taken on to manage the practice, he earned in excess of £150,000.
Dr Brown’s income will be declared with no recognition of the additional time and responsibility taken on to keep the practice going.
- GPs Drs Magnolia and Purple are in partnership with superannuable profits of £290,000.
- Dr Magnolia works eight clinical sessions, and also earns £9,000 from a training grant for looking after GP registrars.
- Dr Purple also works eight sessions and in addition to the profit share, teaches medical students and earns £9,000 received from the university.
- Since the income from medical students is non-superannuable, Dr Magnolia will have £154,000 of pensionable income.
- Dr Purple will have £145,000 of pensionable income.
Despite the same income, Dr Magnolia’s income will be declared, Dr Purple’s will not.
How income will be verified
It is unclear to us how NHSEI will police this. We are not aware of a way that 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 on earnings are usually anonymised before sharing with NHSD/NHSEI, but we cannot be sure that they 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 got that information. If this has been sourced through illegitimate means, it will be open to legal challenge.