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Delegated Legislation Committee Debates

National Care Standards Commission (Fees and Frequency of Inspections) Amendment (No.3) Regulations 2002 and Domiciliary Care Agencies Regulations 2002

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Sixth Standing Committee

on Delegated Legislation

Thursday 30 January 2003

[Mr. John Cummings in the Chair]

National Care Standards Commission

(Fees and Frequency of Inspections) Amendment (No. 3) Regulations 2002

2.30 pm

Mr. Simon Burns (West Chelmsford): I beg to move,

    That the Committee has considered the National Care Standards Commission (Fees and Frequency of Inspections) Amendment (No. 3) Regulations 2002 (S.I. 2002, No. 3211).

The Chairman: With this we can consider the Domiciliary Care Agencies Regulations 2002 (S.I. 2002, No. 3214).

Mr. Burns: I should explain at the outset that the official Opposition warmly welcome the debate. The reason that we prayed against the two orders is not that we violently object to them and want to press them to a vote. It is that, as Ministers will be aware from several Standing Committees considering primary legislation that gives the Government the power to issue regulations, we are concerned that more and more secondary legislation is being passed by the negative procedure. That has a dumbing-down effect that acts against Parliament's opportunities to hold the Executive to account and properly to examine measures that will have an extensive impact on a large sector of long-term care.

We also want to raise several issues that are either unclear to us or cause us concern. In some respects we welcome elements of the two statutory instruments, but we believe that it is only right, in carrying out our duty of scrutinising Government actions, that we debate them.

We understand the reason for statutory instrument No. 3211. It seems, from studying the Government's proposals, that they intend, among other things, to change from a calendar year to a financial year in relation to the timing of fee payment for licenses. I draw to the Minister's attention the fact that regulation 2(4) provides that the fees are to be

    ''£122, on the date on or after 1st April 2003''


    ''£500, on the anniversary first occurring on or after 1st April 2003 of the date on which the fee payable in relation to the making of an application for a licence under the 1957 Act was last paid.''

That seems on the face of it to be quite a significant increase. I should appreciate the Minister elaborating on the reasons for those levels of fees and how they will work.

Another issue of importance on which I should like clarification—there seems to be confusion about it—has been raised by Crossroads, the voluntary organisation concerned with caring for carers. As a quality service provider, it welcomes the regulation of the domiciliary care sector and the fact that the standards, although broad-ranging, are comprehensive

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and should ensure consistency in the quality of care provided. No member of the Committee would disagree about the importance of consistency: we are all committed to the highest standards and quality of care for some of the most frail, vulnerable and elderly people in society. However, Crossroads has some concerns, and I should be grateful if the Minister provided assurance and clarification.

We are concerned about the financial impact of the regulations on organisations such as Crossroads, because each branch has to register at a cost of £1,100, with an additional £300 being payable to register the manager. Depending on the definition of a branch, it is possible that the cost may be even higher. Although the Government have made a concession for small agencies, they are defined as having no more than two members of staff, and few organisations will fall into that category.

Will the Minister confirm that that interpretation of the regulations is correct and, if it is, will she explain why the Government are taking that approach? We also need to know the exact the definition of a branch, and whether each office will have to register. As I said, the Government have made a concession for small organisations, but we are concerned that it will apply in relatively few cases. Does the Minister have any figures to reassure us about that?

When the impact of fees on small organisations was raised in the House on 23 May last year, the Minister replied that the full costs would phased in over five years. That will, no doubt, be welcome because it will help people to adjust to the new regime: for example, domiciliary care providers will pay only 24 per cent. of the cost in year 1. However, information from those at the sharp end suggests that care providers are currently unaware of the costs that could be imposed by the Government. Will the Government ensure that the information is drawn to people's attention, so that they are fully aware of the potential impact of those costs? I accept that there has to be a licensing fee, but is important that it is done in a way that does not unfairly or harshly impinge on some groups, who may find the fees difficult to absorb.

I turn to statutory instrument No. 3214, the Domiciliary Care Agencies Regulations 2002. Like many in the sector, we broadly welcome what the regulations are designed to achieve. The new standards are broad, comprehensive and wide-ranging and they would ensure consistency in the quality of care provided for the elderly. As I said earlier—I repeat it so that there can be no misunderstanding either today or in future—we warmly welcome the highest quality of care for the elderly, whether it is provided in residential homes, through domiciliary care at home, or through the voluntary sector. It is crucial that we have the highest possible standards and we have no argument with the Government in that aspiration.

I am concerned, however, about what I see as a serious omission in the requirement for checks on care staff in respect of criminal records and work with vulnerable adults. We all know that there have been considerable problems since the new requirement for checks by the Criminal Records Bureau was introduced on 1 April last year. I hate—I think I

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hate—to tell the Minister, ''I told you so,'' but I was a member of the Committee that considered the Care Standards Act 2000, which introduced that requirement, as was her predecessor, now the Minister of State, Department of Health, the right hon. Member for Barrow and Furness (Mr. Hutton). In that Committee we warned Ministers repeatedly that, however needed and welcome it was, to bring in the requirement all in one go on 1 April was a mistake because the sheer number of people involved was so great that the Criminal Records Bureau would not be able to cope with the work load.

I imagine that if the Minister of State were to read the Committee Hansard and read what he said at the time, he would probably be covered in shame. He claimed until the bitter end that there would be a turnaround time of 10 working days for those with whom no problems arose. He maintained—naively, in retrospect—that that would be the case from the start of the new system. We know now that that has not been the case, to our cost and the cost of some of our constituents who have had their careers and their financial position adversely affected by this muck-up.

The process was so shambolic that the Government had to perform a U-turn just before the summer recess. They relaxed the requirements so that they only applied to new people entering the care field until April this year, by which time—they hoped—the backlog and the problems would have been overcome and everyone would be liable under the original rules. However, we now know that the problem is continuing, and the Government through the regulations are seeking a further relaxation, even if it is only for a temporary period.

I find it odd that under the regulations only certain categories of people have to go through a criminal records check. Categories of people mentioned in schedule 2 to the regulations, such as registered providers and managers of agencies, will need a criminal record certificate, but domiciliary care workers will not be subject to that requirement. Certain information will be required of domiciliary care workers, as outlined in schedule 3. They will have to provide the obvious things such as name, address, date of birth, proof of identity and details of any criminal record

    ''of which the person has been convicted, including details of any convictions which are spent within the meaning of section 1 of the Rehabilitation of Offenders Act 1974''.

In effect, that leaves the onus on the individual to make employers aware of whether they have a criminal record—it is not being done through the Criminal Records Bureau. That is of great concern.

The vast majority of people who want to work in the care sector are genuinely tireless workers, devoted to doing a decent job providing quality care and looking after the comfort of those for whom they have responsibility. However, there will be—as there always is—a small core of people who, for a variety of reasons, are not so honest, decent and caring and who will not provide the information if they believe that it will be a barrier to their search for employment in that field. That is the wrong place in the system to put the onus, and it will lead to the potential for great abuse.

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The whole care sector will be left open to abuse that the Government have been so determined to minimise and stop.

Will the Minister clarify the situation, and confirm that my interpretation of the regulations' aims is correct? If she does not agree with my analysis, is she as concerned as I am that what has been done—perhaps with the best of intentions—is, on reflection, not the wisest and most sensible way to proceed?

Let me briefly raise the process of registration under part II of the proposal. As the Minister knows, each organisation is required to identify an individual to be registered as the fifth person, who has overall responsibility for the service and who is expected to be of good character and integrity. We do not disagree with those provisions. However, in the case of a small voluntary organisation, that person will be a member, usually the chair, of the board of trustees, who are all volunteers. The provisions seem to be aimed primarily at the private sector, as it is unrealistic for them to be met by voluntary organisations. How can volunteers demonstrate that they fulfil the provisions in a meaningful way?

The process requires the individual to complete a lengthy document detailing their work experience, educational background, qualifications and health record and to participate in an interview with an inspector from the National Care Standards Commission. That seems to be taking a sledgehammer to crack a nut when it comes to volunteers in the voluntary sector. Trustees have a governance, rather than a managerial, role and the level and nature of the information required is inappropriate. It has already resulted in a number of chairs resigning at a time when it is extremely difficult to recruit trustees. Those in the field have commented that they expect the number of people putting themselves forward to such voluntary positions to fall. When people examine the criteria that have to be met, they do not think they will fulfil the requirements. People are not putting themselves forward for that reason, which is a worrying trend.

Many voluntary organisations encourage service users and carers to become involved in the governance of services. They may lack work experience and relevant educational qualifications, or they may have health difficulties, but they bring experience and expertise to the governance role. In voluntary organisations, the skill base is shared across the board rather than focused on one individual. It is therefore inappropriate to expect an individual to put himself or herself forward to fulfil the role of the responsible person. That person will be expected to be legally responsible for the organisation, which is a huge responsibility and an unrealistic burden to undertake.

An organisation with charitable status shares responsibility among a number of people. Why cannot such a provision exist for voluntary organisations such as domiciliary care agencies? The organisations will have to pay registration fees every time a new person is made the responsible person for that organisation. As these are charitable voluntary bodies, their board of trustees is elected and

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individuals tend to move on more than in the private sector. Having to pay registration fees for every change that occurs will give rise to a proportionately large cost, which small, non-profit companies will find excessively burdensome.

The regulations do not acknowledge the difference structures in place in the voluntary sector. This is particularly disappointing given that the Government's recent cost-cutting review has looked at finding ways to overcome the barriers that make it hard for not-for-profit organisations in the care sector to deliver high-quality public services and engage in partnership with the public sector.

Voluntary sector organisations play a key role in the delivery of domiciliary care services. Unless the concerns I have raised are addressed, there is a risk that high-quality services will be lost and the market will be unable to cope with user demand. I look forward to the Minister's explanations and I hope she will be able to reassure me about my concerns.


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Prepared 30 January 2003