Health and Social Care (Community Health and Standards) Bill

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Chris Grayling (Epsom and Ewell): No one could dispute or disagree with the aspirations of the hon. Member for Sutton and Cheam in wanting to ensure that all vulnerable people in our society receive the support that they need. I am sure that I am pre-empting the Under-Secretary's comments—I offer my support for them in advance—by saying that if we wrote vulnerable adults into the Bill along with vulnerable children, we would either have to go to the extreme of listing every group in society that could be looked after by the bodies, or everybody would have to become a priority. That is the job that those organisations are there to do.

Mr. Burstow: I understand that argument, which was last paraded when we made the point during the passage of the Care Standards Bill a few years ago. Is the hon. Gentleman arguing that there should not be equity in the treatment of vulnerable adults and children in securing the very highest standards of care and treatment?

Chris Grayling: My argument is simply that that is the job of those organisations. If we bracket vulnerable children and vulnerable adults, that equals everyone in our society who is vulnerable. The job of those organisations is, in the case of CHAI, to look after patients, and in the case of CSCI, to look after the vulnerable. Incidentally, I am a bit confused as to whether it is pronounced ''sea-sky'', which sounds like a motto for the Fleet Air Arm, or ''Ciskei'', which is a province in South Africa. CSCI's job is to look after all vulnerable people, and I am not persuaded that we need to amend the Bill or make it more complicated to reflect that.

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Dr. Andrew Murrison (Westbury): My hon. Friend may have received some correspondence from Help the Aged, as I did today, that deals with that specific point. Its concern is that it has noted the special treatment that the Bill gives to children, and is wondering what is in it for elderly people. One could go on and on. I entirely agree with my hon. Friend. He is right to point out that the NHS is there for everyone and if we start balkanising it in the way that some suggest, we will have real problems.

Chris Grayling: I am grateful to my hon. Friend for that comment. There is a particular issue relating to children. Society as a whole wants to ensure that children who are not in a position to fight their own corner, as they do not have age or experience, are adequately protected. None the less I agree, as I too have regular dealings in my constituency with people who have learning disabilities and those who have mental health problems. I want to see this organisation do the job for them.

I do not disagree with the aspirations of the hon. Member for Sutton and Cheam. In order to keep the

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Bill simple, however, it is the Committee's message to those who are going to work for CSCI—and the intention of the whole House—that we expect them to ensure that they look after the interests of those vulnerable people. I am not persuaded that we need to add to the Bill to achieve that.

Mr. Lammy: The hon. Member for Epsom and Ewell (Chris Grayling) makes the point incredibly well. There is not much to add. The amendment would place an obligation on the new inspectorate to appoint a director of rights for vulnerable adults, and would provide an additional duty to have a regard for and to safeguard and protect the rights of vulnerable adults. I am sure that those motives are laudable, but they must be resisted for two reasons.

There is nothing to prevent CHAI or CSCI from having a director responsible for vulnerable adults but we do not see the need for legislation in that area. The original reasons for the role of a director of children's rights were very clear. Children in care who are looked after in boarding schools away from home are especially vulnerable and there is public consensus about that. There is not, however, public consensus about vulnerable adults, and it is unclear how we would define vulnerable adults, when social services are in the business of providing care standards services for vulnerable people.

The hon. Gentleman has a point, philosophically, but technically, we do not see the need to put this issue in the Bill. I would gently make the case that there is a view—as articulated so well by the hon. Member for Epsom and Ewell—that the rights of the child are well established. Vulnerable adults are a much larger group, and there is a point of view that having a director for vulnerable adults might mean that the case for vulnerable people achieving their rights might be undermined. After all, they are adults, and people might look to the director, not to themselves. For that reason, I resist the amendment.

Mr. Burstow: I am grateful to the hon. Member for Epsom and Ewell and to the Under-Secretary for clearly setting out the Government's position. [Interruption.] I deliberately conflated that. I just want to pick up on a couple of points that the Under-Secretary made. He talked about how one would go about defining a vulnerable adult. I simply draw his attention to section 86 of the Care Standards Act 2000. The Government seemed to have no difficulty in coming up with what was presumably then conceived by parliamentary counsel as a working definition. In respect of children's services there is now a means to ensure that the interests of the child are central to the work of the commission, which is, after all, under pressure from the providers—the subject of regulation in many respects. My concern is that there is a buttress, through regulations and statute, for the rights of children, but there is no similar buttress in respect of the rights of adults.

The hon. Member for Epsom and Ewell rightly asked what groups of people we were talking about. He went on to talk about people with learning disabilities. I would add to that people who lack mental capacity. The Government have, for some years, been contemplating introducing mental

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incapacity legislation. They have not yet done so. Such legislation is long overdue and would go some way to allay some of my anxieties about the absence of something within CSCI to deal with the issues. It is clear that we will not make progress on the matter today. This is a missed opportunity to establish parity of esteem and treatment in relation to the rights of adults who are vulnerable and lack capacity to make decisions for themselves and those of children, who the Minister is rightly concerned about and who similarly lack the ability to articulate their needs as clearly as we would wish. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 6, as amended, agreed to.

Clause 38 ordered to stand part of the Bill.

Schedule 7


transfers of property and staff, etc

Amendment made: No. 342, in

    schedule 7, page 117, line 40, leave out 'notify' and substitute 'inform'.—[Mr. Lammy.]

Chris Grayling: I beg to move amendment No. 466, in

    schedule 7, page 117, line 42, leave out from 'terminated' to end of line and insert

    'on the last day of operation of the transferee when any notice period will conclude under the current contract of employment;'.

The Chairman: With this it will be convenient to discuss the following:

Amendment No. 467, in

    schedule 7, page 118, line 3, leave out 'substantial' and insert 'significant'.

Amendment No. 468, in

    schedule 7, page 118, line 4, at end insert—

    '(3A) An employee shall, in circumstances where a significant change to his working conditions takes place, have the right to take redundancy under the current contract of employment.'.

Chris Grayling: The amendments are designed to address what might be a couple of anomalies in the area of the schedule that deals with employment and employment rights. I am looking forward to the Under-Secretary's clarification.

I will deal with the three amendments in turn. The first relates to the timeline of the process when someone decides, for reasons set out, that they object to the transfer of employment rights. Paragraph 4(1) states:

    ''Paragraph 2 does not operate to transfer the rights and liabilities under an individual's contract of employment if, before the transfer takes effect, he informs the transferor or transferee that he objects to the transfer.''

If a person makes a decision to that effect late in the day, immediately prior to a transfer taking place, they would not necessarily enjoy full right of notice. Someone on three months' notice might want to work out their notice period, because many people find it easier to seek new employment from within a workplace than when they have left it and are de facto unemployed.

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Clearly the question might be asked: why has that person left it until the last possible moment to take that decision? It may not be they who have delayed. Let me give the Committee a specific example in relation to the establishment of the Health Protection Agency on 1 April. Throughout February and March, I and other hon. Members tabled written questions to Ministers about various aspects of the human resource element of the transfer of staff from previous agencies, such as the Public Health Laboratory Service, to the Health Protection Agency. Ministers will be aware that many of the negotiations on transfers of employment ran right up to the wire. Indeed, I believe that many were not concluded by 1 April when the transfers took place.

It is conceivable that an employee might not be aware until the last possible moment of the nature of the employment that they were being moved to, so they might not be able to give the three months or one month's notice, or whatever the notice period is, before the transfer was due to take place. Given that the majority of employees are probably sitting in the same workplace, an employee who has chosen to give notice rather than stay in employment should be able to remain in that workplace for the full notice period. Amendment No. 466 is designed to make it easier for them to do that. We want such employees to be able to fulfil their notice period.

Amendment No. 467 may appear at first glance to be a small change, but we believe that it is important. It relates to paragraph 4(3) of the schedule, which reads:

    ''This paragraph is without prejudice to any right of an individual employed by a transferor to terminate his contract of employment if (apart from the change of employer) a substantial change is made to his detriment in his working conditions.''

We want to change the word ''substantial'' to ''significant'', because even a small change in a person's conditions of employment may be significant to them.

Let me give the Under-Secretary a couple of examples. One might be a minor modification to a shift pattern that occurs as a result of making the transfer and bringing two groups together on the same site. For example, a mother might find that even a small change in a shift pattern makes it impossible for her to do the school run. That is one simple example, but there will be a variety of other situations in which a small change to the terms and conditions of employment makes it difficult for a person to continue in that employment. We simply ask that the word ''significant'' be included to reflect individual circumstances, which any independent third party would reasonably judge to be a major change to a person's working conditions. I do not believe that that change would damage the Bill in any way. It may actually help in what I suspect will be unusual circumstances. Should they arise, it is an important change of emphasis, which can help the employee concerned.

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The third amendment is more of a probing one, designed to explore the redundancy rights of employees in such a situation. The amendment says:

    ''An employee shall, in circumstances where a significant change to his working conditions takes place, have the right to take redundancy under the current contract of employment.''

What rights do employees have where they are being transferred from a legacy agency to a new agency? If, in their view, the nature of the job and the working conditions change as a result of that transfer and they can credibly argue that a significant change has taken place, what rights do they have to redundancy? Will the Under-Secretary explain that and set out for us how the employment rights of those people are protected when they make such a transfer?

I should be grateful if the Under-Secretary addressed those points. What is the time line? Do employees have to work out their notice period if they have not been able to give the full notice period before the date of transfer from the old agency to the new? Would he accept the logic of changing ''substantial'' to ''significant'' to strengthen the rights of employees in such a situation? Will he explain the rights of redundancy of people caught up in changes as a result of a move from an old agency to a new one?

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