Daunting NHS letter asking for proof we are 'ordinarily resident'...

We just received a rather daunting letter in the post from the NHS asking my American wife to prove she is 'ordinarily resident' within 14 days or they may send her a bill for her use of NHS services.
Her FLR(M) BRP expired on 13th September. We applied for her FLR(M) extension visa and paid the health surcharge on 12th September, and we're about to attend the biometrics appointment in a week's time.

Irritatingly the NHS letter was dated 5th September but it literally only came through our door today (29th Sept) so way after the 14 day period. I guess Royal Mail strikes and the Queen's funeral etc made things extra slow. Their phone number quoted on the letter literally doesn't work so that's an added bonus...

That said, we're pretty sure we'll be able to convince them that my wife was a valid 'ordinary resident' prior to 5th September by sending them a scan of her BRP with expiration date after 5th Sept, proof of immigration health surcharge being paid, and apparently 3 other docs proving she's a permanent resident (feels like a spouse visa application all over again!!  ), so long as they are ok with us sending it this late (their fault not ours). Have you guys experienced anything like this before? Any advice?

There's another question we also don't really know the answer to:

My wife has used an NHS-referred physio since her BRP expired. While waiting for her next FLR(M) visa result in 'limbo' after her old BRP has expired, can she legally use the NHS for free (given that we've already paid the surcharge) or is it likely we'll get a bill for that NHS usage and any further usage before we receive an official visa result?

Thanks...

She’s fine. So long as the new application was made before her expiry date, she’s covered under 3C.

I’d just send a quick snap of the application confirmation with date and time and ask them to let you know if they need anything further.  They won’t need anything further.

 As KFD already said, you're covered under section 3C of the immigration act and her current rights (including free use of the NHS)  are protected while your visa application is in process.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1066178/3C_and_3D_leave_v11b.pdf

Being ordinarily resident isn't the same as immigration status though. A British Citizen is not ordinarily resident if they don't live here. So I would send some of the correspondence evidence that you used for your FLR application as proof that she does live here as well.

Being ordinarily resident isn't the same as immigration status though. A British Citizen is not ordinarily resident if they don't live here. So I would send some of the correspondence evidence that you used for your FLR application as proof that she does live here as well.

She will need to hold ILR to be “ordinary resident” for NHS purposes. The definition of “ordinary resident” was changed under the Immigration Act 2014, to enable the UK to bring in the Immigration Health Surcharge from 6 April 2015.

 3.10
"It is important to note that since 6 April 2015, non-EEA nationals who are subject to immigration control must have indefinite leave to remain (ILR) in the UK in order to be ordinarily resident in the UK. They must also still meet the other requirements of
the test set out at paragraph 3.12; having ILR on its own is not sufficient since that
person may no longer be, for example, residing in the UK on a properly settled basis,
and may only be visiting. From 1 January 2021, EU and EFTA nationals (except
where they have rights under the Withdrawal Agreement) will become subject to
immigration control and the requirement to have ILR will apply."

She is a visitor for NHS purposes and has paid the health surcharge with her LLR visa.

I assume you live in England? It sounds like a letter from the Overseas Visitor Manager from your local Trust (hospital)? Likely the expired visa and therefore an expired IHS, has put a marker on her record on the NHS SPINE system and the OVM is checking to see if she has to pay their Trust now, or is exempt.
For those that have paid the IHS, the Trust claims the cost of treatment from the central fund where all the IHS payments are held.
For those granted ILR and who reside in the UK (unless there is an exemption) the Trust would have to use their own budget to pay those costs.
If they are an overstayer, they pay the Trust for their own treatment.
etc

 
This is the guidance the OVMs will be using to identify who must pay their Trust at 150% of the national NHS cost. A section in the Immigration Health Surcharge starts at section 5.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1090896/overseas-NHS-visitors-charging-regulations-guidance-July-2022.pdf

She will need to hold ILR to be “ordinary resident” for NHS purposes. The definition of “ordinary resident” was changed under the Immigration Act 2014, to enable the UK to bring in the Immigration Health Surcharge from 6 April 2015.

 3.10
"It is important to note that since 6 April 2015, non-EEA nationals who are subject to immigration control must have indefinite leave to remain (ILR) in the UK in order to be ordinarily resident in the UK. They must also still meet the other requirements of
the test set out at paragraph 3.12; having ILR on its own is not sufficient since that
person may no longer be, for example, residing in the UK on a properly settled basis,
and may only be visiting. From 1 January 2021, EU and EFTA nationals (except
where they have rights under the Withdrawal Agreement) will become subject to
immigration control and the requirement to have ILR will apply."

She is a visitor for NHS purposes and has paid the health surcharge with her LLR visa.

I assume you live in England? It sounds like a letter from the Overseas Visitor Manager from your local Trust (hospital)? Likely the expired visa and therefore an expired IHS, has put a marker on her record on the NHS SPINE system and the OVM is checking to see if she has to pay their Trust now, or is exempt.
For those that have paid the IHS, the Trust claims the cost of treatment from the central fund where all the IHS payments are held.
For those granted ILR and who reside in the UK (unless there is an exemption) the Trust would have to use their own budget to pay those costs.
If they are an overstayer, they pay the Trust for their own treatment.
etc

 
This is the guidance the OVMs will be using to identify who must pay their Trust at 150% of the national NHS cost. A section in the Immigration Health Surcharge starts at section 5.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1090896/overseas-NHS-visitors-charging-regulations-guidance-July-2022.pdf

Thanks for correcting me. 

Thanks for correcting me. 

One good turn....

The link I put is for NHS England. England brought in the Charging Regulations; which seems to have come in the back of the NHS England consultation they ran about what the taxpayers will still give for free for visitors. Some of the changes have already been implemented and the rest is still being thought about.

The document is worth a read for those who plan to visit the UK. They need to pay up front in England, for any treatment that is not given for free under present rules and then they claim that money back from their insurance.

The Labour government already said they wanted to bring in a charge for a visit to a GP and with the Conservtives also mentioning it this year, that would start to bring the UK in line with other countries who have tax funded healthcare systems; which would mean visitors would have to pay too.

This is really helpful guys thank you - but we are now quite confused about how to fill out the form!

We are sending them (they are the Overseas Patients Office at our hospital) an email with the recently paid IHS reference number and have been told over the phone that we can just email over supporting documents too along with the completed form. I plan to cite Section 3C too to help with the whole 'limbo' situation.

The thing is, I don't really understand what we need to fill out in this form. Attaching a link to images of the form I took:
https://drive.google.com/drive/folders/1u_xzuX4c0FzygMy7L3hDCWJRd9ByvDrh?usp=sharing

(let me know if you can't view the photos in the link)

We understand everything about the form APART from the following (naturally, there is no guidance from the office on how to fill out the form):

1. Page 1: OFFICIAL DOCUMENTATION - I think we should provide a Current Non-EU Passport (my wife's US passport), but should we tick 'visit visa' too and attach her expired BRP?

2. Page 2: do we fill in the "IN UK ON VISA" section, or the "IN UK TO LIVE PERMANENTLY" section? We don't know which applies to us haha, it feels like both?

3. Page 2: Assuming it's only the "IN UK TO LIVE PERMANENTLY" section, what is the difference between a Biometric Residence Permit and a Biometric Residence Card, should we tick one or both, and is it okay to send my wife's (now expired!) BRP card? And I assume that everywhere it says "passport" they are not necessarily looking for a British Passport, just ID, right?

We've got everything else covered we think, and we plan to re-iterate our situation of waiting for her new FLR(M) visa extension and her entitlement to free healthcare in that Section 3C you quoted, in the 'other circumstances' section on page 3.

Thanks in advance for your amazing help once again...

Your wife is not on a visitor visa. Don't tick that option. Visitors are billed to use the NHS  (with 50% added to the bill) unless that service is free under present rules with that NHS.
Bottom of the page.
https://www.gov.uk/healthcare-immigration-application/who-needs-pay


Your wife is on a Limited Leave to Remain visa and for that visa to be granted, she pays the Health Surcharge. That IHS allows her to have everything that a resident Brit can have for free on the NHS, except IVF treatment.
https://www.gov.uk/healthcare-immigration-application

Section 3c of the Immigration Act 1971, stops her being treated as an overstayer/illegal if she has submitted a valid, in-time application and her visa expires before the Home Office make a decision.
https://www.gov.uk/government/publications/3c-and-3d-leave

1. Page 1: OFFICIAL DOCUMENTATION - I think we should provide a Current Non-EU Passport (my wife's US passport), but should we tick 'visit visa' too and attach her expired BRP?

Do not tick 'visit visa', because she does not have a visitor visa. Visitors are not allowed to live in the UK and are not eligible to use the NHS for 'free' - they have to pay 150% of the treatment cost for using the NHS.

For the official documentation, I would suggest ticking the following:
- Current non-EU passport
- Other (and give details of the expired BRP card)

2. Page 2: do we fill in the "IN UK ON VISA" section, or the "IN UK TO LIVE PERMANENTLY" section? We don't know which applies to us haha, it feels like both?

I would fill out the 'IN UK ON VISA' section... because she is in the UK on a visa, and does not yet have permission to live here permanently (ILR).

And she would therefore provide:
- her current passport
- her expired BRP card
- evidence of paying the IHS surcharge
And also
- evidence of submitting her new FLR(M) application

3. Page 2: Assuming it's only the "IN UK TO LIVE PERMANENTLY" section, what is the difference between a Biometric Residence Permit and a Biometric Residence Card, should we tick one or both, and is it okay to send my wife's (now expired!) BRP card?

Biometric Residence Permits (BRPs) are visas that are issued to people who have permission to live in the UK for more than 6 months

Biometric Residence Cards (BRCs) are not visas, they are EEA Residence Cards for family members of EEA citizens. These are no longer issued as they have been replaced by 'settled' or 'pre-settled' status under the new EU Settlement Scheme

And I assume that everywhere it says "passport" they are not necessarily looking for a British Passport, just ID, right?

By 'passport' they mean a passport from a country of which she holds citizenship.

3. Page 2: Assuming it's only the "IN UK TO LIVE PERMANENTLY" section, what is the difference between a Biometric Residence Permit and a Biometric Residence Card,

From what I recall, one is for those who used the European Union Directive and EU Court Rulings to live in the UK (which then became the EU Settelement Scheme under the UK Immigration rules following Brexit) and the other is for what your wife did, used the UK immigration rules to live in the UK.

EDIT. From the gov.uk site

" Overview

You can no longer apply for a UK residence card, also called an EEA biometric residence card (BRC).

You cannot use your UK residence card to confirm your right to live, work or rent in the UK.

To continue living in the UK, you need another type of permission to stay, such as settled or pre-settled status under the EU Settlement Scheme.

You need to prove your right to work online or prove your right to rent online instead."

A UK residence card or BRC is different from a ‘biometric residence permit’ (BRP). You might have a BRP if you have a visa for more than 6 months, indefinite leave to remain or certain Home Office travel documents. BRPs say ‘residence permit’ on them.
https://www.gov.uk/uk-residence-card