Fifth Standing Committee
on Delegated Legislation
Thursday 30 October 2003
[Mr. Jimmy Hood in the Chair]
Care Standards Act 2000
(Domiciliary Care Agencies and
Nurses Agencies) (Amendment)
(England) Regulations 2003
Mr. Simon Burns (West Chelmsford): I beg to move,
That the Committee has considered the Care Standards Act 2000 (Domiciliary Care Agencies and Nurses Agencies) (Amendment) (England) Regulations 2003 (S.I. 2003, No. 2323).
The official Opposition prayed against the regulations because we have serious concerns and misgivings about certain ways in which the Criminal Records Bureau has been conducting its business following the changes that were applied to care workers in April 2002.
In Committee in January 2002, the former Health Minister, who is now the Minister for Industry and the Regions, said of the CRB checks for care home workers that
''these regulations and the standards that underpin them enable us to . . . provide some consistency to service providers.''[Official Report, Ninth Standing Committee on Delegated Legislation, 30 January 2002; c. 30.]
Sadly, however, there has been no hint of consistency since the changes in the regulations were introduced in April 2002. Indeed, since their inception, the implementation of CRB checks has, frankly, been nothing less than shambolic. Care home owners and managers up and down the country have been particularly hard hit by the muddled and disorganised way in which the checks have been enforced and by the excessive delays in disclosures being issued to staffdelays that my hon. Friends and I warned the Government about in Committee in January 2002. It is particularly frustrating for me that the very problems that we warned the Government about have arisen to the detriment of care home owners, operators and, most significantly, the vulnerable elderly residents of such homesthe very people whom we are striving to protect. A little less misguided self-congratulation and arrogance on the part of some Ministers would not go amiss. The elderly residents and owners and managers of care homes up and down the country deserve nothing less.
It is also frustrating that the Government still refuse in many ways to listen to the warnings and pleas that we are making to them about how the system operates. Neither Conservatives nor the care home sector opposes CRB checks root and branch; we are merely concerned about their over-vigorous and over-zealous enforcement. I strongly urge the Government to listen to our concerns and the anxieties of the care home
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sector before rushing ahead and causing greater distress to a sector thatas Ministers will know, although they are often in denialis in crisis.
In principle, the Conservative party supported and welcomed the introduction of CRB checks for care home staff. We all desire the best-quality and safe care for the elderly, some of whom are the most vulnerable people in our society. We have a duty to protect those people and to ensure that they are looked after and cared for by the most suitable people. However, we must also be pragmatic and realise that the sector, which is already struggling under considerable strains and pressures, needs to be helped in every possible way to attract the best-qualified, able and dedicated staff to work in care homes. Those two needs are not mutually exclusive. However, over-zealous enforcement of CRB checks from 1 October this year will lead to considerable staffing problems in the care home sector.
These regulations add new domiciliary care agency staff and nursing agency staff to the regulations that have been in place for care home workers since 1 April 2002. We have considerable concerns about that wider regulation. Because of the delays in processing CRB disclosures to potential staff in June 2002, the Government, through the National Care Standards Commission, issued sensible and pragmatic interim guidance to care home operators allowing staff to begin work, subject to robust employment procedures and supervision, while they waited the month or so for their CRB application to be assessed. That pragmatic interim guidance was withdrawn without warning at the end of September this year. I fear that that will create considerable problems in the care home sector.
The enforcement of the regulation will lead to yet further home closures and misery for residents of care homes and their families. Providers are concerned about the consequences of the decision to reinstate the requirement to have a disclosure in place before employment begins. They point in particular to the time scale of the entire recruitment process. There could be a delay of up to 50 days between a member of staff handing in their notice and a new member of staff starting work. That will be problematic for care home owners as it is an area where it is already difficult to find staff. That also presumes that all the evidence of identity is immediately available and that the CRB application form is completed perfectly.
Although important, it must be remembered that the CRB check is only one element of a recruitment procedure. The current preoccupation with the mechanism fails to take account of the significance of the remainder of the recruitment procedure as set out in schedule 2 of the Care Home Regulations 2001 and reinforced in the interim guidance. Care home operators are essentially being forced to choose between two evils. They will be operating outside the law if they employ staff without a complete CRB check and they will equally be in breach if they fail to staff their care home adequately as they have a statutory duty to provide appropriate staffing at all times.
The Minister for Industry and the Regions, who previously dealt with the matter, gave a pledge for consistency on the issue, yet there have been more
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changes than the Secretary of State for Health has had jobs. Indeed, reinforcing the hollowness of the pledge, the NCSC announced at the end of September a revision of how it will assess CRB applications. From now on, as undoubtedly the Minister will tell us, the NCSC will be
''exercising discretion on CRB applications''.
While that was of course welcomed because it is a step in the right direction towards a common-sense approach and represents a climbdown by the Government in the face of reality, it still leaves the sector in great confusion.
The Parliamentary Under-Secretary of State for Health (Dr. Stephen Ladyman): I will deal with the bulk of the hon. Gentleman's points in my winding-up speech, but I cannot let him get away with saying that this is a climbdown by the Government. The NCSC, as he well knows, is independent of the Government. Its independence was established by the House. If the NCSC has decided to change its position, he cannot hold the Government responsible.
Mr. Burns: I am grateful to the Minister for that, but however independent the NCSC is, it is also sensitive to the needs and wishes of Ministers. It would be interesting if he could back up his statement by telling the Committee about the conversations he had with the NCSC on this issue before and just after it made this change in policy. If he told us the gist of those conversationsI suspect that he will notmembers of the Committee would be in a better position to judge whether his intervention is totally accurate or just a bit of spin and flannel to get himself and the Government off the hook.
As I was saying before the Minister's interesting intervention, the pragmatic interim guidance that allows care home staff to start work while their checks are being carried out was scrapped at the end of September. In its place, the NCSC will now judge applications case by case. The trouble with that, however welcome it may be, is what exactly it means. We do not know on what basis discretion will be exercised. Perhaps the Minister can enlighten us, because that will be valuable information for the care home sector. Rather worryingly, it sounds rather like a lotteryit is in fate's hands how an application is dealt with.
Although there has been is a major step forward, the Government must finish the job. The interpretation of the guidance is to be in the hands of individuals, but their attitudes and the way in which they take decisions vary, which is the problem in the inspection regime. What may seem like a welcome step in the right direction will not be so in practice, because decisions taken by some individuals will not be consistent with decisions taken by others or with the intentions of the commission. That needs to be cleared up, and not simply by the Minister saying, ''This is what the commission wants and this is what will happen.'' It does not happen like that in the real world and it will be of little consolation to people reading his comments if that is all he has to say.
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Care home owners and staff need simple, standardised guidance so that everyone in the sector is treated fairly and consistently, rather than piecemeal, because of inconsistency and fudge. The sector believes that it would be appropriate, pragmatic and sufficient for the provider to be required to ensure that an application is made for a CRB disclosure as soon as is practicable after the job offer is made and no later than the day on which a worker takes up employment. A record should be made and retained of the date on which the application is made. That is in line with the June 2002 interim guidance, which is sensible and pragmatic. It ensures a high and robust level of protection for vulnerable and elderly care home residents and ensures that care home operators are better able fully to staff their homes to the desired and required levels.
I understand that the interim guidance was scrapped on 1 October, when the new provisions for agency staff were introduced, as the CRB was meeting its apparent target of processing 90 per cent. of applications within four weeks. That is obviously good news after the previous shambles, about which the Opposition warned the Government in Committee time and again, if only because of the sheer number of original people who had to be processed. That could not be done under the system in place, and the Government had to recognise that shortly after April 2002. Although it is good news that the CRB is apparently improving its performance, the problem is that the process still takes too long, because, whatever the Minister says, the average time being taken to carry out checks on those who have no problems is about four weeks, which is a long time for an employee and an employer to wait before someone can start work.
Why should potential employees have to wait a month to start work after being offered a job in a care home, when they could walk down the road and start a job in a supermarket on the same day for the same money? The problem with the delays in carrying out checks on what are relatively low-paid jobs is that people will take other employment if they can start sooner, rather than having to wait to be checked. It is unreasonable to expect people to wait for such a time, but it is important for CRB checks to be carried out on potential care staff, as elderly residents in care homes must have the maximum possible protection.
My suggestions, which are supported by the care home sector, are the most reasonable, pragmatic and safe method of protecting elderly residents and ensuring a high degree of security for them, while also removing the existing barriers, especially the four-week wait for a CRB disclosure, which prevents care home operators from adequately staffing their homes.
The Minister is smiling, and I surmise that the only reason for that is that he will assure the Committee that it is not taking four weeks for a straightforward check to be completed. I must warn him that all the evidence from the real world says that it is and that the high-falutin', over-optimistic assessment made by his predecessors at the Department of Health in previous Committeesthat it would take only a maximum of
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10 working dayswas false. It is not happening in reality, so I hope that the Minister will not simply say that it is.
On a positive note, I thank the Minister for writing to me on 26 September about the issue, which is obviously of great concern to many people. I note with interest his comment that the Government will review all the care home regulations before April 2005, which will include the regulation requiring CRB checks. That is welcome, but I strongly urge him to review the checks now and take on board the suggestions that the sector, my hon. Friends and I have made and are still making to Ministers. We must ensure that a more pragmatic approach is taken, without compromising safety, to assist employees and employers in the care home sector.
I welcome the fact that the Minister is prepared to review the regulations by 2005, but the delay is unnecessary. It is within his bounds and powers to order that review immediately. He has clearly recognised the fact that there is a problem and a need for a review, so why is he waiting until 2005 to carry it out? Why does he not do it now, so that we can resolve a problem that has been the bane of many people's lives from the moment the system was introduced on 1 April 2002?