Leamington Spa Chambers

TIME SHEET FRAUD IN THE NATIONAL HEALTH SERVICE

What happens when NHS employees are caught claiming for hours that they are not entitled to claim for? An article by David Wells, an independent solicitor, and Lee Gledhill, a barrister at Leamington Spa Chambers

The National Health Service (NHS) constantly surveils through audit its staff, systems, and estate, to ensure that there is financial compliance, good financial governance, and an active risk-reduction in fraud occurrence. The NHS in the year 2023 to 2024 is said to have suffered a circa £1.3 billion loss due to fraud, bribery, and corruption. Between 2023 – 2024, the NHSCFA received a total of 6,367 referrals alleging fraud or similar conduct.  There were 2963 reports of NHS staff fraud from 2023 to 2024. By way of example, an NHS report records that:

“64% of reports related to false income and hours, which could be an attempt to supplement income and relieve financial pressures on a household. Staff were reported to be working whilst on sick leave, working elsewhere during their NHS contracted hours, and inflating income by falsely claiming for hours and services not worked, in addition to false expenses claims. Further reports were received around false representation to gain employment, nepotism in recruitment by senior staff, pay band uplift for certain shifts and services, abuse of position / NHS assets, and staff collusion.

(Sources: the NHS Counter Fraud Authority (NHSCFA)).

Timesheet Fraud – How is it Realised?

An area that is heavily scrutinised by the NHS is timesheets that are submitted by employees for hours worked for the NHS. With all of the various shift patterns, responsibilities, and locations where employees work, there is a difficulty in the NHS identifying even a single incident of fraud. 

Whether it is by double-claiming, claiming for shifts not worked, juggling job plans to work at times contrary to agreed contractual commitments, claiming while sick, notionally working in two places at once but putting in a claim for the same or similar hours, having a counter signatory that is in on the fraud, falsifying counter signatures, claiming to be at work when one is skiving, keeping over payments that were made by the NHS in error, a failure of the employee to the list is endless.

The NHS reported that:

“Working elsewhere whilst on sickness leave is a known threat within the NHS. Intelligence suggests staff could be falsifying sickness to receive both sick pay and extended leave, with some alleged to be working for other employer(s) or their own private work or business during their sickness period. Multi-employment / dual employment is also likely, where staff work simultaneously at another NHS trust whilst on short/long-term sickness absence.”

“It is also a possibility that inflation of income and hours, including claiming for hours, shifts, overtime and patient care services, which were not worked, is occurring, as staff can manipulate their timesheets and e-rostering systems to inflate their income. NHS staff may also retrospectively electronically book bank shifts on the rostering system with the intent to fraudulently claim for payment having not worked.”

“It is likely some NHS staff are working elsewhere during contracted times. For example, staff are alleged to be working for another NHS Trust or employer suggesting dual or multi-employment and / or working privately during their substantive contracted post or hours. Additionally, intelligence suggests clinical staff are completing privately paid practices, services, and / or treatment of private patients during NHS contracted hours.”

(Sources: the NHS Counter Fraud Authority (NHSCFA)).

NHS Counter Fraud

The NHS Counter Fraud Authority has the statutory duty to investigate allegations of fraud raised by the various NHS departments. 

Even where there is not a prosecution, an NHS employee might be required to pay back to the NHS monies that they were not entitled to. Payment plans might be agreed in some instances. The NHS will bring a civil claim where there is a refusal to reimburse monies that have been received in error, and the retention on monies that an employee is not entitled to keep could in its own right lead be deemed to be criminal conduct.

NHS Counter Fraud Interviews

Those being investigated by the NHS Counter Fraud Authority will usually be invited to attend a voluntary interview held under the provisions of PACE. PACE is the abbreviation for Police and Criminal Evidence Act. The PACE provisions set out various safeguards for those being interviewed. A person being interviewed under PACE is assured certain rights, including the right to representation, and the right to consult a legal representative before answering a question. In all voluntary interviews, the person being interviewed can leave at any time. NHS Counter Fraud Authority staff do not have a power of arrest. However, if an individual declines to be interviewed there is scope for the police to arrest them, so that they can be interviewed by NHS Counter Fraud staff. In such circumstances, the interview is not voluntary and the person being questioned is not able to leave until formally released from custody. Arrest is rare in NHS fraud investigations.. An alternative to being interviewed is two answer questions, put by NHS Counter fraud investigators, in writing, in some instances.

In our experience, active participation in PACE interviews can often clear up misunderstandings and lead to no criminal prosecution being brought, but each case turns on its own facts.

Representations can be made by lawyers on behalf of the person under suspicion.

 

The NHS Disciplinary Process

Where there is a conviction for fraud, the NHS will likely convene a disciplinary hearing, and likely dismiss the employee for gross misconduct. Where there is no criminal prosecution, the NHS may well still bring disciplinary proceedings against an employee alleged to have committed fraud, such conduct being said to undermine “trust and confidence in the employee”. 

AN HPAN letter might also be issued, which alerts other NHS regions about the ex-employee.

Registered Professionals

Registered professionals are also likely to be referred to their regulators. Regulators can also investigate allegations of dishonesty and fraud, independently of any criminal case. Regulators generally assess the evidence on the balance our probabilities, which is a lower threshold than the criminal standard of proof.

Defending Oneself Against Allegations of Fraud

The starting point for someone under investigation is to beware of committing, whether orally or in writing, to a response to the legitimately raised concerns, without being aware of the full (or sufficient) facts to be able to reply. Where an NHS employee out of panic starts to reply to concerns, they might inadvertently incriminate themselves, or give ambiguous or inconsistent answers or explanations, which become damaging to them over time, as more information becomes available.

Someone suspected of committing NHS counter-fraud may need to look at their phone records, diaries, financial receipts, to show where they were at the time of the alleged fraudulent activity. Witness evidence may need to be obtained to support the credibility of the that goes to historical facts or general character.

Owing to the various shifts that staff work during a 24 hour period, it will not always be clear where people were. The NHS Counter Fraud Authority will usually rely on staff rotas, but these are not always accurate as the final version may not have been correctly compiled, missing last minute changes. In some instances, there may be more than one rota for the same period being used by senior staff, which do not correlate on examination. If one version is lost, it may falsely implicate a member of staff in having committed fraud against the NHS.

Challenging the accuracy of NHS records is therefore one strand of a defence. Other stands of a stated defence will usually be dependent on the role of a defendant staff member’s personal working profile, their seniority, their contractual agreement, any local informal agreements that can arise at department or ward level – including last minute swaps or time owing arrangements.

Staff signatures on timesheets, hours calculated, the identity of the counter-signatories, and whether the hours claimed were worked in part or at all will require focus.

 

Going to Trial

Some doctors plead guilty to the offence of fraud, and will be sentenced accordingly. Others choose to go to trial. Most cases would be heard in the crown court, and be determined by a jury. The NHS Counter Fraud Authority would cal its witnesses, and they would be cross-examined by the defence. Then the defendant NHS employee would give evidence (if they chose to), and their factual and character witnesses would follow. The defence witnesses would be taken through their evidence by the defence legal team. The prosecutor would cross-examine each witness in turn. The NHS (represented by the Crown) would have to prove the allegations to the criminal standard of proof. The jury would therefore need to be satisfied “so that they are sure” of the defendant’s guilt. In fraud cases, there is a mental element to the crime that needs to be proved, as well as the acts or omissions in the commission of the alleged offence. A failure to prove either can lead to an acquittal.

 

The Mental Element of the Crime of Fraud – what was the defendant’s knowledge?

In most instances, the Crown must prove that there was sufficient mental awareness of what was happening at the time of the acts or omissions that constitute to conduct of the alleged crime.

 

The Acts or Omissions of the Crime – the conduct of the defendants, what did they do and not do?

Penalties for Fraud

Fraud always carries a penalty that is commensurate with the offending. There are sentencing guidelines which a sentencing judge must have regard to, so that there is consistency of approach in the courts across England and Wales. Such sentencing guidelines for fraud can be found at the Sentencing Council. The sentencing court will look at the aggravating and mitigating circumstances of the offence and the defendant’s personal circumstances. Offences against the public purse are viewed as being particularly egregious, and offences incorporating a breach of trust will be viewed as being more egregious still.

Good submissions require evidence of the personal circumstances of the defendant to be sentenced. Their personal financial position (and those of dependents) will be relevant, as will the ability to pay any fine or compensation. Testimonials can be deployed, too. An expression or regret and remorse and an apology can go some way to mitigate the history, but judge’s do not always weight this very much.

A prison sentence might follow, or a suspended sentence where there are exceptional reasons. A community punishment order might be imposed, which requires a number of hours of unpaid work to be completed. In some instances, the convicted person will be supervised by a probation officer over a long period of time, which requires regular meetings and evidence of good conduct. A compensation order will usually be imposed. The defendant will be required to pay the Crown’s costs (which may include the NHS Counter Fraud Authority’s costs). There will also be a requirement to pay a victim surcharge, which goes towards compensation schemes for the general public.

Some examples of time sheet fraud

Example 1

In one example, a doctor had accidentally double-booked shifts, and then realised she had to cancel one or the other. Rather than own up to the mistake of accidental double-booking, they played a game of trying to pacify both employers, and then cancelled one or the other shift last minute, claiming illness. This occurred over several days. However, the doctor still went to work in the other location. Being found out, they lied out of panic, and caused a much greater problem for themselves than they would otherwise have done if they had come clean. They looked dishonest, due to their panicked explanations, and ended up being disciplined for a lack of probity. Outcome: 12 month warning.

Example 2

A nurse went off early each day but still claimed for their full hours on their time sheet. This went on for months, and was later discovered. The nurse had to pay back the salary received for hours not worked. The nurse was sacked from her job in the NHS and was reported to the Nursing and Midwifery Council.

Example 3

A surgeon doctor employed by the NHS ‘sneaked in’ numerous private patients into a NHS list, and did not disclose this to any NHS manager. There was a correct procedure to follow which was deliberately ignored by the doctor. The doctor made significant gain. Other staff who had worked in NHS time on the private patient had therefore received payment for hours they should have been paid privately. There was therefore a loss to the NHS and a loss to the various employees who had lost out on higher rates of pay. Each member of staff would have filled out a timesheet to alert the NHS about the private hours worked, had they been aware. The doctor was investigated by NHS Counter Fraud. She had to pay back the monies, and she was disciplined, and faced the likelihood of criminal prosecution.

Example 4

A doctor who was supposed to be on shift went home, and supported their juniors colleagues by phone without going into the hospital. This was contrary to the contractual agreement that the doctor should be on site at all times. The doctor made false claims on their timesheets and forged signatures. The doctor received payments in the tens of thousands of pounds that they were not entitled to. The doctor was struck off the register and faced criminal justice consequences.

Example 5

A doctor falsified timesheets, claiming pay for hours that they were not entitled to claim for – that they had not actually worked. They were eventually discovered, then investigated and prosecuted by NHS Counter Fraud and served a jail sentence of 18 months. They had to pay back the monies by way of a compensation Order.

Example 6

A doctor was charged with earning salaries from two NHS employers for work that overlapped. They could not have been in two places at once. They were prosecuted under the Fraud Act 2006 for Abuse of Position.

Conclusion

It is important to take legal advice early on in an investigation and to take advice from counsel at the earliest opportunity.

If you are facing a timesheet fraud investigation or prosecution and would like advice or representation, contact Lee Gledhill at Leamington Spa Barristers Chambers, a specialist barrister in representing those facing allegations of or investigations relating to the commission of timesheet fraud against the NHS.

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